Opinion
October 6, 1994
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
The trial court properly instructed the jury on defendant's failure to call his wife to testify in his behalf. Though defendant and his wife were apparently separated, on this record, it is clear that she was still under his control as a witness (see, People v. Gonzalez, 68 N.Y.2d 424, 428-429), a conclusion not altered by the fact that she was served with a subpoena. People v. Santiago ( 187 A.D.2d 255, lv withdrawn 81 N.Y.2d 794), upon which defendant relies, is distinguishable since there the witness expressly refused to testify unless subpoenaed (supra, at 257).
In opposing the requested charge, it was defendant's burden to demonstrate that his wife was unavailable (People v. Gonzalez, supra, at 428; People v. Vasquez, 76 N.Y.2d 722, 724), by showing that diligent efforts had been made to locate her (see, People v Davis, 182 A.D.2d 538, 540, lv denied 80 N.Y.2d 902; People v Morris, 140 A.D.2d 551, 552, lv denied 72 N.Y.2d 922), which burden he failed to meet.
Contrary to defendant's contention, the wife's testimony would not have been cumulative or immaterial. Since defendant's sole alibi witness, his mother, was unable to testify as to his whereabouts during the time he would have needed to travel from her apartment in downtown Brooklyn in order to commit the robbery in the complainant's apartment in Washington Heights, the wife, as to whom alibi notice had originally been given (see, People v Castaneda, 176 A.D.2d 455, lv denied 79 N.Y.2d 854), was the only potential witness who may have been with defendant during this critical time (cf., People v. Wynn, 121 A.D.2d 665).
Since the missing witness charge was appropriate, the prosecutor's comment in summation concerning the failure of defendant's wife to testify was not improper (People v. Hagi, 169 A.D.2d 203, 216, lv denied 78 N.Y.2d 1011; People v. Ardale, 173 A.D.2d 307, 308, lv denied 78 N.Y.2d 961).
Concur — Sullivan, J.P., Carro, Rosenberger, Wallach and Rubin, JJ.