68 N.Y.2d 424 | NY | 1986
OPINION OF THE COURT
Defendant was convicted, upon a jury verdict, of robbery in the first degree (Penal Law § 160.15 [3]) and petit larceny (Penal Law § 155.25). The Appellate Division affirmed the conviction (111 AD2d 870) and the case is before us by leave of the Chief Judge of this court. Defendant argues to us that the
Miriam Jiminez, the complainant, testified at trial that in the early morning hours of May 17, 1981, she was accosted by two men in the lobby of her apartment building and robbed of $800. Jiminez, who was returning from her mother’s house in The Bronx, where her mother had given her the $800, stopped in a bar near her residence for a short time. Before leaving the bar, she had taken the $800 from her pocketbook and placed it in her right shoe. Upon arriving at her apartment building, she was accosted by two men. She recognized one of them as the defendant herein, someone she knew by first name, having seen him in the neighborhood on prior occasions. Jiminez testified that while his cohort brandished a gun, defendant held a knife to her neck and ordered her to hand over the money. Although Jiminez refused his demand and did not reveal where any money was secreted, defendant immediately grabbed her right shoe, removed the $800 and fled along with his accomplice. Jiminez then rushed to her second floor apartment and told her common-law husband about the incident. She testified, without objection, that her husband looked out the window and observed the defendant, who was also known to the husband, turning the corner on the run. Complainant’s husband was not called to testify during the trial.
During the charge conference following completion of the testimony, defense counsel requested a "missing witness” charge based on the People’s failure to call the complainant’s husband to testify, contending he was "a material witness and under the People’s control”. Notwithstanding that the People did not indicate any position on the matter, the court denied the requested charge.
In his summation defense counsel sought to attack the complainant’s credibility by highlighting the various witnesses who were not called to testify, although they could have corroborated various aspects of her testimony. Thus, defense counsel observed: "The husband. Whose husband? — the complaining witness(’s), husband of seven years. He certainly must
Under certain circumstances, the failure of a party to produce at trial a witness who presumably has evidence that would "elucidate the transactions,” requires a trial court, upon a timely request, to instruct the jury that an unfavorable inference may be drawn from the failure of the party to call such witness (People v Rodriguez, 38 NY2d 95, 98; People v Moore, 17 AD2d 57, 59, cert denied 371 US 838; see, Richardson, Evidence § 92, at 65-68 [10th ed]; McCormick, Evidence § 272, at 804-808 [3d ed]). As stated by the Supreme Court, "The rule * * * in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable” (Graves v United States, 150 US 118, 121). This instruction, commonly referred to as a "missing witness charge”, derives from the commonsense notion that "the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (2 Wigmore, Evidence § 285, at 192 [Chadbourn rev ed 1979] quoted in Laffin v Ryan, 4 AD2d 21, 25). Of course, the mere failure to produce a witness at trial, standing alone, is insufficient to justify the charge. Rather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party (see, Reehil v Fraas, 129 App Div 563, 566, revd on other grounds 197 NY 64; McCormick, op. cit.; Richardson, op. cit.; 1 CJI [NY] 8.53).
The burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify. In some instances,
It is to be emphasized that the "availability” of a witness is a separate consideration from that of "control”. "Availability” simply refers to the party’s ability to produce such witness. Surely, it would be unfair as well as illogical to allow a jury to draw an adverse inference from the failure of the party to call a witness when the party is unable to do so (see, 2 Wigmore, op. cit., at 199). So that, if the party opposing the charge can demonstrate, for example, that the witness’ whereabouts are unknown and that diligent efforts to locate him have been unsuccessful (People v Sharp, 107 NY 427, 465; People v Griffin, 100 AD2d 659, 660; People v Williams, 34 AD2d 1046); or that the witness is ill or incapacitated (Reehil v Fraas, 129 App Div 563, 567, supra), the charge should not be given for the inference that the witness has not been called because of his anticipated unfavorable testimony has been negated.
"Control”, however, has been described as a "relative concept” (People v Dillard, 96 AD2d 112, 115; People v Douglas, 54 AD2d 515, 516; People v Moore, 17 AD2d 57, 59, supra) and
Control is not limited in the case of a prosecution witness,
Here, defendant adequately met the threshold requirements to entitle him to a missing witness charge by bringing to the court’s attention the failure of the People to call a witness with knowledge about a material issue in the case and who would be expected to testify favorably to the People. The complainant’s own testimony concerning her husband’s sighting the defendant in flight immediately after the crime demonstrated that the husband was knowledgeable about a material issue: the identity of defendant as one of the assailants. Equally certain is the fact that the potential testimony of the complainant’s husband was material. The prosecution’s case rested entirely upon the complainant’s testimony and identification of the defendant. Moreover, complainant’s credibility had been impeached on cross-examination such that corroboration of her testimony was crucial (see, People v Wright, 41 NY2d 172, 176, supra). In these circumstances, it can hardly be said that the husband’s testimony would have been immaterial or irrelevant (see, People v Wright, supra; People v Brown, 34 NY2d 658, 659-660, supra; People v Rodriguez, supra). Nor can we accept the People’s argument, raised for the first time on appeal, that the testimony of the complainant’s husband would have been cumulative. Such a determination must be made by the trial court who is best suited to determine the issue in light of the facts and circumstances of each case. Suffice for our purposes to say that there is no support in the record before us to indicate that the testimony would have been cumulative.
Based on the foregoing, the order of the Appellate Division should be reversed, the judgment of conviction vacated and the matter remitted to Supreme Court, Kings County, for a new trial.
Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur.
Order reversed, etc.
. We have no occasion here to address the circumstances in which a witness may be said to be in a criminal defendant’s control nor whether and the circumstances under which a nontestifying defendant may be subjected to a missing witness charge, determinations which may involve constitutional considerations.
. The People’s reliance on People v Almodovar (62 NY2d 126) in this regard is misplaced. In the first instance, the prosecution there expressly objected to the charge on the ground that the potential testimony of the