The People Of The State Of N.Y. v. Edwards

• Decision Date: 11 February 2010
• Citation: 925 N.E.2d 867,14 N.Y.3d 733
• Court: New York Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of New York, Respondent,v.Michael EDWARDS, Appellant.

14 N.Y.3d 733

925 N.E.2d 867

The PEOPLE of the State of New York, Respondent,v.Michael EDWARDS, Appellant.

Court of Appeals of New York.

Feb. 11, 2010.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be affirmed. Whether a particular request for counsel “is or is not unequivocal is a mixed question of law and fact,” which, if supported by record evidence, is beyond further review by this Court ( People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ). Such record evidence exists here.

A missing witness charge is warranted for a party's failure to produce a witness, under its control, where his or her testimony would have been material and noncumulative of other testimony or evidence ( see People v. Macana, 84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 639 N.E.2d 13 [1994]; People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ). “[T]he party seeking the missing witness charge must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party” ( Macana, 84 N.Y.2d at 177, 615 N.Y.S.2d 656, 639 N.E.2d 13). Here, defendant argued that the uncalled witness could have either contradicted or corroborated the complaining witness, but did not demonstrate that her testimony would have been noncumulative or expected to be favorable to the People.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed in a memorandum.