People v. Williams

• Decision Date: 31 December 1998
• Citation: 685 N.Y.S.2d 155
• Parties: 1998 N.Y. Slip Op. 11,962 PEOPLE of the State of New York, Respondent, v. Jeffrey T. WILLIAMS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 155

685 N.Y.S.2d 155

1998 N.Y. Slip Op. 11,962

PEOPLE of the State of New York, Respondent, v. Jeffrey T. WILLIAMS, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 31, 1998.

Edward J. Nowak by Brian Shiffrin, Rochester, for Appellant.

Howard R. Relin by Patrick Fierro, Rochester, for Respondent.

Present: DENMAN, P.J., PINE, PIGOTT, Jr., CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Defendant contends that Supreme Court committed reversible error in denying defendant's request to submit to the jury the issue whether a prosecution witness was an accomplice. We agree. Because different inferences may be drawn from the proof at trial concerning the participation of that witness in the events from which the charges arose, the issue whether she was an accomplice whose testimony required corroboration (see, CPL 60.22[2] ) should have been submitted to the jury (see, People v. Sweet, 78 N.Y.2d 263, 266, 573 N.Y.S.2d 438, 577 N.E.2d 1030; People v. Dorta, 46 N.Y.2d 818, 820, 414 N.Y.S.2d 114, 386 N.E.2d 1081; People v. Collins, 220 A.D.2d 610, 611, 633 N.Y.S.2d 48, lv. denied 87 N.Y.2d 971, 642 N.Y.S.2d 201, 664 N.E.2d 1264; cf., People v. Tucker, 72 N.Y.2d 849, 850, 532 N.Y.S.2d 91, 527 N.E.2d 1227; People v. Morillo, 156 A.D.2d 479, 480, 549 N.Y.S.2d 37).

Reversal is also required based on the court's denial of defendant's request for a missing witness charge with respect to a passenger who was present in the vehicle during the incident and who had cooperated with the investigation by giving a statement inculpating defendant. The uncalled witness was on the People's witness list, and defendant made the request for the charge when the People rested without calling him. Defendant made the request "as soon as practicable" (People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583) and met his burden of demonstrating that the uncalled witness was under the People's control and could be expected to give testimony favorable to the People on a material issue (see, People v. Vasquez, 76 N.Y.2d 722, 723-724, 557 N.Y.S.2d 873, 557 N.E.2d 109; People v. Gonzalez, supra, at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583). The burden then shifted to the People to demonstrate that the charge would be inappropriate (see, People v. Gonzalez, supra, at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583). The speculative assertions of the People that the uncalled witness would not be expected to give favorable testimony and might invoke his Fifth Amendment privilege because he had pending unrelated charges are insufficient to carry that burden (see, People v. Horn, 217 A.D.2d 406, 629 N.Y.S.2d 453, lv. denied 86 N.Y.2d 843, 634 N.Y.S.2d 452, 658 N.E.2d 230).

Defendant's contention that the court's charge was erroneous is not preserved for our review (see, CPL 470.05[2] ), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ). We have...