People v. Jiminez

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered June 21, 1988, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered. No questions of fact have been raised or considered. We conclude that the court erred in granting the People’s request for a missing witness charge, and, since the error cannot be considered harmless, reverse and grant a new trial. The defendant was charged with murder in connection with the death of Antonio Cruz. According to testimony elicited at his trial, on the night in question, the defendant accompanied an acquaintance, Eddie Rios, to a church dance to pick up Rios’s sister Sylvia. A third acquaintance, Frank Torneo, was a passenger in Rios’s car. Outside the church, the defendant and his companions became involved in an argument with a group of three men, which included the victim. The two groups drove their cars to another location where the argument continued and escalated into a fistfight among several of the men. Cruz was shot and died a few days later in the hospital. Cruz’s two companions testified that the defendant grabbed a gun from Eddie Rios and fired the fatal shots at Cruz. The defendant’s companion, Frank Torneo, testified that the shots were not fired from the front of the car, where the defendant fought with Cruz, but from the rear of the car, near Rios. This testimony was consistent with a detective’s testimony as to the location of the spent shells. The defendant testified that the man fighting with Rios (George Suarez) had a gun and [242] that both he (the defendant) and Cruz ran when the shots were fired. At the close of the defendant’s case, the People requested a missing witness charge with respect to Eddie and Sylvia Rios. The court granted the request over the defense counsel’s objection. We find that this was error. In general, a court may not comment upon a defendant’s failure to come forward with evidence. However, the jury may be instructed on the defendant’s failure to call "an available witness who is under defendant’s control and has information material to the case” (People v Rodriguez, 38 NY2d 95, 98; see, People v Paylor, 70 NY2d 146; People v Wilson, 64 NY2d 634; People v De Jesus, 42 NY2d 519). Although Eddie Rios and his sister were knowledgeable about a material issue in the case, since both of them were present when the shooting occurred, the record fails to reveal that either of them was under the defendant’s control (see, People v Williams, 112 AD2d 177; cf., People v Morales, 126 AD2d 575). Moreover, a missing witness charge is inappropriate where the missing witness could be viewed as an accomplice (see, People v De Jesus, supra). According to the prosecution’s witnesses, Eddie Rios possessed the gun which was used to kill Cruz, and there was testimony suggesting that the shots came from his direction. Particularly telling is the court’s comment, in discussing the People’s request for this charge, that "[i]t is also very obvious to the Court that George Suarez didn’t kill his friend, Antonio Cruz, but that if anybody other than the defendant did the shooting, it must have been Eddie Rios”. Under the circumstances, the court erred in instructing the jury that it could infer that the testimony of Eddie Rios and his sister would not have supported the defendant’s testimony if they had been called as witnesses. The prejudice to the defendant from this charge was compounded by the prosecutor’s comments in summation: "I suggest to you that there are two reasons why Eddie Rios is not here. "And the first is that, because it was Eddie Rios who had the gun in his waistband; who was the man that the Defendant went back to and got the gun from, that he used to shoot and kill Tony Cruz or, second, because Eddie Rios knows what went on that night, and if he came to court, he wouldn’t give this nice little sanitized story that Frank could be asked to give or that the Defendant could give that Eddie would come in and tell what went on that night”. In view of the conflicting evidence, the error cannot be [243] deemed harmless (see, People v Crimmins, 36 NY2d 230; People v Williams, supra). Kooper, Lawrence and O’Brien, JJ., concur.