Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ira Margulis, J.), rendered February 24, 2009.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: GOLIA, J.P., PESCE and RIOS, JJ
The judgment convicted defendant, upon a jury verdict, of criminal possession of stolen property in the fifth degree.
ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed.
Defendant was charged with criminal possession of stolen property in the fifth degree (Penal Law § 165.40). During the trial, defense counsel made a timely request for a missing witness charge as to the failure of the People to produce the second witness to the incident. The Criminal Court granted a one-day adjournment to allow the People an opportunity to locate the witness. At the next court date, the prosecutor asserted that the witness could not be located. He advised the court that he had conducted a Lexis locator search and that he had attempted to call the witness's aunt living in Guyana for information leading to his whereabouts, all to no avail, as he was unable to contact the aunt or locate the witness. The Criminal Court denied defendant's request for a missing witness charge, stating that, while defendant had made a prima facie showing that the testimony of the proposed witness would be material and non-cumulative, the People had established that the witness was unavailable.
To establish his prima facie entitlement to a missing witness charge, a defendant must show that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case and that the witness would naturally be expected to testify favorably to the opposing party (People v Gonzalez, 68 NY2d 424, 427 ; see People v Savinon, 100 NY2d 192 ). However, the People may defeat the request for the charge in several ways, including by demonstrating that the witness is unavailable after diligent efforts have been made to locate the individual (Gonzalez, 68 NY2d at 428; see Savinon, 100 NY2d at 197-200).
In our view, the record establishes that defendant met his initial burden of demonstrating his entitlement to the requested missing witness charge. However, we find that the People failed to demonstrate that they had made diligent efforts to locate the witness, so as to defeat the request for a missing witness charge. We note that, while the People had been informed by the complaining witness's wife that the missing witness had indicated that he intended to move back to Florida from New York, no search was conducted of criminal, motor vehicles or social services records within New York and Florida (see People v Smith, 240 AD2d 949, 950 ). Consequently, the judgment of conviction should be reversed.
Inasmuch as defendant has served his sentence, as a matter of discretion we do not order a new trial but dismiss the accusatory instrument (see People v Flynn, 79 NY2d 879, 882 ; People v Chery, 192 Misc 2d 18, 21 [App Term, 9th & 10th Jud Dists 2002]).
Accordingly, the judgment convicting defendant of possession of stolen property in the fifth degree is reversed and the ...