| People v Lopez |
| 2019 NY Slip Op 00043 [168 AD3d 418] |
| January 3, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Andres Lopez, Appellant. |
Christina Swarns, Office of The Appellate Defender, New York (Daniel R. Lambright ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell-Urban of counsel),for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered May 20,2014, convicting defendant, after a jury trial, of forcible touching and sexual abuse in the thirddegree, and sentencing him to an aggregate term of one year, unanimously affirmed.
The court properly denied defendant's request for a missing witness charge as to the victim,who had relocated to another state and failed to reveal her new address or otherwise cooperate inany way with the prosecution. The People established that, notwithstanding her status as a victim,she could not be deemed under the People's control for missing witness purposes, and waslikewise unavailable (see People v Gonzalez, 68 NY2d 424, 427-429 [1986]; People vSmith, 279 AD2d 259 [1st Dept 2001], lv denied 96 NY2d 835 [2001]; see alsoPeople v Gardine, 293 AD2d 287 [1st Dept 2002], lv denied 98 NY2d 651[2002]).
In any event, regardless of whether the court should have granted a missing witness chargeregarding the uncooperative victim, any error was harmless in light of the overwhelmingevidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]), includingpolice observations of defendant's conduct leading up to and during the crime, and an officer'scell phone video. In particular, there was no reasonable possibility that defendant's unmistakablesexual contact with a stranger on the subway was either consensual or inadvertent. Moreover, thecourt permitted defense counsel to comment on the victim's absence. Concur—Sweeny,J.P., Gische, Kahn, Oing, Singh, JJ.