Judge: Decision Reported Below: 2d Dept: 161 AD3d 1105 (Queens)
Since the defendant was on notice that the People would not be calling those witnesses, the defendant's request for a missing witness charge, made only after both sides had rested, was untimely (see People v Gomez, 223 A.D.3d 843, 844; People v Joseph, 161 A.D.3d 1105, 1105; People v Mancusi, 161 A.D.3d 775, 776; People v Bennett, 175 A.D.2d 251, 252).
Contrary to the defendant’s contention, the Supreme Court properly refused to give a missing witness charge with respect to two uncalled witnesses. Since the defendant was on notice that the People would not be calling those witnesses, the defendant’s request for a missing witness charge, made only after both sides had rested, was untimely (see People v. Gomez, 223 A.D.3d 843, 844, 203 N.Y.S.3d 703; People v. Joseph, 161 A.D.3d 1105, 1105, 73 N.Y.S.3d 911; People v. Mancusi, 161 A.D.3d 775, 776, 76 N.Y.S.3d 574; People v. Bennett, 175 A.D.2d 251, 252, 572 N.Y.S.2d 716).
The party seeking the missing witness charge must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party (see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867). [3, 4] The defendant’s application for a missing witness charge was untimely, as it was not made until after the close of evidence (see People v. Joseph, 161 A.D.3d 1105, 1105, 73 N.Y.S.3d 911). In any event, the defendant failed to show that the uncalled witness would provide noncumulative testimony (see People v. Williams, 195 A.D.3d 1050, 1051, 146 N.Y.S.3d 812), and defense counsel was permitted to comment during summation on the People’s failure to call the witness in question (see People v. Grant, 170 A.D.3d 888, 890, 96 N.Y.S.3d 104).
The defendant's application for a missing witness charge was untimely, as it was not made until after the close of evidence (see People v Joseph, 161 A.D.3d 1105, 1105). In any event, the defendant failed to show that the uncalled witness would provide noncumulative testimony (see People v Williams, 195 A.D.3d 1050, 1051), and defense counsel was permitted to comment during summation on the People's failure to call the witness in question (see People v Grant, 170 A.D.3d 888, 890).
The defendant's contention that the County Court should have given a missing witness charge is unpreserved for appellate review since the specific arguments the defendant makes on appeal were not raised before the court (see People v Spinelli, 79 A.D.3d 1152, 1152; People v Lopez, 19 A.D.3d 510, 511). In any event, the court providently exercised its discretion in denying the application as untimely since the application was not made until both sides had rested at the close of evidence (see People v Williams, 195 A.D.3d 1050; People v Joseph, 161 A.D.3d 1105, 1105). Moreover, while the expected testimony of that witness was not cumulative (see DeVito v Feliciano, 22 N.Y.3d 159, 166), it was not material, as it concerned a matter that was not in contention at trial (see People v Johnson, 139 A.D.3d 967, 974, affd 31 N.Y.3d 942), and defense counsel was permitted to comment during summation on the People's failure to call the witness in question (see People v Williams, 5 N.Y.3d 732, 734; People v Grant, 170 A.D.3d 888, 890).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his application for a missing witness charge. Under the circumstances of this case, the People demonstrated that the witness was unavailable (see People v Gonzalez, 68 N.Y.2d 424, 428; People v Singleton, 186 A.D.3d 1412, 1413; People v Joseph, 161 A.D.3d 1105, 1105; People v Stepney, 42 Misc.3d 139 [A], 2014 NY Slip Op 50170[U] [App Term, 2d Dept, 9th & 10th Jud Dists]). BRATHWAITE NELSON, J.P., MILLER, ZAYAS AND DOWLING, JJ., CONCUR.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his application for a missing witness charge. Under the circumstances of this case, the People demonstrated that the witness was unavailable (seePeople v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; People v. Singleton, 186 A.D.3d 1412, 1413, 128 N.Y.S.3d 868 ; People v. Joseph, 161 A.D.3d 1105, 1105, 73 N.Y.S.3d 911 ; People v. Stepney, 42 Misc.3d 139[A], 2014 N.Y. Slip Op. 50170[U], 2014 WL 562572 [App.
Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his application for a missing witness charge. The defendant's application for a missing witness charge was untimely, as it was not made until the charge conference, after the close of evidence (see People v Joseph, 161 AD3d 1105, 1105; People v Mancusi, 161 AD3d 775, 776; People v Sealy, 35 AD3d 510, 510). In any event, the witness's testimony would have been cumulative (see People v Mancusi, 161 AD3d at 776), and the witness was unavailable to the People (see People v Joseph, 161 AD3d at 1105).
Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his application for a missing witness charge. The defendant's application for a missing witness charge was untimely, as it was not made until the charge conference, after the close of evidence (see People v Joseph, 161 A.D.3d 1105, 1105; People v Mancusi, 161 A.D.3d 775, 776; People v Sealy, 35 A.D.3d 510, 510). In any event, the witness's testimony would have been cumulative (see People v Mancusi, 161 A.D.3d at 776), and the witness was unavailable to the People (see People v Joseph, 161 A.D.3d at 1105).