PEOPLE v. HAGANS (2003)

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered October 12, 1995, convicting defendant, after a jury trial, of attempted murder in the second degree, kidnapping in the second degree and assault in the first degree, and sentencing him to concurrent terms of 3 to 9 years, unanimously affirmed.

The court properly granted the prosecutor's request for a missing witness charge with respect to the woman who accompanied defendant at critical times on the date of the incident (see People v. Keen, 94 N.Y.2d 533, 707 N.Y.S.2d 380, 728 N.E.2d 979).   The record indicates that this witness was defendant's girlfriend at the time of the trial, and was clearly under defendant's control.   The record supports the court's finding that her testimony would not have been cumulative, particularly since the testimony of the other defense witnesses was conflicting and did not fully cover the time period at issue (see People v. Fields, 76 N.Y.2d 761, 559 N.Y.S.2d 951, 559 N.E.2d 645).

The court properly denied defendant's request for a missing witness charge as to the victim's brother (see People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583).   In any event, defendant was permitted to argue in summation, and in fact did so, as to the witness's absence.