                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     104649
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ALBERT LAWING,
                    Appellant.
________________________________


Calendar Date:   May 30, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                             __________


     Marshall Nadan, Kingston, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Shirley
Huang of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered August 26, 2011, upon a verdict
convicting defendant of the crimes of assault in the first
degree, attempted murder in the second degree, criminal use of a
firearm in the first degree and criminal possession of a weapon
in the second degree (two counts).

      Defendant was charged in an indictment with assault in the
first degree, attempted murder in the second degree, criminal use
of a firearm in the first degree, two counts of criminal
possession of a weapon in the second degree, and assault in the
second degree. The charges related to the shooting of the victim
on the evening of July 1, 2010 in the City of Kingston, Ulster
County. The matter proceeded to a jury trial during which
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several witnesses to the incident identified defendant as the
shooter, but the victim did not testify. At the close of the
People's case, defendant requested a missing witness charge with
respect to the victim. County Court rejected the request, and
the jury subsequently convicted defendant of all charges except
assault in the second degree.

      Defendant then moved to set aside the verdict pursuant to
CPL 330.30, alleging, as relevant here, that the People had
engaged in prosecutorial misconduct by misrepresenting to County
Court that they had engaged in diligent efforts to locate the
victim prior to trial. Following a hearing, the court concluded
that diligent efforts had been made and that defendant had not
been denied a fair trial by the People's representations in that
regard. Thereafter, the court sentenced defendant to an
aggregate term of 25 years in prison, with five years of
postrelease supervision, prompting this appeal.

      Defendant primarily argues that County Court abused its
discretion in denying his request for a missing witness charge.
"The three preconditions for the charge are that the witness's
knowledge must be material to an issue in the case, the testimony
must be expected to be noncumulative and favorable to the party
against whom the charge is sought, and the witness must be
available to that party" (People v Onyia, 70 AD3d 1202, 1204
[2010] [citation omitted]; see People v Savinon, 100 NY2d 192,
197 [2003]). A trial court's decision of whether to grant the
charge is reviewable on an abuse of discretion standard (see
People v Savinon, 100 NY2d at 197; People v Onyia, 70 AD3d at
1204).

      The People did not dispute that defendant's request for the
missing witness charge was timely or that he demonstrated prima
facie entitlement to the charge by establishing that the victim
was knowledgeable about a material issue in the case and could be
expected to give noncumulative testimony favorable to the
prosecution (see People v Vasquez, 76 NY2d 722, 723 [1990];
People v Gonzalez, 68 NY2d 424, 427-428 [1986]). Thus, the
burden shifted to the People to refute that showing or
demonstrate that "the testimony would [have been] cumulative to
other evidence, that the witness [was] not 'available,' or that
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the witness [was] not under the [People's] 'control' such that he
would not be expected to testify in [the People's] favor" (People
v Gonzalez, 68 NY2d at 428; see People v Kitching, 78 NY2d 532,
536-537 [1991]; People v Onyia, 70 AD3d at 1204). This case
turns on the availability component of the rule (see People v
Savinon, 100 NY2d at 197-198). I,n that regard, the People
asserted that the victim was not available because his
whereabouts remained unknown despite diligent efforts to locate
him. The People indicated that the victim had been a cooperative
witness prior to trial, appearing in March 2011 when requested to
give police a buccal swab in connection with this case. The
prosecutor personally served a subpoena on the victim at that
time, directing him to appear for trial on April 26, 2011, and
believed that the victim would appear (cf. People v Savinon, 100
NY2d at 199-200). When the prosecutor attempted again to contact
the victim shortly before trial, one telephone number was out-of-
service and, at another number, the prosecutor was informed that
the victim would return the phone call. The victim, however, did
not return the call or appear for trial.

      Meanwhile, the People requested that an investigator and
police detective locate the victim. The investigation revealed
the victim's last known address in Maryland, and an officer with
a Maryland Sheriff's Department visited the residence, found it
in disrepair and left a note for the victim to call the Ulster
County District Attorney's office. The resident of that address
called the prosecutor shortly thereafter to tell him that she had
lived there for approximately 10 months and, although she
received mail and a Federal Express package addressed to the
victim, she did not know him. The People also made unfruitful
inquiries with the Kingston Police Department regarding whether
they had seen the victim in the area. Given the victim's
willingness to cooperate until just prior to trial – including
his appearance to give DNA evidence – the People's personal
service of a subpoena upon him, and the People's efforts to
locate him when he unexpectedly did not appear for trial, County
Court did not abuse its discretion in denying defendant's request
for the missing witness charge (see People v Savinon, 100 NY2d at
198; People v Gonzalez, 68 NY2d at 428; People v Mobley, 77 AD3d
488, 489 [2010], lv denied 15 NY3d 954 [2010]; People v Brooks,
62 AD3d 511, 511 [2009], lv denied 12 NY3d 923 [2009]; People v
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Harris, 19 AD3d 871, 874 [2005], lv denied 5 NY3d 806 [2005];
People v La Motte, 285 AD2d 814, 816 [2001]; People v Munroe, 185
AD2d 530, 532 [1992])

      Turning to the denial of defendant's CPL 330.30 motion to
set aside the verdict, while defendant's arguments are couched in
terms of prosecutorial misconduct, they are based solely upon his
meritless assertion that he was entitled to a missing witness
charge. Accordingly, County Court properly denied the motion,
and the judgment must be affirmed (see CPL 330.30[1]; People v
Simmons, 111 AD3d 975, 977 [2013], lv denied 22 NY3d 1203
[2014]).

     Stein, J.P., McCarthy, Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
