People v. Mingo

• Decision Date: 12 April 2011
• Parties: The PEOPLE, etc., respondent,v.Vernon MINGO, appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 869
921 N.Y.S.2d 107
2011 N.Y. Slip Op. 03089

The PEOPLE, etc., respondent,
v.
Vernon MINGO, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 12, 2011.

[921 N.Y.S.2d 107]

Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Rachel J. Filasto of counsel), for appellant.Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Lois Cullen Valerio, and Richard Longworth Hecht of counsel), for respondent.DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and ROBERT J. MILLER, JJ.

[83 A.D.3d 869] Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Loehr, J.), rendered March 4, 2009, convicting him of criminal possession

[921 N.Y.S.2d 108]

of a controlled substance in the third degree, escape in the first degree, criminal possession of a controlled substance in the seventh degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant preserved his contention that the trial court erred in failing to give a missing witness instruction with respect to a potential witness for the People. Although the trial court should have given a missing witness instruction, the failure to do so was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Beltry, 235 A.D.2d 546, 653 N.Y.S.2d 362; compare People v. Marsalis, 22 A.D.3d 866, 869, 803 N.Y.S.2d 152).

With respect to the missing witness instruction regarding a witness for the defense, the defendant failed to rebut the People's prima facie showing that they were entitled to that instruction ( see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867; [83 A.D.3d 870] People v. Savinon, 100 N.Y.2d 192, 200–201, 761 N.Y.S.2d 144, 791 N.E.2d 401; People v. Gonzalez, 68 N.Y.2d 424, 427–431, 509 N.Y.S.2d 796, 502 N.E.2d 583). Likewise, since the defendant chose to present affirmative proof in his defense, the fact that he failed to call a material witness under his control was properly brought to the jury's attention and did not impermissibly shift the burden of proof ( see People v. Rivera, 292 A.D.2d 549, 739 N.Y.S.2d 279; People v. Wood, 271 A.D.2d 705, 707 N.Y.S.2d 184; People v. Shaw, 112 A.D.2d 958, 959–960, 492 N.Y.S.2d 470; see generally People v. Savinon, 100 N.Y.2d at 199–200, 761 N.Y.S.2d 144, 791 N.E.2d 401).

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