People v. Duncan

• Decision Date: 20 February 2001
• Citation: 187 Misc.2d 205,721 N.Y.S.2d 912
• Court: New York Supreme Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>DANTON DUNCAN, Defendant.

187 Misc.2d 205

721 N.Y.S.2d 912

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.DANTON DUNCAN, Defendant.

February 20, 2001.

Carl Becker for defendant.

Charles J. Hynes, District Attorney of Kings County (Kieran P. Holohan of counsel), for plaintiff.

OPINION OF THE COURT

GUY J. MANGANO, JR., J.

The defendant stands convicted after a jury trial of assault in the second degree (Penal Law § 120.05) and menacing in the third degree (Penal Law § 120.15). Prior to summations, the People made a request for a missing witness charge based upon testimony given by the defendant. After the verdict, but before sentencing, defendant moved by notice of motion dated February 7, 2001, pursuant to CPL 330.30, for an order setting aside the verdict. The People have submitted opposition to the motion. For purposes of judicial economy, this court will consider both the People's request to charge and defendant's motion together.

At the trial, the People's eyewitnesses to the incident essentially testified that on February 13, 2000, at approximately 8:00 P.M., in the Greenpoint Hotel,^[1] they heard Richard Todd's screams for help, and upon investigation observed Mr. Todd beaten beyond recognition. The eyewitnesses also testified that they observed defendant leaving the victim's room as they entered. Although not immediately reported by Mr. Todd, after a three-week hospital stay for his injuries, he informed the police on or about March 3, 2000 that Danton Duncan had committed the attack. Defendant turned himself into the police soon thereafter and has been incarcerated since.

The defendant took the stand, and for the first time during the course of this criminal proceeding, testified that he and another individual known only as "Don" went to a local fast food restaurant to eat dinner and that defendant returned to the residence to find the victim beaten in his room. According to defendant, Don lived "downstairs" in the hotel, they only knew each other for a short period of time, and socialized on a few occasions. The defendant's testimony, although apparently disregarded as incredible by the jury, prompted the People to request a missing witness charge concerning Don. For the reasons which follow, this court denied the People's request for the charge.^[2] During closing arguments, however, the prosecutor made reference to the defendant's failure to call the possible alibi witness. The court sustained defense counsel's objection and informed the jury that they were to disregard the comment. Outside the presence of the jury, defense counsel sought a mistrial based upon the prosecutor's references to Don.

The People's Request

Defendant's Alibi Testimony

In this matter, defendant did not provide the People with notice pursuant to CPL 250.20 concerning alibi testimony.^[3] To the contrary, as stated above, the People and the court were not aware of any alibi and were surprised at trial by defendant's version of the alleged facts. In response to defendant's alibi testimony, and the failure to offer any notice of same, the People requested that his testimony be stricken. This court denied the request as "the preclusive provisions contained [in CPL 250.20] * * * apply only to witnesses who a defendant seeks to call to establish an alibi and nowhere makes reference, explicitly or by implication, to a defendant personally" (People v Peace, 256 AD2d 1014, 1015; see also, People v Rosado, 153 Misc 2d 477). Given the clear statutory and fundamental constitutional rights of a criminal defendant to testify, the striking of such testimony for failure to comply with the notice requirements of CPL 250.20 would be improper (see, People v Mason, 263 AD2d 73; People v Peace, supra; CPL 60.15 [2]; US Const 14th Amend; NY Const, art I, § 6; People v Burke, 176 AD2d 1000, 1001, lv denied 79 NY2d 825; People v Harami, 93 AD2d 867). As such, the testimony was received into evidence, and the People immediately sought the missing witness charge.^[4]

Missing Witness Charge

A missing witness charge is properly presented to the jury when the party against whom the charge is given is able to locate and produce the witness and "there was such a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor" (People v Gonzalez, 68 NY2d 424, 429; see also, People v Keen, 94 NY2d 533). The initial burden is on the party seeking the charge, here, the People, to establish that "there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify" (People v Gonzalez, supra, at 427). It is then incumbent upon the challenging party to demonstrate that the witness has no knowledge of the issue, that the issue is immaterial or irrelevant, that the testimony would be cumulative, that the witness is unavailable, or "that the witness is not under the party's `control' such that he would not be expected to testify in his * * * favor" (People v Gonzalez, supra, at 428). It is the control factor which concerns this court.

Although the "`relative concept'" of control is "not susceptible of precise definition," it is clear that the relationship between the witness and the party charged with calling such witness is the dispositive factor (see, People v Gonzalez, supra, at 428-429). While a witness may be potentially available to both parties, a witness is said to be in the control of a party when the witness "is favorable to or under the influence of one party and hostile to the other" (People v Gonzalez, supra, at 429).

In light of the foregoing, the defendant's relationship with Don must be examined. Defendant testified that he did not know Don's last name, and that the two apparently grew up in the same neighborhood although they met only recently at the hotel where they resided. Further, defendant stated that Don was only an acquaintance.

It is settled law that spouses and relatives, with the proper foundation established, are "perforce deemed to be under the defendant's control" (see, People v Rodriguez, 38 NY2d 95, 98, n 1; see also, People v Macana, 84 NY2d 173 [father]; People v Fregosi, 258 AD2d 259, lv denied 93 NY2d 970 [brother]; People v Garcia, 250 AD2d 421, lv denied 92 NY2d 897 [stepbrothers]; People v Glascoe, 220 AD2d 447, lv denied 87 NY2d 901 [wife]), and would thus be expected to testify in defendant's favor (People v Rodriguez, supra). Similarly, friendship between the defendant and the witness could establish the requisite element of control (see, People v Trent, 273 AD2d 50, 51, lv denied 95 NY2d 893 ["closeness of friendship reflected in the record was sufficient under the circumstances to establish control"]; People v Lopez, 165 AD2d 773, lv denied 77 NY2d 879 [close friend]; see also, People v Morales, 126 AD2d 575 [defendant's girlfriend]; People v Paylor, 121 AD2d 891, affd 70 NY2d 146 [close friend]). However, where there exists only a casual friendship or where the witness and the defendant (or in the case of a defense request for the prosecution's missing witness, the complainant) are only mere acquaintances, it cannot be said that the witness is under the control of the calling party (see, People v Banks, 276 AD2d 294 ["casual friendship"]; People v Brunson, 270 AD2d 133, 134, lv denied 95 NY2d 833 ["casual friendship"]; People v Justice, 202 AD2d 362, lv denied 83 NY2d 1004 ["Defendant was not entitled to a missing witness charge as to a witness whose relationship to the complainant was no more than that of a friend"]; see also, People v Duval, 172 AD2d 248, lv denied sub nom. People v Cummins, 77 NY2d 994; People v Josan 92 AD2d 902).

Moreover, defendant has been incarcerated since March 4, 2000, and coupled with the transient nature of the Greenpoint Hotel, there is little likelihood that Don could be considered under the control of defendant or would be available to testify (see, e.g., People v Taranovich, 37 NY2d 442, 446 ["a defendant confined to jail prior to trial is at an obvious and distinct disadvantage in the sense that he can only assist in the preparation of his defense to a limited degree because he is unable to gather evidence or to contact prospective witnesses"]). Thus, based upon the testimony provided by defendant, Don was not under defendant's control and this court is constrained to follow the law despite possible prejudice to the People.

Defendant's Motion to Set Aside the Verdict

According to defense counsel, the verdict should be set aside based upon an allegedly improper reasonable doubt instruction. Further, it is argued that setting aside the verdict is warranted in light of certain comments made by the prosecution during closing arguments, and that the verdict was rendered against the weight of the evidence.

Reasonable Doubt Charge

Defendant maintains that this court erred in its charge to the jury concerning reasonable doubt. Specifically, it is argued that the court improperly denied defendant's request to charge that a reasonable doubt can be found from the "lack of evidence as well as from evidence." Further, that the court should have instructed the jury that a juror need "not have to be able to articulate his or her doubt, as long as it is reasonable," and that the jury could acquit defendant based upon "the slightest doubt, as long as it is reasonable." In fact, regarding the latter contention, defense counsel suggests in the motion that such "slightest doubt" charge is mandatory.

It is a fundamental concept in our society that the People have the burden of establishing beyond a reasonable doubt each and every element of the crimes charged and defendant's commission thereof (see, People v David, 266 AD2d 228, lv denied 94 NY2d 861; People v Cahill, 220 AD2d 608, lv denied 87 NY2d 920; CPL 300.10 [2]). The "standard is an ancient and honored aspect of our criminal...