| People v Smith |
| 2010 NY Slip Op 02825 [71 AD3d 1174] |
| March 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PaulSmith, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Josette Simmons McGhee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.),rendered March 3, 2008, convicting him of assault in the third degree and criminal trespass in thethird degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The complainant alleged that on April 21, 2007, she and her boyfriend at the time, RonaldKnight, chased the defendant out of her grandmother's house after discovering him there withoutpermission. In an altercation that initially occurred between Knight and the defendant, thedefendant struck the complainant in the forehead with a wooden object. The People did not callKnight as a witness. The defendant contends that the Supreme Court erred in denying his requestfor a missing witness charge and erred in precluding defense counsel, on summation, fromcommenting on Knight's failure to testify. We disagree.
The party seeking a missing witness charge bears the initial burden of "showing that theuncalled witness could be expected to have knowledge about a material issue and to testifyfavorably to the opposing party" (People v Kitching, 78 NY2d 532, 536-537 [1991]).Once this prima facie showing is made, the opposing party, in order to defeat the request, must"account for the witness'[s] absence or otherwise demonstrate that the charge would not beappropriate" (People v Gonzalez, 68 NY2d 424, 428 [1986]). The request can bedefeated by demonstrating, inter alia, that the uncalled witness is not under the party's controland, thus, would not be expected to testify in that party's favor (see People v Gonzalez,68 NY2d at 429; People v Marsalis, 22 AD3d 866, 868 [2005]).
Although the defendant met his prima facie burden by showing that Knight would havematerial knowledge regarding the defendant's intent, and that Knight could be expected to testifyfavorably to the People (see People v Gonzalez, 68 NY2d at 428), the People counteredby demonstrating that Knight was not under their control. Control is the defining element of the "'favorability' component" (People v Savinon, 100 NY2d 192, 201 [2003]) articulated inGonzalez. A witness may be in the control of one party if the witness, "by nature of his[or her] status or otherwise," [*2]is "favorable to or under theinfluence of one party and hostile to the other" (People v Gonzalez, 68 NY2d at 429).Here, by the time of trial Knight and the complainant were no longer dating each other, Knighthad been arrested and had spent time in jail for assaulting the complainant, and an order ofprotection obtained by the complainant against Knight was in effect. Knight was not in contactwith anyone involved in the case, had indicated his unwillingness to cooperate, and hadsubsequently discontinued his phone service. In sum, the People gave a "good reason for thewitness's absence" (People v Savinon, 100 NY2d at 196), and the defendant offered noevidence to rebut their assertion.
Moreover, since defense counsel's summation comments were in direct conflict with theSupreme Court's rulings, and because the Supreme Court had specifically precluded the Peoplefrom eliciting testimony to explain Knight's absence, there was no good faith reason for defensecounsel to comment on Knight's absence, and reference to Knight's absence, thus, was properlyprecluded (see People v Tankleff, 84 NY2d 992, 994-995 [1994]; People vMcCollough, 16 AD3d 183 [2005]). Dillon, J.P., Santucci, Balkin and Sgroi, JJ., concur.