People v. Nieves

The defendant’s robbery conviction was based solely upon the uncorroborated eyewitness testimony of the complainant, who identified the defendant on the street a year and three months after the crime occurred. The complainant specifically testified at trial that he recognized the defendant as an individual whom he had often seen on a particular street corner as he returned home from work. The defendant, who had held the same job for nearly a decade, testified that he would have been at work at the time the complainant claimed to regularly have seen him on the street corner. Moreover, the defendant and two alibi witnesses testified that on the night of the crime, he was at a party located a substantial distance from the scene of the robbery. Initially, we note that although the People’s evidence was not overwhelming, the complainant’s testimony, if believed, fully established the defendant’s guilt. We must therefore — 604 — reject the defendant’s claim that the evidence adduced at trial was insufficient as a matter of law (see, Jackson v Virginia, 443 US 307, 319; People v Contes, 60 NY2d 620). Nevertheless, a reversal of the defendant’s conviction is warranted based upon the court’s instructions to the jury at the end of the case. First, over the defendant’s objection to the People’s request, the trial court gave a missing witness charge as to the defendant’s wife, who was allegedly with the defendant on the night of the crime and who was available to testify, but was not called as a witness. However, it is well established that a missing witness charge should not be given if the prospective testimony would be merely cumulative (see, People v Wilson, 64 NY2d 634, 635-636; People v Rodriguez, 38 NY2d 95, 98). Here, the testimony of the defendant and his two alibi witnesses was consistent with respect to the defendant’s whereabouts at the time the crime was allegedly committed. Thus, it cannot be said that the testimony of the defendant’s wife would have added anything material to his alibi defense. Accordingly, it was reversible error for the court to have given a missing witness charge with respect to the defendant’s wife. In addition, the court’s supplemental charge to the deadlocked jury was improper. The instruction with respect to the jurors’ duty to reconcile their differing views was apparently direct only at the jurors who were in favor of acquittal (see, People v Diaz, 66 NY2d 744; People v Robinson, 84 AD2d 732). Further, the court repeatedly urged the jurors to attempt to reach a verdict, but only fleetingly alluded to the jurors’ duty not to abandon their consciously held beliefs (see, People v Perfetto, 96 AD2d 517; People v Ali, 65 AD2d 513, affd 47 NY2d 920). A charge "which prod[s] jurors through prejudicial innuendos or coerce[s] them with untoward pressure to reach an agreement” may very well tilt the scales against a defendant at this crucial point in the jurors’ deliberations (People v Pagan, 45 NY2d 725, 726-727). Although no objection was taken to the supplemental charge, the doubts raised by the identification testimony in this case require a reversal of the conviction on this ground in the interest of justice (cf. People v Karamanites, 104 AD2d 899, 901-902). Brown, J. P., Lawrence and Kooper, JJ., concur.