Issue before the Court: Was the defense entitled to a missing witness charge where the defense argued that the witness was under the People’s control and had material testimony to offer on the issue of identification?  The Appellate Division had held that supreme court’s denial of the charge was not an abuse of discretion because the defendant failed to meet his “initial, prima facie burden of showing that the testimony of the uncalled witness would not be cumulative of the testimony already given.” 

 

Held: In a rare unanimous reversal in an opinion by Judge Feinman, the Court held that the Appellate Division (4th Department) screwed up the respective burdens.  Reaffirming its seminal decision in People v. Gonzalez, 68 N.Y.2d 424 (1986), the Court stated that the party opposing the charge has the burden of “demonstrating that the charge would not be appropriate,” by, for example, “demonstrating that the testimony would be cumulative to other evidence.”  The Court pointed out that placing the burden on the proponent of the charge made no sense since that party typically lacks the information necessary to know what the uncalled witness would say while the party opposing the charge is in a superior position to demonstrate cumulativeness. Under the circumstances of this otherwise one-witness ID case, the error was not harmless. 

 

CAL Observes: A reminder to go back to original sources and not be deterred by lines of bad Appellate Division law.  The Court of Appeals cited (and rejected) the numerous Appellate Division decisions, including from the First Department, that had placed the initial cumulativeness burden on the proponent of the missing witness charge. However, it is somewhat disheartening to note what it takes to win a unanimous reversal: Court of Appeals law directly on point, in the defendant’s favor.  Short of overruling Gonzalez, it’s difficult to imagine how the case could have come out otherwise.  Note that leave had been granted by the Appellate Division dissenter; the Court of Appeals had previously denied leave in the prior Appellate Division cases where, it stands to reason, appellate practitioners had challenged the misallocation of burdens.