| People v Turner |
| 2010 NY Slip Op 04067 [73 AD3d 1282] |
| May 13, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jesse R.Turner, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered June 30, 2008, upon a verdict convicting defendant of the crimes of attempted assault inthe first degree, attempted assault in the second degree, criminal use of a firearm in the seconddegree and criminal possession of a weapon in the second degree (two counts).
Following a jury trial, defendant was convicted of attempted assault and weapons chargesbut acquitted of attempted murder stemming from his shooting of Justin Woodard on March 12,2007 in the City of Elmira, Chemung County. At trial, Woodard testified that he was drivingwith his friend Robert Brewer in the front passenger seat, when he stopped his car to speak withLarry Messick, a friend who was in the driver's seat of an SUV facing the opposite direction,parked on the other side of the street. As he began speaking to Messick through their open carwindows, Woodard saw the passenger window behind Messick go down and two hands point arevolver at him and shoot, striking Woodard in the face just below his eye. Messick's front-seatpassenger, Terrance Jackson, whom Woodard also knew, shouted encouragement to the shooterin the rear of the SUV to fire his gun. The back-seat shooter then shouted, "I hit him." WhileWoodard did not see the shooter and was not able to identify him at trial, Messick provided thesame account as Woodard and identified defendant as the shooter and his only back-seatpassenger. Messick testified that he had observed defendant—through his rear viewmirror—point a gun at Woodard and shoot him.[*2]
After the shooting, Woodard fled to the hospital andMessick drove off, but was pulled over shortly by police for running a stop sign. When Messickstopped his SUV, defendant jumped out of the rear passenger door and ran away, but was foundby police hiding in the basement of a nearby residence; defendant was wearing clothingmatching the descriptions given by Messick, as well as the officer who had stopped his SUV andwatched defendant flee, and a citizen witness. The gun used by defendant was never recovered.The officer confirmed that Messick was the driver and Jackson the front-seat passenger, therewere no other passengers, no guns or weapons were found on them or in the SUV, and thatMessick had immediately confirmed that defendant had shot his friend. Brewer andJackson[FN1]were not called by either side to testify at trial. After the close of proof, defense counsel's requestfor a missing witness adverse inference charge (see 1 CJI[NY] 8.54) with regard toBrewer was denied. Sentenced to a term of imprisonment of 12 years plus five years ofpostrelease supervision, defendant now appeals, challenging the denial of the missing witnesscharge and the sentence.
We affirm. We find no error or abuse of discretion in County Court's denial of a missingwitness charge. As a threshold matter, defendant's request was untimely, belatedly coming as itdid after the close of proof, without justification (see People v Britton, 27 AD3d 1014, 1015 [2006], lvdenied 6 NY3d 892 [2006]; Peoplev Slater, 13 AD3d 732, 734 [2004], lv denied 4 NY3d 803 [2005]; People v Coleman, 4 AD3d 677,679 [2004], lvs denied 2 NY3d 797 [2004], 3 NY3d 672 [2004]). "The burden, in thefirst instance, is upon the party seeking the charge to promptly notify the court that thereis an uncalled witness believed to be knowledgeable about a material issue pending in the case,that such witness can be expected to testify favorably to the opposing party and that such partyhas failed to call [the witness] to testify" (People v Gonzalez, 68 NY2d 424, 427 [1986][emphasis added]). The charge is considered "upon a timely request" (id.), meaning "theissue must be raised as soon as practicable so that the court can appropriately exercise itsdiscretion and the parties can tailor their trial strategy to avoid 'substantial possibilities ofsurprise' " (id. at 428 [emphasis added], quoting McCormick, Evidence § 272, at806 [3d ed]). Here defendant's failure to request the charge as to Brewer until after the proofclosed renders it untimely, justifying County Court's denial.
In any event, on the merits, defendant's request for this charge was properly denied.Defendant did not meet his burden of demonstrating one of the preconditions for a missingwitness instruction, that Brewer would "be expected to give noncumulative testimony favorableto the party against whom the charge is sought [i.e., the People]" (People v Savinon, 100NY2d 192, 197 [2003]; see People v Gonzalez, 68 NY2d at 427-429). This control orfavorability component concerns not Brewer's physical availability but, rather, the relationshipbetween Brewer and Woodard (see People v Savinon, 100 NY2d at 197, 200; Peoplev Gonzalez, 68 NY2d at 429). At the time of trial, Brewer was incarcerated in anothercounty, having been charged as a codefendant of Woodard in an unrelated murder and robbery.Under these circumstances, it cannot be said that Brewer was in the control of the People, i.e.,that there is a "a relationship, in legal status or on the facts, as to make it natural to expect theparty [i.e., the People] to have called the witness [Brewer] to testify in [Woodard's] favor"(People v Gonzalez, 68 NY2d at 429; see People v Savinon, 100 NY2d at 200;see People v Hilliard, 49 AD3d910, [*3]913 [2008], lv denied 10 NY3d 959 [2008];cf. People v Onyia, 70 AD3d1202, 1205 [2010]).
The record also supports the conclusion of County Court—"[which] is best suited todetermine the issue in light of the facts and circumstances of each case" (People vGonzalez, 68 NY2d at 430)—that Brewer's testimony would have been cumulative,given the consistent and uncontradicted testimony of Messick, Woodard and the police officerwho stopped the SUV, all of which established that defendant was the shooter and the onlyrear-seat passenger (see People vEdwards, 14 NY3d 733, 735 [2010]; People v Macana, 84 NY2d 173, 180[1994]; People v Gonzalez, 68 NY2d at 430; People v Almodovar, 62 NY2d126, 132-133 [1984]; cf. People v Rodriguez, 38 NY2d 95, 101 [1975]; People vOnyia, 70 AD3d at 1204-1205). Thus, defendant, who knew the identity and location ofBrewer and chose not to subpoena him, was not entitled to a missing witness charge.
Finally, we are not persuaded to exercise our interest of justice jurisdiction to reducedefendant's aggregate 12-year sentence of imprisonment (see CPL 470.15 [6] [b]).Despite defendant's youth (age 19) and lack of prior violent criminal history, defendant shotanother human being in the face at relatively short range, coming perilously close to killing him.County Court aptly concluded that it was only through some miracle (or the victim's quickreflexes) that only minor injuries resulted. Further, while released on bail pending trial,defendant absconded and failed to appear and, when apprehended, he was found to be inpossession of a loaded gun and crack cocaine.[FN2]In view of the foregoing, we do not discern the presence of extraordinary circumstances or findthat imposition of a sentence on the upper end of the permissible sentencing range for the C-levelviolent felonies was an abuse of discretion.
Cardona, P.J., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: After the People rested,Jackson's attorney represented to defense counsel that he would invoke his 5th Amendmentprivilege against self-incrimination if were called to testify.
Footnote 2: Defendant later entered a guiltyplea on those charges.