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New York Appellate Court Discusses Missing Witness Charge


People v Smith

In the case People v Gonzales (68 NY2d 424 [1986], the court outlined the conditioned required for a missing witness charge and burden shifting analysis. The court rules that the People failed to meet the criteria for that case.

The incident took place in May of 2013, when the victim was struck in the torso by a bullet. A stranger repeatedly shot at the victim and her boyfriend, JD. During the trial, the victim said that she and her JD were walking down the street in Rochester when JD called out to a car. The victim said the man in the car put on a jacket which was odd because it was a hot day. As they continued to walk, she noticed that the man with the jacket was following them. When the man got close, he pulled a gun and tried to push the victim to the ground. The victim didn’t fall to the ground and looked at the man. He smiled and shot her.

The victim was later found laying in a driveway bleeding. She had a severely injured liver and lung. She was able to speak and in the hospital was able to identify the man. The defendant was charged with attempted murder in the 2nd degree, 1st degree assault, 1st degree criminal use of a firearm.

During the trial, surveillance film showed a man that fit the defendant’s description in the same area as the shooting.

In a 911 call, a witness had reported seeing a man who fir the description discard a green sweatshirt which had been described by the victim. The victim and a police investigator identified the defendant. The other witnesses were unable to.

JD was originally on the witness list but didn’t testify. The defendant requested a missing witness charge for JD, the defendant asserted that JD was in the People’s control, has seen the shooter and had tried to push the victim out of the way.

The People agreed JD was in their control, but his testimony would have been the same as the victim. The Supreme Court denied the defendant’s application without giving their analysis. The defendant was found guilty and a sentence was imposed.

The Appellate Court affirmed, though two judges dissented. One of the dissenting judges commented that the person seeking a missing witness instruction has the prima facie burden of proving that the testimony anticipated by the uncalled witness would not be cumulative of the testimony already provided (162 AD3d 1986, 1987 [4th Dept. 2018]. The court said that the Supreme Court’s decision wasn’t an abuse of discretion by denying the defendant’s request. The dissenting justices feel that the people erred by failing to prove that JD’s testimony would have been cumulative. As such they granted the defendant leave to appeal (32 NY3d 943 [2018]).

When there is a missing witness, the jury can draw a negative inference based on a party’s failure to call a witness that would normally testify (People v Savinon, 100 NY2d 192, 196 [2003]). It comes from the logical notion that because the evidence isn’t produced it is unfavorable to the party’s case (Gonzales 68 NY2d 427).

A missing witness charge requires 3 conditions: The witness testimony must be material to the case, the testimony must be noncumulative, and the witness list must be available.

In the Gonzales case, an analytical framework was created, and the 3 criteria were established. The party opposing the charge can defeat the challenge by proving the witness was unavailable or that the charge isn’t appropriate under the circumstances. The court has repeatedly used the Gonzales analysis (People v Macara 84 NY2d 173, 177, People v Keen 94 NY2d 533, 539 [2000]. However, in these instances, we never required the proponent of the missing witness charge to negate the cumulative argument to meet the prima facie burden.

The court feels that appellate decisions place the burden on demonstrating the cumulative nature of on the proponent have misapplied the law.

The court stands on the structure created in Gonzales (People v Chestnut 149 AD3d 772 [2d Department 2017], People v McBride 272 AD2d 200).

This court concludes that the defendant met their initial burden by showing the prima facie entitlement to the missing witness charge.

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