AD4 order dated June 10, 2011, affirming judgment of conviction. Decision below: 85 A.D.3d 1572, 925 N.Y.S.2d 287. Lippman, Ch.J., granted leave June 6, 2012.

ISSUES PRESENTED: (1) Whether the court erred in sustaining the People’s objection to defense counsel’s summation argument, asking the jury to take a negative inference from the People’s failure to call the police officer who took the complainant’s statement. (2) Molineux. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)

Issue before the Court: Whether the court erred by striking counsel’s missing-witness argument on the grounds that counsel had not sought a missing witness instruction.



Held: Because a party making a missing-witness argument in summation need not request a missing witness instruction, and need not make an offer of proof before making such an argument, and the missing witness argument here was not cumulative it was error for the court to strike counsel’s summation argument. Nonetheless, the error was harmless.

CAL observes: The case presented a “LaFontaine issue,” but the Court chose not to decide it, reaching the merits. The Appellate Division had found that the trial court erred by striking the missing-witness argument because counsel had not asked for a missing-witness instruction. But the Appellate Division affirmed on the alternate grounds that the witness’s testimony would have been cumulative and was not preceded by an offer of proof. Acknowledging that the Appellate Division’s “approach may have been impermissible” under LaFontaine, the Court reached the substantive issues. It’s unclear whether the Court was hedging on its LaFontaine jurisprudence, or merely wanted to reach the underlying issue.