People v. Gonzalez

• Decision Date: 25 November 1986
• Parties: , 502 N.E.2d 583 The PEOPLE of the State of New York, Respondent, v. Angel GONZALEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 796

509 N.Y.S.2d 796

68 N.Y.2d 424, 502 N.E.2d 583

The PEOPLE of the State of New York, Respondent, v. Angel GONZALEZ, Appellant.

Court of Appeals of New York.

Nov. 25, 1986.

Irma B. Ascher and Philip L. Weinstein, New York City, for appellant

Elizabeth Holtzman, Dist. Atty. (Darrell Fields, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Defendant was convicted, upon a jury verdict, of robbery in the first degree (Penal Law § 160.15) and petit larceny (Penal Law § 155.25). The Appellate Division affirmed the conviction (111 A.D.2d 870, 490 N.Y.S.2d 788) and the case is before us by leave of the Chief Judge of this court. Defendant argues to us that the trial court erred in refusing, despite his timely request, to instruct the jury that they could draw an unfavorable inference from the failure of the People to call as a witness the complainant's common-law husband and in precluding comment on that failure in summation to the jury. For the reasons that follow, we conclude that there should be a reversal of the conviction and a new trial ordered.

Miriam Jiminez, the complainant, testified at trial that in the early morning hours of May 17, 1981, she was accosted by two men in the lobby of her apartment building and robbed of $800. Jiminez, who was returning from her mother's house in The Bronx, where her mother had given her the $800, stopped in a bar near her residence for a short time. Before leaving the bar, she had taken the $800 from her pocketbook and placed it in her right shoe. Upon arriving at her apartment building, she was accosted by two men. She recognized one of them as the defendant herein, someone she knew by first name, having seen him in the neighborhood on prior occasions. Jiminez testified that while his cohort brandished a gun, defendant held a knife to her neck and ordered her to hand over the money. Although Jiminez refused his demand and did not reveal where any money was secreted, defendant immediately grabbed her right shoe, removed the $800 and fled along with his accomplice. Jiminez then rushed to her second floor apartment and told her common-law husband about the incident. She testified, without objection, that her husband looked out the window and observed the defendant, who was also known to the husband, turning the corner on the run. Complainant's husband was not called to testify during the trial.

During the charge conference following completion of the testimony, defense counsel requested a "missing witness" charge based on the People's failure to call the complainant's husband to testify, contending he was "a material witness and under the People's control". Notwithstanding that the People did not indicate any position on the matter, the court denied the requested charge.

In his summation defense counsel sought to attack the complainant's credibility by highlighting the various witnesses who were not called to testify, although they could have corroborated various aspects of her testimony. Thus, defense counsel observed: "The husband. Whose husband?--the complaining witness('s), husband of seven years. He certainly must have an interest in what happened here." The People's objection to these comments was sustained as was their objection to counsel's further remark that the complaining witness's testimony as to what her husband saw was "hearsay", in that "he didn't make it to you. He didn't make it under oath and I couldn't cross-examine him." The jury was instructed to disregard this latter remark. Defendant's conviction followed.

Under certain circumstances, the failure of a party to produce at trial a witness who presumably has evidence that would "elucidate the transactions," requires a trial court, upon a timely request to instruct the jury that an unfavorable inference may be drawn from the failure of the party to call such witness (People v. Rodriguez, 38 N.Y.2d 95, 98, 378 N.Y.S.2d 665, 341 N.E.2d 231; People v. Moore, 17 A.D.2d 57, 59, 230 N.Y.S.2d 880, cert. denied, 371 U.S. 838, 83 S.Ct. 64, 9 L.Ed.2d 74; see, Richardson, Evidence § 92, at 65-68 McCormick, Evidence § 272, at 804-808 ). As stated by the Supreme Court, "The rule * * * in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable" (Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021). This instruction, commonly referred to as a "missing witness charge", derives from the commonsense notion that "the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause" (2 Wigmore, Evidence § 285, at 192 quoted in Laffin v. Ryan, 4 A.D.2d 21, 25, 162 N.Y.S.2d 730). Of course, the mere failure to produce a witness at trial, standing alone, is insufficient to justify the charge. Rather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party (see, Reehil v. Fraas, 129 App.Div. 563, 566, 114 N.Y.S. 17, revd. on other grounds, 197 N.Y. 64, 90 N.E. 340; McCormick, op. cit.; Richardson, op. cit.; 1 CJI 8.53).

The burden, in the first instance, is upon the party seeking the charge to promptly notify the court 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. In some instances, this information may be available prior to trial; at other times, it may not become apparent until there has been testimony of a witness at trial. In all events, the issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid "substantial possibilities of surprise" (McCormick, op. cit., at 806). Once the party seeking the charge has established prima facie that an uncalled witness is knowledgeable about a pending material issue and that such witness would be expected to testify favorably to the opposing party, it becomes incumbent upon the opposing party, in order to defeat the request to charge, to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not "available", or that the witness is not under the party's "control" such that he would not be expected to testify in his or her favor. In order to allow for effective judicial review, it is imperative that all discussions regarding this matter be clearly set forth on the record so that the respective positions of each party are readily discernible (cf. People v. Ferguson, 67 N.Y.2d 383, 389, 502 N.Y.S.2d 972, 494 N.E.2d 77; see, United States v. Blakemore, 6th Cir., 489 F.2d 193, 196; United States v. Young, D.C.Cir., 463 F.2d 934, 941).

It is to be emphasized that the "availability" of a witness is a separate consideration from that of "control". "Availability" simply refers to the party's ability to produce such witness. Surely, it would be unfair as well as illogical to allow a jury to draw an adverse inference from the failure of the party to call a witness when the party is unable to do so (see, 2 Wigmore, op. cit., at 199). So that, if the party opposing the charge can demon strate, for example, that the witness' whereabouts are unknown and that diligent efforts to locate him have been unsuccessful (People v. Sharp, 107 N.Y. 427, 465, 14 N.E. 319; People v. Griffin, 100 A.D.2d 659, 660, 473 N.Y.S.2d 851; People v. Williams, 34 A.D.2d 1046, 312 N.Y.S.2d 834); or that the witness is ill or incapacitated (Reehil v. Fraas, 129 App.Div. 563, 567, 114 N.Y.S. 17, supra ), the charge should not be given for the inference that the witness has not been called because of his anticipated unfavorable testimony has been negated.

"Control", however, has been described as a "relative concept" (People v. Dillard, 96 A.D.2d 112, 115, 468 N.Y.S.2d 259; People v. Douglas, 54 A.D.2d 515, 516, 386 N.Y.S.2d 477; People v. Moore, 17 A.D.2d 57, 59, 230 N.Y.S.2d 880, supra ) and although not susceptible of precise definition, does not concern physical availability but rather the relationship between the witness and the parties. When the uncalled witness can be said to be equally available to both parties--that is, when it is within the ability of both parties to produce the witness--but the witness is a stranger to both parties and thus cannot be expected to testify favorably to one party or the other, then generally no unfavorable inference may be drawn from the failure of either party to call the witness (People v. Rodriguez, 38 N.Y.2d 95, 98, 378 N.Y.S.2d 665, 341 N.E.2d 231, supra; Hayden v. New York Rys. Co., 233 N.Y. 34, 36-37, 134 N.E. 826; see, Richardson, Evidence op. cit., at 66). On the other hand, if a witness, although theoretically "available" to both sides, is favorable to or under the influence of one party and hostile to the other, the witness is said to be in the "control" of the party to whom he is favorably disposed, and an unfavorable inference may be drawn from the failure to call the witness (People v. Rodriguez, supra; People v. Brown, 34 N.Y.2d 658, 660, 355 N.Y.S.2d 579, 311 N.E.2d 650; Richardson, Evidence...