| People v Manzi |
| 2014 NY Slip Op 00280 [113 AD3d 481] |
| January 16, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Keith Manzi, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered April19, 2012, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in the fourth degree, and sentencing him, as a second felony drug offenderwhose prior conviction was a violent felony, to a term of four years, unanimouslyreversed, on the law, and the matter remanded for a new trial.
The trial court improvidently exercised its discretion when it denied defendant aone-day adjournment to bring in a witness, while also granting the People's request for amissing witness charge concerning that witness.
Defendant, the last witness to testify, made reference to a friend who had been withhim at certain relevant junctures. After defendant completed his testimony, the Peoplerequested a missing witness charge concerning the friend. Defense counsel argued thatthere was insufficient basis for the charge, and alternatively requested a one-dayadjournment to secure the presence of the witness. The court denied the adjournment,proceeded directly to summations and charge, and delivered a missing witnessinstruction.
Having granted the People's request for the instruction, the court should have granteddefendant a short adjournment. A missing witness issue "must be raised as soon aspracticable so that the court can appropriately exercise its discretion and the parties cantailor their trial strategy" (People v Gonzalez, 68 NY2d 424, 428 [1986]). Here,the moving party raised the issue after defendant's testimony, when the issue becameapparent. The court should have then accorded the nonmoving party the opportunity toavoid the missing witness charge by calling the witness. Although defendant was willingto call the witness, the court effectively rendered the witness unavailable, thus negatingthe availability requirement for a missing witness charge.
The court apparently denied the adjournment on the ground that defendant shouldhave anticipated the missing witness issue. However, an adjournment to the next daywould have been reasonable under the circumstances.
We do not find the error to be harmless. The case required the jury to make acredibility determination regarding conflicting testimony given by police witnesses andby defendant, who was unfairly burdened by a missing witness charge.[*2]
In light of the foregoing, we do not reachdefendant's remaining contentions, including whether the missing witness charge wasproper, except that we find that the verdict was not against the weight of the evidence.Concur—Mazzarelli, J.P., Friedman, DeGrasse, Richter and Manzanet-Daniels, JJ.