People v. Morgan

228 A.D.2d 704, 646 N.Y.2d 9, 646 N.Y.S.2d 9, 1996 N.Y. App. Div. LEXIS 7372

Opinion

The court erred in failing to give a missing witness charge with respect to the People’s failure to call one of the eyewitnesses to the crimes. However, the eyewitness who did testify at trial provided a clear connection between the defendant and the crimes. The eyewitness stated that he observed the defendant running after the victim while firing several shots, bending down and grabbing a black bag from near the victim’s body before running down the street and getting into a white Mustang, and picking up another man before driving away. The eyewitness testified that immediately after the white Mustang drove away, he pointed it out to the police officers who were already in pursuit. Those police officers were among the many police officers and police detectives who ultimately pursued the white Mustang and apprehended the defendant and his passenger, recovering a black bag and a Taurus .9 millimeter gun from which the bullets that had killed one of the victims were fired. Thus, in light of the overwhelming evidence of the defendant’s guilt, the failure to give a missing witness charge was harmless (see, People v Crimmins, 36 NY2d 230, 237).

The defendant’s remaining contention is without merit. Miller, J. P., Pizzuto, Santucci and Hart, JJ., concur.