People v Manzi

People v Manzi 2014 NY Slip Op 00280 Decided on January 16, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 16, 2014
Mazzarelli, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.
11487 5892/10

[*1]The People of the State of New York, Respondent,

v

Keith Manzi, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Lawrence T.
Hausman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan
Axelrod of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered April 19, 2012, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender whose prior conviction was a violent felony, to a term of four years, unanimously reversed, on the law, and the matter remanded for a new trial.

The trial court improvidently exercised its discretion when it denied defendant a one-day adjournment to bring in a witness, while also granting the People's request for a missing witness charge concerning that witness.

Defendant, the last witness to testify, made reference to a friend who had been with him at certain relevant junctures. After defendant completed his testimony, the People requested a missing witness charge concerning the friend. Defense counsel argued that there was insufficient basis for the charge, and alternatively requested a one-day adjournment to secure the presence of the witness. The court denied the adjournment, proceeded directly to summations and charge, and delivered a missing witness instruction.

Having granted the People's request for the instruction, the court should have granted defendant a short adjournment. A missing witness issue "must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy" (People v Gonzalez, 68 NY2d 424, 428 [1986]). Here, the moving party raised the issue after defendant's testimony, when the issue became apparent. The court should have then accorded the nonmoving party the opportunity to avoid the missing witness charge by calling the witness. Although defendant was willing to call the witness, the court effectively rendered the witness unavailable, thus negating the availability requirement for a missing witness charge.

The court apparently denied the adjournment on the ground that defendant should have anticipated the missing witness issue. However, an adjournment to the next day would have been reasonable under the circumstances.

We do not find the error to be harmless. The case required the jury to make a credibility determination regarding conflicting testimony given by police witnesses and by defendant, who was unfairly burdened by a missing witness charge. [*2]

In light of the foregoing, we do not reach defendant's remaining contentions, including whether the missing witness charge was proper, except that we find that the verdict was not against the weight of the evidence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 16, 2014

CLERK