People v. Paylor

• Decision Date: 10 July 1986
• Citation: 504 N.Y.S.2d 121,121 A.D.2d 891
• Parties: The PEOPLE of the State of New York, Respondent, v. Reginald PAYLOR, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 121

504 N.Y.S.2d 121

121 A.D.2d 891

The PEOPLE of the State of New York, Respondent, v. Reginald PAYLOR, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

July 10, 1986.

M.A. Corliss, New York City, for respondent.

F.W. Turner, New York City, for defendant-appellant.

Before SANDLER, J.P., and ASCH, KASSAL, ROSENBERGER and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (David Levy, J.), rendered on April 29, 1985, convicting defendant after a non-jury trial of robbery in the first degree and robbery in the second degree, and sentencing him to concurrent indeterminate terms of 2 to 6 years and 1 1/2 to 4 1/2 years imprisonment, respectively, affirmed.

After a non-jury trial, defendant was convicted of robbery in the first degree and robbery in the second degree, and sentenced to concurrent indeterminate terms of from 2 to 6 years and 1 1/2 to 4 1/2 years imprisonment, respectively.

The complaining witness testified that on February 26, 1984, at about 1:00 A.M., while approaching his home at 4769 White Plains Road, in the Bronx, he was the victim of a robbery committed by two individuals who forcibly took from him his wallet, jewelry and a Sony Walkman. He identified the defendant as one of two participants in the robbery. On behalf of the defendant, his mother testified that at a time inconsistent with the defendant's participation in the robbery he and a close friend and overnight guest, Derek Thomas, were with her at defendant's Mt. Vernon home. Derek Thomas was not called as a witness.

In our opinion, the evidence adequately supports the court's determination that the defendant was guilty of the crimes charged. The single important issue is raised by the defendant's claim that reversible error occurred when the court stated in substance that in accordance with the charge approved in People v. Glenn, 68 A.D.2d 626, 417 N.Y.S.2d 934, revd on other grounds, 52 N.Y.2d 880, 437 N.Y.S.2d 298, 418 N.E.2d 1316, he would submit with regard to defendant's failure to call Derek Thomas "the strongest [adverse] inference that can be drawn from the testimony already produced...."

The defendant contends that the evidence did not sufficiently establish his control over Thomas to justify any missing witness inference at all, and that in any event the inference described by the court was reversible error. On the issue of control, the record supports the court's conclusion that a missing witness inference was appropriate, the record demonstrating that the defendant and Thomas were close friends who had been in frequent association with each other during the year that elapsed between the robbery and the trial. A more complicated question is presented in regard to the court's statement that he would "submit the strongest [adverse] inference that can be drawn from the testimony already produced."

In People v. Glenn, supra, a sharply divided court concluded that it was not error to charge the jury that if they found that the defendant had control over a particular witness "the strongest inference may be drawn against the Defendant which opposing evidence in this record permits" (68 A.D.2d at 628, 417 N.Y.S.2d 934). In reaching this conclusion, the majority observed that the courts of this state were not in accord as to the precise nature of the unfavorable inference which may be drawn from the failure of a party to call a witness as to which that party had control.

Thereafter, the same issue was considered by the Fourth Department in People v. Terry, 83 A.D.2d 491, 445 N.Y.S.2d 340, and that court, in agreement with the dissenting opinion in People v. Glenn, supra, concluded that it was error to charge the strongest adverse inference against a defendant in a criminal case, and where a missing witness charge was appropriate, the jury should simply be instructed that it may "consider" the failure of the defendant to call a witness.

Also pertinent to the issue here raised is the recommended instruction by the Committee on Criminal Jury Instructions of the State of New York with regard to the failure of a defendant to call a witness who is under control of the defendant and available to be called by the...