| People v Lawing |
| 2014 NY Slip Op 05372 [119 AD3d 1149] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vAlbert Lawing, Appellant. |
Marshall Nadan, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Shirley Huang of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered August 26, 2011, upon a verdict convicting defendant of the crimes ofassault in the first degree, attempted murder in the second degree, criminal use of afirearm in the first degree and criminal possession of a weapon in the second degree (twocounts).
Defendant was charged in an indictment with assault in the first degree, attemptedmurder in the second degree, criminal use of a firearm in the first degree, two counts ofcriminal possession of a weapon in the second degree, and assault in the second degree.The charges related to the shooting of the victim on the evening of July 1, 2010 in theCity of Kingston, Ulster County. The matter proceeded to a jury trial during whichseveral witnesses to the incident identified defendant as the shooter, but the victim didnot testify. At the close of the People's case, defendant requested a missing witnesscharge with respect to the victim. County Court rejected the request, and the jurysubsequently convicted defendant of all charges except assault in the second degree.
Defendant then moved to set aside the verdict pursuant to CPL 330.30, alleging, asrelevant here, that the People had engaged in prosecutorial misconduct bymisrepresenting to County Court that they had engaged in diligent efforts to locate thevictim prior to trial. Following a hearing, the court concluded that diligent efforts hadbeen made and that defendant had not been denied a fair trial by the People'srepresentations in that regard. Thereafter, the [*2]courtsentenced defendant to an aggregate term of 25 years in prison, with five years ofpostrelease supervision, prompting this appeal.
Defendant primarily argues that County Court abused its discretion in denying hisrequest for a missing witness charge. "The three preconditions for the charge are that thewitness's knowledge must be material to an issue in the case, the testimony must beexpected to be noncumulative and favorable to the party against whom the charge issought, and the witness must be available to that party" (People v Onyia, 70 AD3d1202, 1204 [2010] [citation omitted]; see People v Savinon, 100 NY2d 192,197 [2003]). A trial court's decision of whether to grant the charge is reviewable on anabuse of discretion standard (see People v Savinon, 100 NY2d at 197; Peoplev Onyia, 70 AD3d at 1204).
The People did not dispute that defendant's request for the missing witness chargewas timely or that he demonstrated prima facie entitlement to the charge by establishingthat the victim was knowledgeable about a material issue in the case and could beexpected to give noncumulative testimony favorable to the prosecution (see People vVasquez, 76 NY2d 722, 723 [1990]; People v Gonzalez, 68 NY2d 424,427-428 [1986]). Thus, the burden shifted to the People to refute that showing ordemonstrate that "the testimony would [have been] cumulative to other evidence, that thewitness [was] not 'available,' or that the witness [was] not under the [People's] 'control'such that he would not be expected to testify in [the People's] favor" (People vGonzalez, 68 NY2d at 428; see People v Kitching, 78 NY2d 532, 536-537[1991]; People v Onyia, 70 AD3d at 1204). This case turns on the availabilitycomponent of the rule (see People v Savinon, 100 NY2d at 197-198). In thatregard, the People asserted that the victim was not available because his whereaboutsremained unknown despite diligent efforts to locate him. The People indicated that thevictim had been a cooperative witness prior to trial, appearing in March 2011 whenrequested to give police a buccal swab in connection with this case. The prosecutorpersonally served a subpoena on the victim at that time, directing him to appear for trialon April 26, 2011, and believed that the victim would appear (cf. People vSavinon, 100 NY2d at 199-200). When the prosecutor attempted again to contact thevictim shortly before trial, one telephone number was out-of-service and, at anothernumber, the prosecutor was informed that the victim would return the phone call. Thevictim, however, did not return the call or appear for trial.
Meanwhile, the People requested that an investigator and police detective locate thevictim. The investigation revealed the victim's last known address in Maryland, and anofficer with a Maryland Sheriff's Department visited the residence, found it in disrepairand left a note for the victim to call the Ulster County District Attorney's office. Theresident of that address called the prosecutor shortly thereafter to tell him that she hadlived there for approximately 10 months and, although she received mail and a FederalExpress package addressed to the victim, she did not know him. The People also madeunfruitful inquiries with the Kingston Police Department regarding whether they hadseen the victim in the area. Given the victim's willingness to cooperate until just prior totrial—including his appearance to give DNA evidence—the People'spersonal service of a subpoena upon him, and the People's efforts to locate him when heunexpectedly did not appear for trial, County Court did not abuse its discretion indenying defendant's request for the missing witness charge (see People vSavinon, 100 NY2d at 198; People v Gonzalez, 68 NY2d at 428; People v Mobley, 77 AD3d488, 489 [2010], lv denied 15 NY3d 954 [2010]; People v Brooks, 62 AD3d511, 511 [2009], lv denied 12 NY3d 923 [2009]; People v Harris, 19 AD3d871, 874 [2005], lv denied 5 NY3d 806 [2005]; People v La Motte,285 AD2d 814, 816 [2001]; People v Munroe, 185 AD2d 530, 532[1992]).
[*3] Turning to the denial ofdefendant's CPL 330.30 motion to set aside the verdict, while defendant's arguments arecouched in terms of prosecutorial misconduct, they are based solely upon his meritlessassertion that he was entitled to a missing witness charge. Accordingly, County Courtproperly denied the motion, and the judgment must be affirmed (see CPL 330.30[1]; People v Simmons, 111AD3d 975, 977 [2013], lv denied 22 NY3d 1203 [2014]).
Stein, J.P., McCarthy, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.