Opinion
December 27, 1993
Appeal from the Supreme Court, Kings County (Goldsmith, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
We find that it was error for the trial court to grant the prosecution's request for a missing witness charge. The trial record shows that after interviewing the witness in question prior to the close of evidence, the prosecution admitted that the witness had no recollecton of the incident and would be unable to support either the prosecution or the defense. It is clear, then, that the prosecution failed to sustain its burden in the first instance of showing that the witness had knowledge of a material issue and that the witness could be expected to testify favorably to the defendant (see, People v Kitching, 78 N.Y.2d 532, 536; People v Gonzalez, 68 N.Y.2d 424, 427-428; People v Dancy, 176 A.D.2d 597; People v Rivera, 174 A.D.2d 581; People v Torres, 146 A.D.2d 658). Moreover, the witness was in court and was equally available to the prosecution (see, People v Costa, 183 A.D.2d 722; People v Kilgore, 168 A.D.2d 830; People v Gadson, 161 A.D.2d 795; People v Mendez, 138 A.D.2d 637). Since the evidence of guilt was less than overwhelming, it cannot be said that the error was harmless and, therefore, a new trial is required (see, People v Crimmins, 36 N.Y.2d 230).
In light of our decision, we need not address the defendant's remaining contentions. Bracken, J.P., Balletta, O'Brien and Copertino, JJ., concur.