        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

887
KA 11-00970
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRAUICE FUQUA, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered February 25, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of the crime of murder in the second degree (Penal Law §
125.25 [1]), defendant contends, inter alia, that County Court erred
in denying his request for a missing witness charge with respect to an
eyewitness. We agree.

     The parties agree that, when this matter was presented to the
grand jury, the People called the eyewitness, who testified that he
was in the room where the victim was shot and he saw defendant shoot
her. The parties also agree that the witness testified at the grand
jury that defendant shot the victim with a weapon that he brought to
the crime scene. At trial, there was no testimony from any witness
who was present during the shooting. At the close of the People’s
proof, defendant sought a missing witness instruction based on the
prosecutor’s failure to call the eyewitness. The prosecutor indicated
in response that, in a trial preparation session with the prosecutor
shortly before trial, the eyewitness said that he, rather than
defendant, brought the weapon into the room and defendant later used
it to kill the victim. The prosecutor further indicated that the
remainder of the witness’s testimony was unchanged. The prosecutor
stated that she had revoked the cooperation agreement between the
People and the eyewitness, that the eyewitness was subject to
prosecution for this incident, and that the eyewitness was unavailable
because he would invoke his Fifth Amendment rights. We agree with
defendant that the court erred in denying his request for a missing
                                 -2-                           887
                                                         KA 11-00970

witness charge.

     It is well settled that a “jury would have the right to infer
that the evidence of an eye[]witness to a transaction would not be
favorable to a party who voluntarily excluded such witness from
testifying in the case” (People v Hovey, 92 NY 554, 560). Thus, the
opposing party in such a situation is entitled to a missing witness
charge allowing the jury to draw an unfavorable inference when a party
fails to call such a witness, based on “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 Savinon,
100 NY2d 192, 196 [internal quotation marks omitted]; see generally
People v Gonzalez, 68 NY2d 424, 427). “There are three preconditions
to a missing witness instruction: ‘First, the witness’s knowledge must
be material to the trial. Second, the witness must be expected to
give noncumulative testimony favorable to the party against whom the
charge is sought . . . Third, the witness must be available to that
party’ ” (People v Hall, 18 NY3d 122, 131). “Once the party seeking
the charge has established prima facie that an uncalled witness is
knowledgeable about a pending material issue and that such witness
would be expected to testify favorably to the opposing party, it
becomes incumbent upon the opposing party, in order to defeat the
request to charge, to account for the witness’ absence or otherwise
demonstrate that the charge would not be appropriate. This burden can
be met by demonstrating[, among other possibilities,] . . . that the
witness is not ‘available[,]’ or that the witness is not under the
party’s ‘control’ such that he would not be expected to testify in his
or her favor” (Gonzalez, 68 NY2d at 428).

     Here, defendant asked for a missing witness charge at the close
of the People’s proof, and the People do not contend that the request
was untimely (cf. People v Carr, 14 NY3d 808, 809). Furthermore,
“under any version of events, [the eyewitness] was a key witness.
Undisputedly, his testimony would have been material and noncumulative
. . . This case therefore turns on the availability and control
elements of the rule” (Savinon, 100 NY2d at 197). “Having never
raised an argument regarding ‘control’ in the trial court, [the
People] failed to preserve [their] claim that the missing witness
charge was” properly denied on that basis (People v Brown, 99 NY2d
488, 493; see People v Erts, 73 NY2d 872, 874; People v Paulin, 70
NY2d 685, 687). Consequently, the People were required to establish
that the eyewitness was unavailable.

     Contrary to the People’s contention, they failed to establish
that the eyewitness was unavailable. Although the People correctly
note that “a witness who on Fifth Amendment grounds refuses to testify
will be considered ‘unavailable’ although the witness’s presence is
known and apparent” (Savinon, 100 NY2d at 198), the People failed to
establish that the eyewitness was unavailable on that ground. An
uncharged accomplice may be considered unavailable in certain
circumstances (see id. at 198-199), but the statements made by the
prosecutor were not sufficient to establish that the eyewitness was an
accomplice or that he faced any criminal liability for his actions
                                 -3-                           887
                                                         KA 11-00970

(see generally People v Ingram, 71 AD3d 786, 787, lv denied 15 NY3d
751). The People’s further contention that the prosecutor could not
call the eyewitness inasmuch “as his attorney will have him plead the
Fifth Amendment” is not supported by evidence in the record before us.
It is well settled that a trial court “should . . . be reasonably sure
that the witness will in fact invoke the privilege, and where there is
doubt the witness should be brought before the court and asked the
relevant questions” (Savinon, 100 NY2d at 199 n 7). Here, the
prosecutor did not call the eyewitness and there was no communication
from the eyewitness’s attorney; thus, “there was no verification that
[the eyewitness] would plead the Fifth Amendment on the stand” (People
v Brown, 4 AD3d 790, 791; see People v Williams, 256 AD2d 1110, 1111;
cf. People v Sulli, 81 AD3d 1309, 1310, lv denied 17 NY3d 802). The
People’s “bare allegation that the witness in question ‘apparently’
would assert [his] Fifth Amendment privilege, in light of the
attendant circumstances, did not render that witness unavailable”
(People v Neal, 204 AD2d 132, 132, lv denied 84 NY2d 830; see
generally People v Macana, 84 NY2d 173, 179-180).

     Contrary to the People’s further contention, the evidence is not
overwhelming (see generally People v Arafet, 13 NY3d 460, 467; People
v Crimmins, 36 NY2d 230, 241-242), and thus we cannot conclude that
the error is harmless (cf. People v McCullough, 117 AD3d 1415, 1415,
lv denied 23 NY3d 1040; People v Thomas, 96 AD3d 1670, 1672, lv denied
19 NY3d 1002). Therefore, we reverse and grant a new trial. In light
of our resolution of this issue, we do not consider defendant’s
remaining contentions.




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
