missing witness instruction in New York

2025A missing witness instruction is appropriate where the witness in question has knowledge material to the trial, would be expected to give noncumulative testimony favorable to the party against whom the charge is sought, and is available to that party ( see People v Smith , 33 NY3d 454 , 458 [2019]; People v Gonzalez , 68 NY2d 424, 427-428 [1986]).

2020The trial court providently exercised its discretion in denying defendant's request for a missing witness instruction regarding the shooting victim. upon its finding that he was not under the People's control for missing witness purposes ( see People v Gonzalez , 68 NY2d 424, 428-430 [1986]).

2023Beginning with his request for a missing witness instruction, the proponent of such must demonstrate that the witness had knowledge that was material to the case, that the expected testimony would be noncumulative and favorable to the party against whom the charge is sought, and that the witness is available to that party ( see People v Savinon , 100 NY2d 192, 197 [2003]; People v Lorenz , 211 AD3d 1109 , 1112 [3d Dept 2022], lv denied 39 NY3d 1112 [2023]; People v Banks , 181 AD3d 973 , 975 [3d Dept 2020], lv denied 35 NY3d 1025 [2020]).

2018The defense also failed to establish that the victim's half-sister was under the People's "control." "[A] genuine inability to locate a witness will foreclose a missing witness instruction" ( People v Savinon , 100 NY2d at 198]), and, here, the prosecutor informed the court that the People had consulted with the victim and his mother as to the sister's whereabouts and had been informed that the sister had been living out of state for six months to a year, that they had obtained a phone number, and that the witness had not responded to their call.

2025Adverse Inference Charge: Missing Witness A missing witness instruction tells a jury that it may "draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events" ( People v Hall , 18 NY3d 122, 131 [2011]).

2025Adverse Inference Charge: Missing Witness A missing witness instruction tells a jury that it may "draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events" ( People v Hall , 18 NY3d 122, 131 [2011]).

2015The court properly denied defendant’s request for a missing witness instruction inasmuch as he failed to demonstrate that the witnesses “ ‘would naturally be expected to provide noncumulative testimony favorable to the [prosecution]’ ” (People v Williams, 202 AD2d 1004, 1004 [1994], quoting People v Kitching, 78 NY2d 532, 536 [1991]; see People v Edwards, 14 NY3d 733, 735 [2010]).

2015The court properly denied defendant’s request for a missing witness instruction inasmuch as he failed to demonstrate that the witnesses “ ‘would naturally be expected to provide noncumulative testimony favorable to the [prosecution]’ ” (People v Williams, 202 AD2d 1004, 1004 [1994], quoting People v Kitching, 78 NY2d 532, 536 [1991]; see People v Edwards, 14 NY3d 733, 735 [2010]).

2025Although a party is not required to call any particular person as a witness, the failure to call a certain person as a witness may be the basis for an inference against the party not calling the witness ( Zeeck v Melina Taxi Co., 177 AD2d 692, 693 [2d Dept 1991]; see also NY Pattern Jury Instr.—Civil 1:75).

2025Although a party is not required to call any particular person as a witness, the failure to call a certain person as a witness may be the basis for an inference against the party not calling the witness ( Zeeck v Melina Taxi Co., 177 AD2d 692, 693 [2d Dept 1991]; see also NY Pattern Jury Instr.—Civil 1:75).

2015The court properly denied defendant’s request for a missing witness instruction inasmuch as he failed to demonstrate that the witnesses “ ‘would naturally be expected to provide noncumulative testimony favorable to the [prosecution]’ ” (People v Williams, 202 AD2d 1004, 1004 [1994], quoting People v Kitching, 78 NY2d 532, 536 [1991]; see People v Edwards, 14 NY3d 733, 735 [2010]).

2015The court properly denied defendant’s request for a missing witness instruction inasmuch as he failed to demonstrate that the witnesses “ ‘would naturally be expected to provide noncumulative testimony favorable to the [prosecution]’ ” (People v Williams, 202 AD2d 1004, 1004 [1994], quoting People v Kitching, 78 NY2d 532, 536 [1991]; see People v Edwards, 14 NY3d 733, 735 [2010]).

2013The missing witness rule is related to the broader principle that “[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; see Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983]; Noce v Kaufman, 2 NY2d 347, 353 [1957]; Dowling v Hastings, 211 NY 199, 202 [1914]; Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

2013The missing witness rule is related to the broader principle that “[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; see Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983]; Noce v Kaufman, 2 NY2d 347, 353 [1957]; Dowling v Hastings, 211 NY 199, 202 [1914]; Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

2019Defendant's remaining ineffective assistance arguments are without merit as "defendant has not demonstrated the absence of strategic or other legitimate explanations for counsel's alleged shortcomings," specifically regarding counsel's failure to request a missing witness instruction ( People v Stanley , 108 AD3d 1129, 1130-1131 [2013] [internal quotation marks and citation omitted], lv denied 22 NY3d 959 [2013]; see People v Benevento , 91 NY2d 708, 712-713 [1998]).

2011Defense counsel’s alternative decision to request a missing witness instruction with respect to that witness was a legitimate trial strategy (see People v McCrone, 12 AD3d 848, 850 [2004], lv denied 4 NY3d 800 [2005]; see generally People v Benevento, 91 NY2d 708, 712-713 [1998]), and the trial court in fact granted that request.

2013In other contexts, most notably in personal injury actions, application of the missing witness rule for physician testimony is based on the recognition that the testimony of two physicians examining the same patient may be noncumulative, and it is the burden of the party failing to call the witness to demonstrate otherwise in order to defeat the adverse inference (see Lauro v City of New York, 67 AD3d 744, 746 [2009]; Hanlon v Campisi, 49 AD3d 603, 604 [2008]; Brooks v Judlau Contr, Inc., 39 AD3d 447 , 449 [2007]).

2013In other contexts, most notably in personal injury actions, application of the missing witness rule for physician testimony is based on the recognition that the testimony of two physicians examining the same patient may be noncumulative, and it is the burden of the party failing to call the witness to demonstrate otherwise in order to defeat the adverse inference (see Lauro v City of New York, 67 AD3d 744, 746 [2009]; Hanlon v Campisi, 49 AD3d 603, 604 [2008]; Brooks v Judlau Contr, Inc., 39 AD3d 447 , 449 [2007]).

2015The court properly denied defendant’s request for a missing witness instruction inasmuch as he failed to demonstrate that the witnesses “ ‘would naturally be expected to provide noncumulative testimony favorable to the [prosecution]’ ” (People v Williams, 202 AD2d 1004, 1004 [1994], quoting People v Kitching, 78 NY2d 532, 536 [1991]; see People v Edwards, 14 NY3d 733, 735 [2010]).

2015The court properly denied defendant’s request for a missing witness instruction inasmuch as he failed to demonstrate that the witnesses “ ‘would naturally be expected to provide noncumulative testimony favorable to the [prosecution]’ ” (People v Williams, 202 AD2d 1004, 1004 [1994], quoting People v Kitching, 78 NY2d 532, 536 [1991]; see People v Edwards, 14 NY3d 733, 735 [2010]).

2015There is no merit to defendant’s contention that the court’s refusal to “sequester” certain “evidence,” i.e., the court’s cell phone, computer and a document that the court was allegedly viewing during the trial, deprived him of appellate review of his motion for a mistrial based upon the court’s alleged misconduct (see generally People v Moreno, 70 NY2d 403, 405-406 [1987]).

2015There is no merit to defendant’s contention that the court’s refusal to “sequester” certain “evidence,” i.e., the court’s cell phone, computer and a document that the court was allegedly viewing during the trial, deprived him of appellate review of his motion for a mistrial based upon the court’s alleged misconduct (see generally People v Moreno, 70 NY2d 403, 405-406 [1987]).

2013This formulation of the broader principle is generally applied in cases where the missing witness is a party (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d at 79-80 ; Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d at 141 ; Matter of Renee R. [Tonya D.], 98 AD3d 1048 [2012]; Matter of Clarissa S.P. [Jaris S], 91 AD3d 785, 786 [2012]; Katz v Gangemi, 60 AD3d 819 [2009]; Brown v City of New York, 50 AD3d 937, 938 [2008]; Matter of Cantina B., 26 AD3d 327, 328 [2006]; Crowder v Wells & Wells Equip., Inc., 11 AD 3d at 361-362 ).

2009Additionally, contrary to the defendants’ contentions, the Supreme Court properly gave a missing witness instruction (see Taveras v Martin, 54 AD3d 667 [2008]; Brown v City of New York, 50 AD3d 937 [2008]). “ [W]hen a doctor who examines an injured plaintiff on the defendant’s behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant.

2022Even assuming, arguendo, that defendant's request was timely ( see People v Carr , 14 NY3d 808, 809 [2010]; People v Butler , 192 AD3d 1701 , 1704 [4th Dept 2021], amended on rearg 196 AD3d 1093 [4th Dept 2021], lv denied 37 NY3d 963 [2021]; People v Fuqua , 122 AD3d 1249 , 1251 [4th Dept 2014]), we conclude that the court properly denied defendant's request because he failed to establish any of the requirements necessary to support the charge ( see generally People v Smith , 33 NY3d 454 , 458-459 [2019]; People v Brown , 139 AD3d 1178, 1179 [3d Dept 2016]).

2021As a preliminary matter, defendant's request for the instruction was untimely inasmuch as it was made after both parties rested ( see People v Muscarella , 132 AD3d 1288 , 1290 [4th Dept 2015], lv denied 26 NY3d 1147 [2016]; People v Williams , 94 AD3d 1555, 1556 [4th Dept 2012]; cf. People v Carr , 14 NY3d 808, 809 [2010]).

2022Defendant failed to establish the absence of a strategic or other legitimate explanation for defense counsel's failure to request a lesser included offense ( see People v Spencer , 183 AD3d 1258, 1259-1260 [4th Dept 2020], lv denied 35 NY3d 1070 [2020]; People v Collins , 167 AD3d 1493 , 1498 [4th Dept 2018], lv denied 32 NY3d 1202 [2019]; see generally [*2]People v Rivera , 71 NY2d 705, 709 [1988]) and failure to request a missing witness instruction with respect to defendant's girlfriend ( see People v Shepard , 171 AD3d 951 , 952 [2d Dept 2019]; People v Myers , 87 AD3d 826, 828 [4th Dept 2

2019We thus perceive a valid strategic basis for counsel's failure to request a missing witness instruction (see People v Peake, 14 AD3d 936, 937-938 [3d Dept 2005]; People v Cruz, 165 AD2d 205, 207-208 [1st Dept 1991], lv denied 77 NY2d 959 [1991]; cf. People v Davydov , 144 AD3d 1170, 1173 [2d Dept 2016], lv denied 29 NY3d 996 [2017]; see generally People v Rivera , 71 NY2d 705, 709 [1988]).

2013The rationale underlying the rule “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (People v Gonzalez, 68 NY2d 424, 427 [1986] [internal quotation marks and emphasis omitted]; see Graves v United States, 150 US 118, 121 [1893]; People v Savinon, 100 NY2d at 196 ; People v Hovey, 92 NY 554, 559-560 [1883]).

2013The rationale underlying the rule “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (People v Gonzalez, 68 NY2d 424, 427 [1986] [internal quotation marks and emphasis omitted]; see Graves v United States, 150 US 118, 121 [1893]; People v Savinon, 100 NY2d at 196 ; People v Hovey, 92 NY 554, 559-560 [1883]).

2013The rationale underlying the rule “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (People v Gonzalez, 68 NY2d 424, 427 [1986] [internal quotation marks and emphasis omitted]; see Graves v United States, 150 US 118, 121 [1893]; People v Savinon, 100 NY2d at 196 ; People v Hovey, 92 NY 554, 559-560 [1883]).

2013The rationale underlying the rule “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (People v Gonzalez, 68 NY2d 424, 427 [1986] [internal quotation marks and emphasis omitted]; see Graves v United States, 150 US 118, 121 [1893]; People v Savinon, 100 NY2d at 196 ; People v Hovey, 92 NY 554, 559-560 [1883]).

2013On occasion, the broad principle allowing “the strongest inference that the opposing evidence permits” against a nontestifying party has been relied upon in cases against a municipal defendant which has failed to call its employees as witnesses (Piquette v City of New York, 4 AD3d 402, 404 [2004] [police officers]; cf. Coliseum Towers Assoc. v County of Nassau, 2 AD3d at 565 [former County employees]).

2013On occasion, the broad principle allowing “the strongest inference that the opposing evidence permits” against a nontestifying party has been relied upon in cases against a municipal defendant which has failed to call its employees as witnesses (Piquette v City of New York, 4 AD3d 402, 404 [2004] [police officers]; cf. Coliseum Towers Assoc. v County of Nassau, 2 AD3d at 565 [former County employees]).

2013This formulation of the broader principle is generally applied in cases where the missing witness is a party (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d at 79-80 ; Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d at 141 ; Matter of Renee R. [Tonya D.], 98 AD3d 1048 [2012]; Matter of Clarissa S.P. [Jaris S], 91 AD3d 785, 786 [2012]; Katz v Gangemi, 60 AD3d 819 [2009]; Brown v City of New York, 50 AD3d 937, 938 [2008]; Matter of Cantina B., 26 AD3d 327, 328 [2006]; Crowder v Wells & Wells Equip., Inc., 11 AD 3d at 361-362 ).

2013This formulation of the broader principle is generally applied in cases where the missing witness is a party (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d at 79-80 ; Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d at 141 ; Matter of Renee R. [Tonya D.], 98 AD3d 1048 [2012]; Matter of Clarissa S.P. [Jaris S], 91 AD3d 785, 786 [2012]; Katz v Gangemi, 60 AD3d 819 [2009]; Brown v City of New York, 50 AD3d 937, 938 [2008]; Matter of Cantina B., 26 AD3d 327, 328 [2006]; Crowder v Wells & Wells Equip., Inc., 11 AD 3d at 361-362 ).

2003Instruction against the Defendant Although a defendant has no burden to come forward with evidence to prove or to disprove anything, once a defendant does so, the failure to call an available witness could be brought to the jury’s attention if such witness’s testimony would be favorable to the defendant and hostile to the prosecution (People v Rodriguez, 38 NY2d 95 [1975]). 3 Courts have held that when a defendant’s relatives have material testimony to offer, but fail to testify on defendant’s behalf, a missing witness instruction is appropriate (People v Keen, 94 NY2d 533, 540 [2000]; People

2003Thus, a witness who on Fifth Amendment grounds refuses to testify will be considered “unavailable” although the witness’s presence is known and apparent (see People v Macana, 84 NY2d at 177-178 ; People v Thomas, 68 NY2d 194, 197 [1986]; People v Rodriguez, 38 NY2d 95, 100 [1975]). 5 An accomplice (whether charged as such or not) who can be expected to invoke a privilege would similarly be unavailable. 6 Under circumstances that obvious, the court can *199 refuse to give the missing witness instruction even though the accomplice is not produced.* * 7 Here, Camacho’s disinclination (communicate

2026In any event, any error regarding the lay opinion or a failure to give a missing witness instruction was plainly harmless ( see People v Crimmins , 36 NY2d 230 [1975]).

2026In any event, any error regarding the lay opinion or a failure to give a missing witness instruction was plainly harmless ( see People v Crimmins , 36 NY2d 230 [1975]).

2003Instruction against the Defendant Although a defendant has no burden to come forward with evidence to prove or to disprove anything, once a defendant does so, the failure to call an available witness could be brought to the jury’s attention if such witness’s testimony would be favorable to the defendant and hostile to the prosecution (People v Rodriguez, 38 NY2d 95 [1975]). 3 Courts have held that when a defendant’s relatives have material testimony to offer, but fail to testify on defendant’s behalf, a missing witness instruction is appropriate (People v Keen, 94 NY2d 533, 540 [2000]; People

2003Instruction against the Defendant Although a defendant has no burden to come forward with evidence to prove or to disprove anything, once a defendant does so, the failure to call an available witness could be brought to the jury’s attention if such witness’s testimony would be favorable to the defendant and hostile to the prosecution (People v Rodriguez, 38 NY2d 95 [1975]). 3 Courts have held that when a defendant’s relatives have material testimony to offer, but fail to testify on defendant’s behalf, a missing witness instruction is appropriate (People v Keen, 94 NY2d 533, 540 [2000]; People

2018In other words, it is the movant's burden to establish, prima facie, that the missing witness's testimony would not be "consistent with the other witnesses" (People v Rivera, 249 AD2d 141, 142 [1st Dept 1998], lv denied 92 NY2d 904 [1998]).

2009Contrary to the defendant’s contentions, the witness’s testimony would have been cumulative (see People v Rivera, 249 AD2d 141 [1998]; People v Tate, 199 AD2d 291 [1993]), and the People demonstrated that they made diligent efforts to find the witness, but could not locate her (see People v Williams, 47 AD3d 854 [2008]; People v Lubrano, 43 AD3d 829 [2007]; People v Rivera, 249 AD2d 141 [1998]; People v Skaar, 225 AD2d 824 [1996]; People v Aguirre, 201 AD2d 485 [1994]).