Opinion
570042/04.
Decided June 5, 2006.
Defendant appeals from a judgment of the Criminal Court, Bronx County (Arthur Birnbaum, J.), rendered March 12, 2003, after a nonjury trial, convicting him of assault in the third degree, criminal possession of a weapon in the fourth degree, menacing in the third degree and harassment in the second degree, and imposing sentence.
Judgment of conviction (Arthur Birnbaum, J.), rendered March 12, 2003, affirmed.
PRESENT: McKEON, P.J., McCOOE, GANGEL-JACOB, JJ.
Defendant was not deprived of the opportunity to request a missing witness charge nor improperly precluded from commenting in summation about the People's failure to call two witnesses. Although defendant apparently requested a charge conference off-the-record, he did not apprise the court of his intent to request a missing witness charge until three weeks after both sides had rested. At that point, the court, which was sitting as the trier of fact, offered to adjourn the pronouncement of the verdict to allow the defense to submit the charge. The defense declined the court's offer. Under these circumstances the request for the missing witness charge was untimely ( see People v. Patten, 232 AD2d 276, lv denied 89 NY2d 988), and any claim of error waived ( see People v. Aribay, 45 NY2d 45, 52-53, cert denied sub nom Hagn-Diguiseppe v. New York, 439 US 930).
In any event, defendant did not establish that the witnesses had material, noncumulative testimony to offer ( see People v. Gonzalez, 68 NY2d 424, 428 (1896]). Nor did he make the limited showing required to comment in summation upon the People's failure to call the two witnesses ( see People v. McCollough, 16 AD3d 183, lv denied 4 NY3d 855). In the context of this nonjury trial, were we to find any error with regard to either of these rulings, we would find it to be harmless ( see People v. Crimmins, 36 NY2d 230 [1975). To the extent that defendant is raising a constitutional claim, said claim is unpreserved ( see People v. Angelo, 88 NY2d 217, 22 [1996]) and we decline to review it in the interest of justice. Were we to review such claim, we would reject it.
DISSENTING MEMORANDUM
I respectfully dissent.
The Court committed reversible error in not considering the failure of the People to call the mother and aunt of the complaining witness who were eyewitnesses to the incident and resided in the same building complex. The only testifying eyewitnesses were the complainant and three defense witnesses in this nonjury trial where conflicting versions of the alleged assault presented sharp credibility issues.
There are three relevant portions of the trial transcript.
THE PROSECUTOR: Judge, the People will request a charge conference and an opportunity to be heard on summations.
THE COURT: You wish to have summation, absolutely we'll do that tomorrow at 9:30.
THE PROSECUTOR: Tomorrow at 9:30 as well as a charge conference?
THE COURT: Between 9:30 and 10 we'll have that conference.
THE PROSECUTOR: Okay, Judge.
(No conference was held).
* * * * *
DEFENSE COUNSEL . . . And the last thing I would like to point out is that
SUMMATION: the prosecutor had available to him two witnesses that he choose not to call, two witnesses —
THE PROSECUTOR: Objection.
THE COURT: Sustained.
* * * * *
(The Court reserved decision for three weeks to consider the evidence and to render a verdict).
THE COURT: After careful consideration of the evidence —
DEFENSE COUNSEL: Your Honor —
THE COURT: — the testimony —
DEFENSE COUNSEL: I'm sorry to interrupt. May I make a record of one thing that happened last time, before we proceed?
THE COURT: Go ahead.
DEFENSE COUNSEL: On the last time we were together on this case, which was February 20th, just prior to summations, both the Assistant District Attorney, Steinberger and I asked for a charge conference in this case.
There was a conversation that took place at the bench, and I believe it was off the record, so I just wanted to put that conversation on the record.
We asked for a charge conference, there were certain charges I wanted to submit to your Honor, and you indicated that there was a bench conference [sic; trial?], and you felt there was no need for you to charge yourself.
I indicated that there were certain charges I wanted to incorporate in my summation; and when I tried to do that on summation, there was an objection, and it was sustained.
So I just wanted to note, for the record, my objection to not having a charge conference.
THE COURT: I don't understand that aspect of your statement now, that you tried to include something, and there was an objection sustained. Would you refresh my recollection?
DEFENSE COUNSEL: Sure. During my summation, part of my argument was, that certain witnesses were not called by the prosecutor. A missing witness charge is one of the charges that I would have requested at a charge conference, and when I attempted to make that argument, ADA Steinberger objected, and that objection was sustained. (Emphasis added).
THE COURT: Thank you. Was there anything you wish to do now to add now? I'll permit you, if you wish, at this stage.
DEFENSE COUNSEL: No, thank you. I just wanted to make that record.
THE COURT: Is there any charges you wish to submit to me now? I'll permit that too, and I will adjourn the pronouncing of sentence, if you wish. If you think, at this point, you still want to do it, I'll give you that opportunity.
DEFENSE COUNSEL: No, thank you.
THE COURT: I'm sorry?
DEFENSE COUNSEL: No, thank you.
THE COURT: Okay, that's enough. Do you wish to be heard at all, counsel?
THE PROSECUTOR: Judge, I would just like to put, on the record then, that if you're, at this time, inclined to consider a missing witness charge, to put on any other witnesses, would have been duplicative, because they would have testified to the same set of events, in the same order.
Just as the officer testified before you, in the interest of judicial economy, the People only called the arresting officer.
THE COURT: At this point, I have carefully considered the evidence, and thought about it, since our last meeting; and I find that the People have sustained their burden by proving, beyond a reasonable doubt . . .
* * * * *
The objection was improperly sustained when defense counsel attempted to comment during summation on the failure of the People to call the two family members. This right to comment is distinct from the foundation necessary to establish the right to an adverse witness charge ( People v. Williams, 5 NY3d 732, 734, affg 10 AD3d 213, 215-217 [1st Dept 2004]; People v. Cochran, NYLJ, May 15, 2006, at 27, col 1 [App Div, 1st Dept]). Furthermore the defendant would be entitled to an adverse witness charge if this was a jury trial ( People v. Gonzalez, 68 NY2d 424; People v. Robertson, 205 AD2d 243 [1st Dept 1994], lv denied 85 NY2d 913). The two uncalled eyewitnesses were knowledgeable, expected to be favorable to a family member, their absence was unexplained and their testimony would not be cumulative where the prosecution only produced one of a possible three eyewitnesses and the defense produced three. The failure to call them creates the inference that their testimony would not support the People's position.
People v. Savinon ( 100 NY2d 192, 196-197) states the common sense reason underlying the adverse witness instruction:
The rule is best understood by recognizing that the inquiry must be undertaken from the standpoint of the honest litigant. Thus, when a party truthfully presents a version of events, a factfinder would expect that party's friend or ally (if knowledgeable) to confirm it. If a witness that valuable does not appear to support the party's side and if there is no good reason for the witness's absence it is only natural to suppose (or as the law has it, infer) that the witness cannot honestly help the party.
The defense was denied its right to timely submit its view of the applicable law prior to summation. "The provisions governing motion practice and general procedure with respect to a jury trial are, wherever appropriate, applicable to a non-jury trial" (CPL § 320.20). It is not only appropriate but essential that in a nonjury criminal case, where there is no requirement that the Trial Judge make findings of fact and conclusions of law, that the parties have the opportunity to express their interpretation of the controlling law for the trial court's consideration in order to avoid error, to make a record and to permit intelligent appellate review.
Any belated offer three weeks later by the Court to "adjourn the pronouncing of sentence" to give the defendant the opportunity to submit the charge when it was preparing to render a guilty verdict was properly rejected. The defendant submitted a correct statement of the law. There was nothing further to submit. The Court could either accept or reject it or adjourn its rendering of a verdict to consider it. It erroneously rejected it and rendered a guilty verdict without consideration given to the absence of two eyewitnesses. The errors were not harmless ( People v. Robertson, 205 AD2d 243, 247 [1st Dept 1994]).
The cases cited by the Majority regarding waiver are jury cases and are otherwise factually distinguishable.
The judgment should be reversed and the accusatory instrument dismissed.
This constitutes the decision and order of the court.