| People v Smith |
| 2018 NY Slip Op 04863 [162 AD3d 1686] |
| June 29, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Samuel J. Smith, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedAugust 6, 2014. The judgment convicted defendant, upon a jury verdict, of attempted murder inthe second degree, assault in the first degree and criminal use of a firearm in the first degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, attempted murder in the second degree (Penal Law §§ 110.00,125.25 [1]). On appeal, defendant contends that his trial attorney rendered ineffective assistanceand that Supreme Court erred in denying his request for a missing witness charge. Defendantdoes not, however, challenge the weight of the evidence underlying his convictions. For thereasons that follow, we reject defendant's contentions and affirm the judgment.
We address first defendant's ineffective assistance claim, which we are unanimous inrejecting. Contrary to defendant's contention, defense counsel's failure to more forcefullychallenge the admissibility of evidence concerning a recent murder, in which defendant was notimplicated, was consistent with counsel's misidentification defense on the instant charges.Indeed, defense counsel used that evidence to defendant's advantage at various points during thetrial. Thus, defense counsel's actions constituted a legitimate trial strategy and cannot becharacterized as ineffective (see People v Beaty, 231 AD2d 909, 909 [4th Dept 1996],lv denied 89 NY2d 919 [1996]; see also People v Blair, 121 AD3d 1570, 1570-1571 [4th Dept2014]; see generally People v Benevento, 91 NY2d 708, 712 [1998]). Contrary todefendant's further contention, even if some of the prosecutor's comments during summationwere improper, her conduct was not so egregious that it deprived defendant of a fair trial. Assuch, defense counsel's failure to object to those comments does not constitute ineffectiveassistance (see People v Nicholson,118 AD3d 1423, 1425 [4th Dept 2014], affd 26 NY3d 813 [2016]; Blair, 121AD3d at 1571).
We address next the issue that divides us, namely, the court's denial of defendant's requestfor a missing witness charge. In the First, Second, and Third Departments, it is well establishedthat the proponent of such a charge has the " 'initial burden of proving,' "inter alia, that the missing witness has " 'noncumulative' " testimony to offer onbehalf of the opposing party (People vRoseboro, 127 AD3d 998, 998-999 [2d Dept 2015], lv denied 26 NY3d 934[2015] [emphasis added]; see People v Townsley, 240 AD2d 955, 958 [3d Dept 1997],lv denied 90 NY2d 943 [1997], denied upon reconsideration 90 NY2d 1014[1997]; People v Hill, 165 AD2d 691, 692 [1st Dept 1990], lv denied 76 NY2d987 [1990]). That rule has been explicitly and consistently reiterated by our sister appellatecourts (see e.g. People v Chestnut,149 AD3d 772, 773 [2d Dept 2017], lv denied 29 NY3d 1077 [2017]; People v Kass, 59 AD3d 77, 89[2d Dept 2008]; People v Johnson, 279 AD2d 294, 295 [1st Dept 2001], lv denied96 NY2d 830 [2001]; People v McBride, 272 AD2d 200, 200 [1st Dept 2000], lvdenied 95 NY2d 868 [2000]; People v Kilgore, 254 AD2d 635, 638 [3d Dept 1998],lv denied 93 NY2d 875 [1999]; People v Smith, 240 AD2d 949, 949 [3d Dept1997], lv denied 91 NY2d 880 [1997]).
We have never held otherwise. In other words, we have never held that a movant couldsatisfy its initial burden with respect to a missing witness charge without first making a primafacie showing of noncumulative testimony. To the contrary, although we have not explicitlyarticulated the initial burden as to noncumulative testimony as frequently as the otherDepartments, we did once hold that two criminal defendants "were not entitled to a missingwitness charge because they failed to make the initial showing that the uncalled witness'would naturally be expected to provide noncumulative testimony favorable to the[prosecution]' " (People v Williams, 202 AD2d 1004, 1004 [4th Dept 1994],quoting People v Kitching, 78 NY2d 532, 536 [1991] [emphasis added]). Our later casesfrequently uphold the denial of a missing witness charge where the movant failed to"demonstrate" or "establish" noncumulative testimony (see e.g. People v Cehfus, 140 AD3d 1644, 1644 [4th Dept 2016],lv denied 28 NY3d 969 [2016], lv denied 30 NY3d 1059 [2017]; People v Muscarella, 132 AD3d1288, 1290 [4th Dept 2015], lv denied 26 NY3d 1147 [2016]; People v May, 125 AD3d 1465,1466 [4th Dept 2015], lv denied 25 NY3d 1204 [2015], citing, inter alia,Williams, 202 AD2d at 1004). That later phraseology is entirely consistent with the moredetailed language used in Williams and the cases from the other Departments, and wenow join our sister appellate courts in reiterating what we said in Williams: when seekinga missing witness instruction, the movant has the initial, prima facie burden of showing that thetestimony of the uncalled witness would not be cumulative of the testimony already given. Inother words, it is the movant's burden to establish, prima facie, that the missing witness'stestimony would not be "consistent with the other witnesses" (People v Rivera, 249AD2d 141, 142 [1st Dept 1998], lv denied 92 NY2d 904 [1998]).
The dissent contends that our reiteration of the initial burden with respect to noncumulativetestimony is inconsistent with People v Gonzalez (68 NY2d 424 [1986]). We respectfullydisagree. In Gonzalez, the Court of Appeals wrote that, in order to secure a missingwitness charge, "it must be shown that the uncalled witness is knowledgeable about amaterial issue upon which evidence is already in the case; that the witness would naturally beexpected to provide noncumulative testimony favorable to the party who has not calledhim [or her], and that the witness is available to such party" (id. at 427 [emphasisadded]). In a subsequent passage highlighted by the dissent, the Court of Appeals explained thatthe movant's prima facie showing can be rebutted with evidence that the missing witness'stestimony would be cumulative (see id. at 428). In our view, our holding is entirelyconsistent with Gonzalez's formulation of the missing witness standard: it must beinitially "shown" by the movant that the missing witness can offer "noncumulative testimonyfavorable to the [non-movant]" (id. at 427), but that showing can naturally be rebuttedwith evidence that the missing testimony would, in fact, be cumulative (see id. at 428).Put simply, the fact that an initial showing of "A" can be defeated with proof directly negating"A" does not displace the movant's initial obligation to show "A" in the first instance.
If we are misconstruing Gonzalez now, then so did the other Appellate Divisions inChestnut, Kass, Kilgore, Townsley, Smith, andHill—each of which cited Gonzalez in holding explicitly that the initialburden of proving noncumulative testimony lay with the proponent of the missing witness charge(Chestnut, 149 AD3d at 773; Kass, 59 AD3d at 89; Kilgore, 254 AD2d at638; Smith, 240 AD2d at 949; Townsley, 240 AD2d at 958; Hill, 165AD2d at 692). Indeed, the only explicit authority for the dissent's position is a SecondDepartment case from 1993, which held that the movant "did not have the initial burden ofdemonstrating that [the uncalled witness's] testimony would not have been cumulative"(People v Rodriquez, 191 AD2d 654, 655 [2d Dept 1993]). Rodriquez has neverbeen cited by any subsequent case, and it lacks persuasive value.
Any lingering doubt about the consensus interpretation of Gonzalez was eliminated,in our view, by People v Edwards(14 NY3d 733 [2010]), which cited Gonzalez to uphold the denial of a missingwitness charge because the movant "did not demonstrate that [the missing witness's] testimonywould have been noncumulative" (id. at 735). Unlike the dissent, we readEdwards, and the other missing witness cases from the Court of Appeals, in thestraightforward manner best suited to the fast-moving pace of a criminal trial: there are variousconditions for a missing witness charge that the proponent must initially establish; if and whenthe proponent meets that initial burden on those conditions, the opponent is afforded anopportunity to rebut the proponent's showing before the trial court makes its ultimatedetermination on the missing witness application. Viewed in that light, there is no difference, asthe dissent claims, between the proponent's "initial burden" and "overall burden" in connectionwith a missing witness charge.
Here, defendant—as the proponent of the missing witness charge—failed tomeet his initial burden of proving, prima facie, that the missing witness had noncumulativetestimony to offer on the People's behalf (see Townsley, 240 AD2d at 957-958;People v Pierre, 149 AD2d 740, 741 [2d Dept 1989], lv denied 74 NY2d 745[1989]). Neither defendant nor the dissent claim otherwise; instead, they argue only thatdefendant had no such initial burden and, as discussed above, we reject that view of the law.Further, although our holding does not rest on this point, we note our disagreement with thedissent that defendant met his initial burden of demonstrating that the uncalled witness wouldhave testified favorably to the People.
Finally, the dissent identifies various purported infirmities in the sole eyewitnessidentification in this case and states that, as a result, "we cannot conclude that the uncalledwitness's testimony would have been cumulative." But the alleged deficiencies are not relevant tothe question of cumulativeness, which requires a comparison of the uncalled witness'slikely testimony against the evidence adduced at trial to determine whether the missing testimonywould have " 'contradicted or added' to the testimony of the other witnesses" (Peoplev Williams, 186 AD2d 469, 470 [1st Dept 1992], lv denied 81 NY2d 849 [1993],quoting People v Almodovar, 62 NY2d 126, 133 [1984]). The cumulativeness analysis,put differently, does not contemplate an assessment of the relative strength of the respectiveaccounts of the testifying witness and the missing witness. To that point, we reiterate the FirstDepartment's observation that "[a] party is not entitled to a missing witness charge if thetestimony of the uncalled witness would be merely cumulative . . . , even if theopposing party has called only one witness to testify on a given material issue" (People v Williams, 10 AD3d 213,217 [1st Dept 2004], affd 5 NY3d 732 [2005] [emphasis added]). In short, without aninitial, prima facie showing by defendant that the uncalled witness would have testifiednoncumulatively, i.e., differently than the eyewitness who did take the stand, it simply cannot besaid that the court abused its discretion in denying defendant's request for a missing witnesscharge.
All concur except Carni, J.P., and Lindley, J., who dissent and vote to reverse in accordancewith the following memorandum.
Carni, J.P., and Lindley, J. (dissenting). We respectfully dissent. Although we agree with themajority that defendant was not deprived of his right to effective assistance of counsel, weconclude that Supreme Court erred in denying his request at trial for a missing witness charge.We would therefore reverse the judgment and grant defendant a new trial.
In its seminal case addressing missing witness instructions, the Court of Appeals articulatedthe parties' respective burdens of proof with respect to a request for a missing witness charge inPeople v Gonzalez (68 NY2d 424 [1986]), writing: "The burden, in the first instance, isupon the party seeking the charge to promptly notify the court that there is an uncalled witnessbelieved to be knowledgeable about a material issue pending in the case, that such witness can beexpected to testify favorably to the opposing party and that such party has failed to call him totestify . . . Once the party seeking the charge has established prima facie that anuncalled witness is knowledgeable about a pending material issue and that such witness would beexpected to testify favorably to the opposing party, it becomes incumbent upon the opposingparty, in order to defeat the request to charge, to account for the witness' absence orotherwise demonstrate that the charge would not be appropriate. This burden can be met bydemonstrating that the witness is not knowledgeable about the issue, that the issue is not materialor relevant, that although the issue is material or relevant, the testimony would be cumulativeto other evidence, that the witness is not 'available', or that the witness is not under the party's'control' such that [the witness] would not be expected to testify in his or her favor" (id. at427-428 [emphasis added]).
Despite language to the contrary in Appellate Division decisions cited by the majority, theCourt of Appeals has never altered that burden-shifting framework set forth in Gonzalez(see People v Keen, 94 NY2d 533, 539 [2000]; People v Macana, 84 NY2d 173,177 [1994]; People v Kitching, 78 NY2d 532, 536-537 [1991]; People v Fields,76 NY2d 761, 763 [1990]; People v Erts, 73 NY2d 872, 874 [1988]; see also People v Carr, 59 AD3d945, 946 [4th Dept 2009], affd14 NY3d 808 [2010]).
The majority concludes that the party seeking the charge has the" ' "initial burden of proving," ' inter alia, that the missingwitness has ' "noncumulative" ' testimony to offer on behalf of the opposingparty." We cannot agree. The Court of Appeals has made it clear that a party meets its "primafacie showing of entitlement to the charge" when it proves " '[1] that [the] uncalledwitness[ ] [was] knowledgeable about a material issue pending in the case, [2] that such witness[] [could] be expected to testify favorably to the opposing party and [3] that such party has failedto call [him or her] to testify' " (Fields, 76 NY2d at 763; see Macana, 84NY2d at 177; Kitching, 78 NY2d at 536; Erts, 73 NY2d at 874; Gonzalez,68 NY2d at 427).
Once the party seeking the charge has met his or her "initial burden of making a prima facieshowing of entitlement" (Erts, 73 NY2d at 874), it then becomes incumbent on the partyopposing the request " 'to account for the witness' absence or otherwise demonstrate thatthe charge would not be appropriate' " (Macana, 84 NY2d at 177; seeKeen, 94 NY2d at 539; Kitching, 78 NY2d at 536-537; Fields, 76 NY2d at763; Erts, 73 NY2d at 874; Gonzalez, 68 NY2d at 428). Only then does the issuewhether testimony would be cumulative arise. The Court of Appeals has stated that a partyseeking to defeat a prima facie showing of entitlement to the charge may do so bydemonstrating, inter alia, that " 'the testimony would be cumulative to otherevidence' " (Kitching, 78 NY2d at 537; see Keen, 94 NY2d at 539;Macana, 84 NY2d at 177; Fields, 76 NY2d at 763; Erts, 73 NY2d at 874;Gonzalez, 68 NY2d at 428).
While we agree with the majority that there are myriad Appellate Division cases, includingcases from this Department, stating that the party seeking the charge must make an initialshowing that the uncalled witness would naturally be expected to provide noncumulativetestimony favorable to the opposing party (see e.g. People v Chestnut, 149 AD3d 772, 773 [2d Dept 2017],lv denied 29 NY3d 1077 [2017]; People v Johnson, 279 AD2d 294, 295 [1st Dept2001], lv denied 96 NY2d 830 [2001]; People v Smith, 240 AD2d 949, 949 [3dDept 1997], lv denied 91 NY2d 880 [1997]; People v Williams, 202 AD2d 1004,1004 [4th Dept 1994]), those cases are relying on the statement in Gonzalez, as reiteratedin subsequent cases, discussing the overall showing that must be made before aninstruction is given.
In Gonzalez, the Court of Appeals wrote: "Of course, the mere failure to produce awitness at trial, standing alone, is insufficient to justify the charge. Rather, it must be shown thatthe uncalled witness is knowledgeable about a material issue upon which evidence is already inthe case; that the witness would naturally be expected to provide noncumulative testimonyfavorable to the party who has not called him [or her], and that the witness is available tosuch party" (id. at 427 [emphasis added]). It is not until the paragraph following thatstatement that the Court of Appeals devised the burden-shifting framework by which such ashowing could be made (see id. at 427-428).
To our knowledge, the Court of Appeals has never required the party seeking the missingwitness instruction to make an initial showing that the testimony would not be cumulative withinthe Gonzalez framework. As noted above, the issue whether testimony would becumulative is one means for a party opposing the instruction to defeat a prima facieshowing of entitlement. Thereafter, the party seeking the instruction must rebut ashowing that testimony would be cumulative and thereby meet the overall burden of establishingthat it would not be cumulative.
Indeed, it would make no sense to require the moving party to establish that the missingwitness's testimony is not cumulative in view of the fact that the missing witness, by definition, isnot in the control of the moving party, and the moving party cannot be expected to know thesubstance of the missing witness's testimony, should he or she take the stand. We also note thatthe Court of Appeals held in People v Carr (14 NY3d 808 [2010]) that the defendant'srequest for a missing witness charge was untimely because it was made a week after the Peoplehad submitted their witness list "and after the People had rested their case-in-chief"(id. at 809 [emphasis added]). It would seem difficult, if not impossible at times, for thedefendant, as the moving party, to know whether a missing witness's testimony is cumulativeuntil he or she hears the testimony of all the People's witnesses, i.e., until the People have rested,at which point the request for a missing witness charge would be untimely.
The majority quotes from People vEdwards (14 NY3d 733, 735 [2010]) in determining that the Court of Appeals hascrafted a single, initial burden by which the party seeking the instruction must make an initialprima facie showing that the missing witness's testimony " 'would have beennoncumulative.' " We do not agree. First, the Court of Appeals in Edwards citedto both Macana and Gonzalez, prior Court of Appeals cases discussing theburden-shifting framework to reach the overall burden for entitlement to the instruction. Second,the Court in Edwards did not state that the defendant failed to meet an initial burden ofdemonstrating that the testimony would not be cumulative. Rather, the Court reaffirmed itsposition that " '[t]he party seeking the missing witness charge must sustain an initialburden of showing that the opposing party has failed to call a witness who could be expected tohave knowledge regarding a material issue in the case and to provide testimony favorable to theopposing party' " (id. at 735). In the end, however, the charge was not warrantedbecause the defendant did not meet the overall burden of demonstrating that the testimony wouldbe noncumulative (see id.).
To the extent that our decisions, and the decisions of the other Departments, have conflatedthe overall showing that must be made before the instruction may be given with the initial burdenof the Gonzalez framework, we conclude that those decisions should no longer befollowed.
Here, we agree with defendant that he " 'sustain[ed] [his] initial burden of showingthat the opposing party[, i.e., the People] ha[d] failed to call a witness who could be expected tohave knowledge regarding a material issue in the case and to provide testimony favorable to theopposing party' " (Edwards, 14 NY3d at 735). The uncalled witness was thevictim's then-paramour, he was with the victim when she was shot, and he appeared to have beenthe actual target of the shooter. It also appears from the record that the uncalled witness saw theshooter before any shots were fired because he warned the victim and tried, unsuccessfully, topush her out of the way. Defendant thus established that the uncalled witness was a person" 'who could be expected to have knowledge regarding a material issue in the case and toprovide testimony favorable' " to the People (id.). The burden thus shifted to thePeople to demonstrate that the charge was not appropriate.
In opposing defendant's request, the prosecutor argued that it was untimely—thePeople concede on appeal that the request was timely—and that, in any event, thetestimony of the uncalled witness would be cumulative. The prosecutor did not, however, explainhow or why the testimony would be cumulative, nor did the prosecutor say what she thought thetestimony would be. She did not refer to any statements the uncalled witness may have made tothe police or any testimony he may have given to the grand jury. Instead, the prosecutor simplystated in conclusory fashion that the testimony would be cumulative. The court denieddefendant's request without explanation, which in our view was error.
We note that, aside from the victim and the uncalled witness, there were no other witnessesto the shooting. The victim initially told the police that she could not identify the shooter, and herdescription of the shooter was vague. Although the victim identified defendant at trial as theshooter, she testified that he was a stranger to her and she did not know why he shot her.Considering the questions surrounding the victim's identification of defendant, and in the absenceof any indication of what the testimony of the uncalled witness would have been, we cannotconclude that the uncalled witness's testimony would have been cumulative (see People v Onyia, 70 AD3d1202, 1204-1205 [3d Dept 2010]; see also People v Davydov, 144 AD3d 1170, 1173 [2d Dept 2016],lv denied 29 NY3d 996 [2017]), or that the court's error in refusing to give the charge isharmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).Present—Carni, J.P., Lindley, NeMoyer, Troutman and Winslow, JJ.