80 SSM 28.
Decided February 11, 2010.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered October 3, 2008. The Appellate Division affirmed a judgment of the Monroe County Court (Richard A. Keenan, J.), which had convicted defendant, upon a jury verdict, of sexual abuse in the first degree (Penal Law § 130.65) and wilful violation of health laws (Public Health Law § 12-b).
The Appellate Division concluded that County Court did not err in refusing to suppress defendant's statements to investigators from the Attorney General's office since the record supported the court's determination that the comments of defendant that his union representative and a friend who was a sheriff's deputy advised him not to speak to the police, and his comment that he did not have an attorney and could not afford one, did not constitute an unequivocal assertion of his right to counsel. The Appellate Division also concluded that County Court did not abuse its discretion in refusing to give a missing witness charge.
People v Edwards, 55 AD3d 1411, affirmed.
Timothy P. Donaher, Public Defender, Rochester ( Grazina Myers of counsel), for appellant.
Andrew M. Cuomo, Attorney General, New York City ( Roseann B. MacKechnie of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed. Whether a particular request for counsel "is or is not unequivocal is a mixed question of law and fact," which, if supported by record evidence, is beyond further review by this Court ( People v Glover, 87 NY2d 838, 839). Such record evidence exists here.
A missing witness charge is warranted for a party's failure to produce a witness, under its control, where his or her testimony would have been material and noncumulative of other testimony or evidence ( see People v Macana, 84 NY2d 173, 177; People v Gonzalez, 68 NY2d 424, 427). "[T]he party seeking the missing witness charge must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party" ( Macana, 84 NY2d at 177). Here, defendant argued that the uncalled witness could have either contradicted or corroborated the complaining witness, but did not demonstrate that her testimony would have been noncumulative or expected to be favorable to the People.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.