| People v Onyia |
| 2010 NY Slip Op 01391 [70 AD3d 1202] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Fidelis Onyia,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June 22,2007 in Albany County, upon a verdict convicting defendant of the crimes of robbery in the firstdegree, burglary in the first degree and robbery in the second degree.
As a result of an incident at the victim's apartment where two or three intruders pushed theirway in, brandished a handgun and stole money, defendant and codefendant Shavar Footmanwere charged in an indictment with the crimes of robbery in the first degree, burglary in the firstdegree, robbery in the second degree, criminal use of a firearm in the first degree and criminalpossession of a weapon in the third degree. Footman pleaded guilty and agreed to testify againstdefendant. After a jury trial at which the witnesses' accounts differed as to how manyperpetrators were involved, what each individual did and who held the gun or guns during theincident, the jury convicted defendant of the first four counts but acquitted him of criminalpossession of a weapon in the third degree. Supreme Court dismissed the count of criminal useof a firearm in the first degree as a noninclusory concurrent count, then sentenced defendant onthe remaining three counts. Defendant appeals.
The jury's verdict was not repugnant. "[A] verdict as to a particular count shall be set asideonly when it is inherently inconsistent when viewed in light of the elements of each crime [*2]as charged to the jury" (People v Tucker, 55 NY2d 1, 4[1981]). Courts should not "intrude into the jury's deliberative process by speculating on how thejury perceived and weighed the evidence," but instead review only the charge to the jury todetermine if the verdict was self-contradictory (id. at 7; see People v Wallender, 27 AD3d955, 957 [2006]). Here, as to the relevant elements, Supreme Court charged the jury that toconvict defendant of criminal possession of a weapon in the third degree, it must find that heknowingly possessed a loaded and operable firearm, either physically or constructively. Thecharge for criminal use of a firearm in the first degree required the jury to find that defendantphysically displayed what appeared to be a firearm. The charges for robbery in the first degreeand burglary in the first degree required a finding that defendant or another participant in thecrime displayed what appeared to be a firearm. Thus, a main difference in the charges is that forcriminal possession of a weapon in the third degree, the jury had to find that the gun was genuineand operable, as opposed to merely appearing to be a firearm. In acquitting defendant of criminalpossession of a weapon in the third degree while convicting him of the other four counts, the jurycould have found, "however illogically, that the gun's capability to fire was not proven"(People v Tucker, 55 NY2d at 8). Hence, the verdict was not inherently inconsistent.
Supreme Court erred in denying defendant's request for a missing witness charge. Such acharge "allows a jury to draw an unfavorable inference based on a party's failure to call a witnesswho would normally be expected to support that party's version of events" (People vSavinon, 100 NY2d 192, 196 [2003]). The three preconditions for the charge are that thewitness's knowledge must be material to an issue in the case, the testimony must be expected tobe noncumulative and favorable to the party against whom the charge is sought, and the witnessmust be available to that party (see id. at 197; People v Gonzalez, 68 NY2d 424,427 [1986]). "[T]o defeat the request for a missing witness charge, the opposing party mustdemonstrate that the witness is not knowledgeable about the issue, that the issue is not materialor relevant, that the testimony from the missing witness would be merely cumulative to otherevidence, that the witness is not available or that the witness is not under the party's control suchthat the witness would be expected to testify in the party's favor" (People vKeen, 94 NY2d 533, 539 [2000]). We will only disturb a trial court's determination onwhether to grant a missing witness charge if the court abused its discretion (see People vSavinon, 100 NY2d at 197; Peoplev Demagall, 63 AD3d 34, 39 [2009], lv denied 12 NY3d 924 [2009]).
Here, the missing witness was the victim's girlfriend at the time of the incident. She waspresent in the apartment during the robbery and when defendant purchased marihuana from thevictim a few minutes before the intruders entered the apartment. The testimony of the victim,Footman and defendant, as well as the girlfriend's statement to police, demonstrated that she wasknowledgeable about the incident and her eyewitness testimony could be material and relevant.Contrary to the People's contention that her testimony would be cumulative to that of Footmanand the victim, their testimony was inconsistent on several points such that the girlfriend'stestimony could have been helpful (see People v Brown, 4 AD3d 790, 791 [2004]).Although she was not present at the downstairs door to the apartment where the intruders rushedin, and may have been outside of view of the intruders at some point while she was upstairs,what the girlfriend heard, saw or could have seen is the precise information that could have beenrevealed had she been called as a witness (see People v Kitching, 78 NY2d 532, 538[1991]).
Concerning availability, Supreme Court merely accepted the prosecutor's statement that hecould not locate the witness, without inquiring further (cf. People v Savinon, 100 NY2dat 198). While a witness may be considered unavailable if his or her location is unknown, theparty [*3]opposing the charge must show that it made diligentefforts to locate the witness (see id. at 199 n 5; People v Gonzalez, 68 NY2d at428). The prosecutor did not explain any efforts he undertook to locate the girlfriend, andconfirmed that he personally was the only one who made any efforts; no police or investigatorswere asked to assist in locating her. On this record, the girlfriend's unavailability was notestablished.
Control, which is a separate and distinct consideration from availability, "does not concernphysical availability but rather the relationship between the witness and the parties" based ontheir legal status or on the facts, such that it would be reasonable to expect one party to havecalled the witness to testify in his or her favor (People v Gonzalez, 68 NY2d at 429;see People v Savinon, 100 NY2d at 200). The witness's status as the complainant'sgirlfriend, and herself a victim of the robbery because she was present while gun-wieldingintruders stormed the apartment, constituted a relationship to the People so as to render her undertheir control (see People v Gonzalez, 68 NY2d at 430; People v Brown, 4 AD3dat 791). Although the prosecutor stated that the victim was no longer dating the girlfriend andhad not seen her in months, that representation was not confirmed, and defense counsel contestedit by stating that the witness had moved to a new location near the victim's new residence (cf.People v Keen, 94 NY2d at 540). Defendant made a prima facie case that the witness wasunder the People's control and, without Supreme Court having taken any proof on the issue(see People v Savinon, 100 NY2d at 199), the People failed to rebut that showing.Accordingly, defendant was entitled to a missing witness charge and the court abused itsdiscretion in refusing to so instruct the jury.
Due to the variances and inconsistencies in testimony from all of the witnesses, we cannotsay that this error was harmless (see People v Kitching, 78 NY2d at 539; People vBrown, 4 AD3d at 791). Thus, defendant is entitled to a new trial.
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the Supreme Court for a new trial.