Opinion
2011-2628 K CR
02-17-2015
The People of the State of New York, Respondent, v. Alissa Krupnik, Appellant.
PRESENT: : , PESCE and SOLOMON, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered July 13, 2011. The judgment convicted defendant, after a nonjury trial, of menacing in the third degree, attempted assault in the third degree, attempted criminal possession of a weapon in the fourth degree, and harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Criminal Court for a new trial.
During the morning of December 2, 2009, defendant and the complainant, who lived in the same apartment building, became engaged in an argument while riding in the elevator. According to the complainant, when the elevator reached the ground floor, defendant pushed the elevator door with great force in the direction of the complainant. As a result, the complainant sustained an injury to her foot. Defendant testified that she had never pushed the elevator door. Instead, the complainant, among other things, verbally harassed her and threw a mug filled with coffee at her, which struck her in the back. The complainant's friend and coworker was present in the elevator during the incident, but was not called by the People as a witness at trial. The Criminal Court denied defendant's request for a missing witness inference.
Defendant's request for a missing witness inference, first made at the close of the People's case, was timely, as it was made as soon as practicable (see People v Gonzalez, 68 NY2d 424, 427-428 [1986]; People v Badine, 301 AD2d 178, 181 [2002]). Moreover, it is undisputed that two of the three preconditions that must be met for a trial court to grant a request for a missing witness charge or inference were met—-the uncalled witness had knowledge of an issue material to the trial, and the witness was available and in the control of the People, the party against whom the inference was sought. The parties dispute whether the third precondition was met—-whether the uncalled witness could be expected to provide noncumulative testimony that was favorable to the People (see People v Edwards, 14 NY3d 733, 735 [2010]; People v Savinon, 100 NY2d 192, 197 [2003]; People v Macana, 84 NY2d 173, 177 [1994]; People v Gonzalez, 68 NY2d at 428).
Both the complainant and defendant testified at the trial. The evidence supporting defendant's conviction was based solely on the testimony of the complainant. The testimony of the complainant and that of defendant were sharply in dispute. Thus, under the particular facts and circumstances of this case, the testimony of an additional person—-the complainant's friend and coworker, who was present during the entire incident—-"might have made the difference" in resolving the dispute ( People v Rodriguez, 38 NY2d 95, 101 [1975]; see People v Onyia, 70 AD3d 1202, 1202 [2010]; People v Marsalis, 22 AD3d 866 [2005]; People v Robertson, 205 AD2d 243 [1994]; People v Chery, 192 Misc 2d 18 [App Term, 9th & 10th Jud Dists 2002]). "What the witness actually saw or could have seen are the precise questions which [she] could have answered if [she] had been called to testify and which the prosecution chose to leave unanswered by not calling the witness" ( People v Kitching, 78 NY2d 532, 538 [1991]).
In view of the foregoing, we find that the Criminal Court improvidently exercised its discretion in denying defendant's request for a missing witness inference (see People v Savinon, 100 NY2d at 197; People v Onyia, 70 AD3d at 1204).
The fact that defendant's counsel was permitted to comment on summation regarding the uncalled eyewitness, under the circumstances of this case, does not render the error harmless (cf. People v Wilkins, 75 AD3d 847, 849 [2010]). Nor can the error be considered harmless, as the evidence of defendant's guilt was not overwhelming, as indicated by the stark differences in the testimony of the complainant and defendant.
Accordingly, the judgment of conviction is reversed and the matter is remitted to the Criminal Court for a new trial.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 17, 2015