Opinion
December 29, 1992
Appeal from the Supreme Court, New York County (James Leff, J.).
The court properly instructed the jury that defendant's common-law wife was a missing witness (see, People v Gonzalez, 68 N.Y.2d 424, 427), the defense having failed to meet his burden of showing that her testimony would be cumulative to that of his other alibi witnesses (see, People v Fields, 76 N.Y.2d 761, 763). The court's charge fairly tracked the preferable instructions set forth in People v Paylor ( 70 N.Y.2d 146, 149), and the inclusion of "the strongest adverse inference" language, which should be avoided, does not, in the circumstances of this case, in light of the overwhelming evidence, warrant reversal.
Concur — Carro, J.P., Rosenberger, Ellerin, Kupferman and Kassal, JJ.