In People v Onyia, 70 AD3d 1202, the defendant and co defendant were charged with robbery, burglary, criminal use of a firearm and possession of a weapon. The co-defendant pled guilty and testified against the defendant. Testimony differed among witnesses as to the number of perpetrators who had a gun and other facts. The defnedant's request for a missing witness charge was denied. The defendant was convicted of several counts but acquitted of possession of a weapon. The court dismissed the use of a firearm count as a noninclusory concurrent count and sentenced the defendant on the remaining counts.
The appellate court held that the missing witness, the accuser's girlfriend was present in the apartment when the defendant bought drugs from the accuser a few minutes before intruders came in brandished a handgun and took money.
The testimony of others and her statement to the police showed she was knowledgeable about the incident. The prosecution alleged her testimony would be cumulative to that of the accuser and the co-defendant but their testimony was contrary on some points and the girlfriend's testimony could have been helpful.
The court accepted without further inquiry the prosecution's assertion that the girl could not be found. The Court records do not indicate what efforts the prosecution took to locate the girlfriend. The Court determined the girlfriend was under the prosecutions control.
The prosecution failed to rebut the prima facia case established by the defense. The error in denying the missing witness charge was not harmless. Judgment was reversed for a new trial.
This case is a good example of the rule of the missing witness charge to the jury. If the case is pending in any criminal court in New York the witness list and who is available is very important to the criminal defense. In any felony or misdemeanor trial the best prepation is to identify each witness and conduct an interview of that witness to prepare the best criminal defense possible.