People v. Josan
| Decision Date | 14 March 1983 |
| Citation | 459 N.Y.S.2d 897,92 A.D.2d 902 |
| Parties | The PEOPLE, etc., Respondent, v. Ion JOSAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Carlucci & Legum, Mineola (Robert J. Carlucci, and Steven G. Legum, Mineola, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Gary S. Fidel and Richard G. Denzer, Kew Gardens, of counsel), for respondent.
Before MOLLEN, P.J., and GULOTTA, BROWN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 3, 1981, convicting him of criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence.
Judgment reversed, on the law, and new trial ordered.
On December 19, 1979, a three-piece computer was stolen from the premises of Teleprompter Communications in Queens County. On April 4, 1980, Detective William McDevitt and his partner executed a warrant authorizing the search of the defendant's Queens apartment. There, they discovered a three-piece computer which, through a comparison of serial numbers, proved to be the one stolen from Teleprompter. The defendant was subsequently arrested and charged with possession of stolen property.
At trial, over defense objection, McDevitt was permitted to testify as to a conversation he had with one Stan Catora at the prison on Rikers Island two days before the recovery of the computer. Catora, who at the time stood charged with grand larceny arising out of the theft of a car, admitted that he, Donald McGowan, and the defendant's step-son John McLoughlin, had stolen the computer and had sold it to the defendant a week later. McDevitt testified that Catora's unsolicited statement had been prompted by his desire for revenge against McGowan who had apparently implicated him in the car theft. According to the detective, inquiry revealed that Catora had subsequently moved to Florida where, prior to the time of trial, he had been arrested for robbery.
Testifying in his own behalf, the defendant admitted that he had purchased the computer, but insisted that he did not know that it had been stolen. He claimed that he wanted to buy a computer to assist him in the management of the property he owned, and had discussed it with McLoughlin, the son of his estranged wife. Subsequently, McLoughlin, who had college training in electronics, told the defendant that he was in the process of repairing a computer and that its owner would sell it for $1,500. Relying on McLoughlin's assurances as to the computer's condition, the defendant agreed to purchase it for that price. When he took possession of the computer, the defendant paid for it with three checks of $500 each. Two of the defendant's employees corroborated major portions of his testimony.
In rebuttal, the People called Donald McGowan, who testified in return for a promise that he would not be prosecuted on two separate burglary charges. McGowan asserted that he, McLoughlin, and Catora had stolen the computer and had sold it to the defendant for $500. McGowan testified further that he had delivered stolen property to the defendant on previous occasions.
After the close of evidence, and over strenuous defense objection, the court granted the prosecutor's request for a so-called missing witness charge. Accordingly, in the course of jury instructions, the court charged:
The jury, after asking for a rereading of the charge regarding "McLoughlin's absence", convicted the defendant as charged. We reverse.
Under the circumstances at bar, it was error to give the jury a missing witness charge....
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