The Second Department, reversing Supreme Court, determined defendant’s request for a missing witness jury instruction should have been granted. Defendant was charged with contempt stemming from the violation of a protective order. It was alleged defendant pushed his former girlfriend to the ground in the presence of her date. Her date was subpoenaed by the People and was ready to testify but was not called by the People:
The proponent of a missing witness charge “initially must demonstrate only three things via a prompt request for the charge: (1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case,’ (2) that such witness can be expected to testify favorably to the opposing party,’ and (3) that such party has failed to call’ the witness to testify” … . “The party opposing the charge, in order to defeat the proponent’s initial showing, must either account for the witness’s absence or demonstrate that the charge would not be appropriate” … . “This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not available’, or that the witness is not under the party’s control’ such that he [or she] would not be expected to testify in his or her favor” … . If the party opposing the charge meets its burden to rebut the proponent’s prima facie showing, “the proponent retains the ultimate burden to show that the charge would be appropriate” … .
Here, the defendant met his prima facie burden to show that the complainant’s date was believed to be knowledgeable about a material issue pending in the case and was expected to testify favorably to the People, who had failed to call him to testify. According to the complainant, her date was present during the incident … and was a victim during that incident. The People failed to rebut this prima facie showing … . Contrary to the People’s contention, they failed to establish that the complainant’s date was unavailable as a witness. He appeared in court pursuant to the People’s so-ordered subpoena, and his counsel stated that although he did not wish to be a witness, he was outside the courtroom and was prepared to testify. Further, the People did not establish that the complainant’s date was not under the People’s “control,” such that he would not be expected to testify in their favor, given that he allegedly was on a date with the complainant when the defendant lunged at them, threatened them, and pushed the complainant to the ground. Moreover, the People did not demonstrate that the testimony would have been cumulative. People v Sanchez2020 NY Slip Op 04494, Second Dept 8-12-20