New York Criminal Lawyer Blog

Published on: January 20, 2025

What is a missing witness instruction? People v. Gonzalez, 502 N.E.2d 583 (N.Y. 1986)

by Stephen Bilkis

A missing witness instruction is a jury directive given in a trial when a party fails to call a witness who could have provided relevant testimony and is presumed to be within that party’s control. The instruction allows the jury to infer that the absent witness’s testimony might have been unfavorable to the party that failed to produce them. To justify the instruction, the witness must have knowledge of material facts, be available to testify, and be expected to support the party that did not call them.

In People v. Gonzalez, 502 N.E.2d 583 (N.Y. 1986), the New York Court of Appeals reviewed a conviction for robbery and petit larceny, examining whether the trial court’s refusal to give a missing witness charge and its restriction on summation comments about an absent material witness violated fair trial rights. Petit larceny, defined under Penal Law § 155.25, is a Class A misdemeanor involving theft of property valued at $1,000 or less, punishable by up to one year in jail, probation, or fines. This case highlighted critical procedural rights in criminal trials.

Background Facts

Published on: August 31, 2019

New York Appellate Court Discusses Missing Witness Charge

by Stephen Bilkis

People v Smith

In the case People v Gonzales (68 NY2d 424 [1986], the court outlined the conditioned required for a missing witness charge and burden shifting analysis. The court rules that the People failed to meet the criteria for that case.

The incident took place in May of 2013, when the victim was struck in the torso by a bullet. A stranger repeatedly shot at the victim and her boyfriend, JD. During the trial, the victim said that she and her JD were walking down the street in Rochester when JD called out to a car. The victim said the man in the car put on a jacket which was odd because it was a hot day. As they continued to walk, she noticed that the man with the jacket was following them. When the man got close, he pulled a gun and tried to push the victim to the ground. The victim didn’t fall to the ground and looked at the man. He smiled and shot her.

Published on: April 24, 2019

New York Supreme Court Affirms Witness Testimony Was Correctly Admitted as Past Recollection Recorded

by Stephen Bilkis

(People v T, NY Slip Op 02442)

The issue addressed here is whether a part of witness testimony was properly admitted as past recollection recorded, to supplement trial testimony. This court held that the trial court made a proper determination in admitting grand jury testimony, as part of past recollection recorded, which was the proper foundation receipt of evidence. Additionally, because the statement was made out of court and the witness was at the trial, the 6^th Amendment right to confrontation wasn’t violated.

Sargeant CB testified that he was driving Lieutenant C to the police station at 3:30 am when he witnessed the defendant body slam the defendant and drag him between 2 parked cars. Lieutenant C separated the men, and the other Officer B, pursued the man that was running away.

Published on: February 24, 2019

New York Appellate Court Affirms Ruling that Sporting Tickets Carry a Legal Interest Pursuant to PL 170.25

by Stephen Bilkis

(People v W, NY Slip Op 07926)

The court states that pursuant to PL170.10 a sporting event ticket carries with it a legal right, obligation, interest or status. Therefore, the defendant can be prosecuted pursuant to PL 170.25.

The defendant was accused of selling counterfeit tickets and was charged with several counts of criminal possession of a forged instrument under PL170.25. A written instrument is purported to be any kind specified in this code section (Will, credit card, contract, etc.), or any other instrument that terminates the effects of a legal interest.

Published on: January 9, 2019

New York Appellate Court Affirms Prior Ruling Rejecting Claims of an Involuntary Guilty Plea

by Stephen Bilkis

People v. M., NY Slip Op 07924

The court held that the order of the Appellate Court should be confirmed. The defendant claims that his plea of guilty was involuntary. He argued that the indictment must be dismissed because the People didn’t notify the grand jury that the defendant wished to call a particular witness. The defendant argues that the prosecutor’s conduct impaired the integrity of the grand jury proceeding and his motion to dismiss isn’t forfeited by his plea of guilty.

The Appellate Court held that the plea was entered voluntarily. When the plead guilty, he forfeited his argument that his motion to dismiss his indictment should have been granted. The court granted leave to appeal and this court affirms (29 NY3d 1130 [2017].

Published on: November 18, 2018

New York Appellate Court Reverses Prior Decision, Allowing Defendant to Represent Himself in Murder Trial

by Stephen Bilkis

(People v C, NY Slip Op 06849)

The right to self-representation is an important part of being an American (People v. McIntyre 36 NY2d 10, 14 [1974]. This is a right that is guaranteed by the U.S. Constitution and New York State law (Fraretta v CA 422 US 806 [1975], NY Constitution Art. 1). This right, however, isn’t absolute and must be made in a timely manner (Mc Intyre 36 NY2d; Martinez v Ct of Appeal 4^th Appellate District, 528 US 152, 161-162 [2000].

In this case, the defendant tried to invoke his right to proceed pro se. There is a three-prong approach to determine when this right can be invoked. It must be made in a timely manner, there must have been an intelligent waiver of counsel, and the defendant must not have engaged in conduct which would prevent an orderly disposition of the issues. This appeal deals with the first prong of this test.

Published on: October 23, 2018

Appellant Challenges Alleged Violation of 4th Amendment Search and Seizure Law

by Stephen Bilkis

People v O.X.

The court held that the Appellate Order should be affirmed in this case. The question of this case is whether a 4^th amendment consent to search a premises is a question of law or fact (People v. McFarlane 21 NY 3d 1034). The court said that the voluntariness of the consent in this instance is up for dispute. Although the court’s power to review the affirmed findings of fact are limited. The findings of the trial court are supported by the record (People v Morales 42 NY2d 129, 138 [1977]).

Judge Rivera stated that there was a home visit by law enforcement for the purposes of making a warrantless arrest. It is not justified by another exception of the warrant requirement.