People v. Spagnuolo, 294

• Citation: 104 N.Y.S.3d 461,173 A.D.3d 1832
• Decision Date: 28 June 2019
• Docket Number: 294,KA 16–01088
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard SPAGNUOLO, Defendant–Appellant.
• Court: New York Supreme Court Appellate Division

173 A.D.3d 1832
104 N.Y.S.3d 461

The PEOPLE of the State of New York, Respondent,
v.
Richard SPAGNUOLO, Defendant–Appellant.

294
KA 16–01088

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

Entered: June 28, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DARIENN M. POWERS OF COUNSEL), FOR DEFENDANT–APPELLANT.

RICHARD SPAGNUOLO, DEFENDANT–APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDER

173 A.D.3d 1832

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[1][b] ; [3] ), defendant contends in his main brief that his attorney's failure to timely request a missing witness charge deprived him of effective assistance of counsel. We reject that contention.

173 A.D.3d 1833

Defense counsel sought the missing witness charge at the conclusion of defendant's testimony. After initially denying the request as untimely, Supreme Court reviewed the merits of the application and adhered to its determination to deny the request. Insofar as he contends that defense counsel was ineffective in failing to seek the missing witness charge in a timely manner, we conclude that defendant "failed to establish the absence of a legitimate explanation for defense counsel's failure to do so" ( People v. Myers [appeal No. 1], 87 A.D.3d 826, 828, 928 N.Y.S.2d 407 [4th Dept. 2011], lv denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ).

We reject defendant's contention in his main brief that a timely request for the charge would have been successful. One of the two witnesses regarding whom defendant sought the missing witness charge was a codefendant, charged as defendant's accomplice, who pleaded guilty before defendant's trial. We have stated

104 N.Y.S.3d 463

that a defendant is not entitled to a missing witness charge based on the People's failure to call his accomplice as a witness because an accomplice's testimony would have been "presumptively suspect ... or subject to impeachment detrimental to the People's case" ( People v. Parton, 26 A.D.3d 868, 869, 808 N.Y.S.2d 531 [4th Dept. 2006], lv denied 7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006] [internal quotation marks omitted]; see People v. Burton, 126 A.D.3d 1324, 1326, 5 N.Y.S.3d 750 [4th Dept. 2015], lv denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ), and we conclude that such is the case here as well. With respect to the other witness, defendant testified that the witness did not overhear the conversation that was at the heart of his request for a missing witness charge, and it is well settled that a "request for a missing witness charge is properly denied where, as here, the party requesting the charge does not establish that the witness could have been expected to testify concerning a material issue" ( People v. Williams, 13 A.D.3d 1173, 1174, 787 N.Y.S.2d 770 [4th Dept. 2004], lv denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 [2005], reconsideration denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ; see People v. Williams, 163 A.D.3d 1422, 1423, 80 N.Y.S.3d 610 [4th Dept. 2018] ). With respect to the remainder of the events for which that potential witness was allegedly present, we conclude, based on the evidence in the record, that his testimony would have been " ‘trivial or cumulative’ " ( People v. Smith, 33 N.Y.3d 454, 104 N.Y.S.3d 572, 128 N.E.3d 649, 2019 N.Y. Slip Op. 04447, *3 [2019] ), and thus denial of defendant's request would have been proper. Therefore, with respect to both witnesses, " ‘[d]efense counsel's failure to [timely] request a missing witness charge did not constitute ineffective assistance of counsel...