People v. Baublitz

[3d Dept 2009], lv denied 12 NY3d 926 [2009]). We also reject defendant's argument that he was entitled to a missing witness charge for the confidential informant.

"The missing witness instruction allows a jury to 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 Smith, 33 NY3d 454, 458 [2019] [internal quotation marks and citation omitted]; see People v Khiamdavanh, ___ NY3d ___, ___, 2026 NY Slip Op 03903, *1-2 [2026]). "The burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call [the witness] to testify" (People v Gonzalez, 68 NY2d 424, 427 [1986]). The opposing party may rebut the proponent's prima facie showing "by demonstrating that the witness is not knowledgeable about the issue[;] that the issue is not material or relevant[;] that although the issue is material or relevant, the testimony would be cumulative to other evidence[;] that the witness is not available[;] or that the witness is not under the party's control" (id. at 428 [internal quotation marks omitted]). "If the party opposing the charge meets its burden by rebutting the prima facie showing, the proponent retains the ultimate burden to show that the charge would be appropriate" (People v Smith, 33 NY3d at 459 [citations omitted]). This Court reviews the trial court's decision to decline a missing witness [*3]charge for an abuse of discretion (see e.g. People v Onyia, 70 AD3d 1202, 1204 [3d Dept 2010]).

We hold that County Court did not abuse its discretion by denying defendant's request for a missing witness charge. Assuming defendant satisfied his initial burden on the application, the People convincingly argued that the witness in question â​​ a confidential informant who knew both defendant and Stewart personally and was the first person to implicate them in the crime, leading to the police interview with Stewart â​​ could provide only cumulative testimony. Stewart testified to defendant's role in the attack and the jailhouse informant testified that defendant made an admission. Furthermore, as County Court observed during the charge conference after both parties had rested, the evidence demonstrated that the confidential informant was not at the scene of the crime and that any knowledge they had was based on hearsay. Defendant failed to come forward with additional evidence to satisfy his ultimate burden. Accordingly, we agree with County Court that a missing witness charge was inappropriate (see People v Khiamdavanh, ___ NY3d at ___, 2026 NY Slip Op 03903, *2).

Finally, defendant has not demonstrated that he was denied meaningful representation. Specifically, defendant asserts that his trial counsel erred by failing to elicit testimony from Stewart that would have permitted defendant to call his own witness who would testify to a conversation in which Stewart explained that he had fabricated defendant's involvement. After the People rested, they preemptively asked the court to rule on the admissibility of such testimony, arguing that there was not a proper foundation for the hearsay to be admitted. County Court agreed, concluding that defendant would have had to specifically ask Stewart about the conversations he had with defendant's potential witness before that witness could testify about his conversations with Stewart.

We cannot agree with defendant that there was no strategic explanation for trial counsel's failure to specifically ask Stewart about any conversations he had with defendant's potential witness (see generally People v Benevento, 91 NY2d 708, 712-713 [1998]). In fact, during his cross-examination of Stewart, trial counsel asked whether Stewart had talked to the confidential informant about the crime in question and Stewart unequivocally and repeatedly testified that he had not. Trial counsel then asked whether Stewart had ever discussed the offense with other friends from town, and he responded, "[n]ot really." Trial counsel then moved on from this line of questioning. Given Stewart's indication that he did not discuss the case with associates, at this point trial counsel may have reasonably calculated that any further questioning along these lines would have been fruitless and, perhaps, could have even highlighted the lack of foundation for defendant's potential witness. Instead, trial counsel argued, albeit unsuccessfully, that [*4]no foundation was required. Moreover, even if we could conclude that trial counsel's actions were plainly unreasonable â​​ which we cannot â​​ trial counsel's decision to move on from asking Stewart about his conversation with others regarding this case is not the sort of "clear-cut and completely dispositive" error that, on its own, evinces the ineffective assistance of counsel (People v Turner, 5 NY3d 476, 481 [2005]; see People v Collins, 229 AD3d 846, 848-849 [3d Dept 2024]; People McGowan, 149 AD3d 1161, 1162-1163 [3d Dept 2017], lv denied 29 NY3d 999 [2017]). Additionally, counsel presented cogent opening and closing arguments, pursued a sensible theory of the case â​​ targeting the lack of physical or forensic evidence connecting defendant to the crime scene and the credibility of Stewart and the jailhouse informant â​​ and made appropriate objections throughout trial. We also note that defendant was acquitted of one offense. Thus, viewing trial counsel's representation in its totality, we conclude that defendant was afforded meaningful representation. Defendant's remaining contentions have been considered and rejected.

Garry, P.J., Clark, Aarons and Ryba, JJ., concur.