THE PROPONENT OF A MISSING WITNESS CHARGE MUST FIRST DEMONSTRATE THE TESTIMONY OF THE MISSING WITNESS WOULD NOT MERELY BE CUMULATIVE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the proponent of a missing witness jury instruction must first demonstrate the testimony of the witness would not have been cumulative:

In the [1st] , [2nd], and [3rd] Departments, it is well established that the proponent of such a charge has the ” initial burden of proving,’ ” inter alia, that the missing witness has ” noncumulative’ ” testimony to offer on behalf of the opposing party … . That rule has been explicitly and consistently reiterated by our sister appellate courts … .

We have never held otherwise. * * *

Here, defendant—as the proponent of the missing witness charge—failed to meet his initial burden of proving, prima facie, that the missing witness had noncumulative testimony to offer on the People’s behalf… . Neither defendant nor the dissent claim otherwise; instead, they argue only that defendant had no such initial burden and, as discussed above, we reject that view of the law. Further, although our holding does not rest on this point, we note our disagreement with the dissent that defendant met his initial burden of demonstrating that the uncalled witness would have testified favorably to the People. People v Smith, 2018 NY Slip Op 04863, Fourth Dept 6-29-18

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