PEOPLE v. MICKEWITZ (1997)

 Defendant made a prima facie showing of his entitlement to a missing witness charge.   The burden then shifted to the People to account for the witness's absence or to show that the charge would be inappropriate (see, People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583).   The People failed to meet that burden.  “[I]n the absence of a showing of why the witness was not called or that the charge, for some reason, would not be proper-the inference may be fairly drawn that the testimony of the missing witness, if called, would have been unfavorable” (People v. Kitching, 78 N.Y.2d 532, 537-538, 577 N.Y.S.2d 231, 583 N.E.2d 944).   Supreme Court therefore erred in denying defendant's request for a missing witness charge.   In light of the less than overwhelming evidence of defendant's guilt, the error is not harmless (see, People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Puckett, 212 A.D.2d 1041, 623 N.Y.S.2d 444).

 Because the People's case depended entirely upon circumstantial evidence, the court erred in permitting the jury to decide whether to apply the moral certainty standard of proof, i.e., “[t]he circumstantial facts proved must exclude to a moral certainty every hypothesis but guilt” (1 CJI[NY] 9.05, at 475;  see, People v. Silva, 69 N.Y.2d 858, 859, 514 N.Y.S.2d 710, 507 N.E.2d 303;  People v. Ford, 66 N.Y.2d 428, 442, 497 N.Y.S.2d 637, 488 N.E.2d 458).   The prosecution's case rested only upon direct evidence of the collateral facts that defendant and his cousin were in the truck from which the fatal shot was fired and that the barrel of the shotgun was sticking out of the window on the driver's side.   There was no proof, however, that defendant fired the shotgun or even that he, rather than the passenger, was holding the shotgun.   Thus, because the evidence of defendant's guilt was entirely circumstantial, the failure of the trial court to instruct the jury that it must apply the moral certainty standard of proof may not be deemed harmless.   Harmless error analysis is inapplicable where the “jury could not have known of its duty to apply the circumstantial evidence standard to the prosecution's entire case” (People v. Sanchez, 61 N.Y.2d 1022, 1023, 475 N.Y.S.2d 376, 463 N.E.2d 1228).

We have reviewed the remaining contention of defendant raised in his pro se supplemental brief and conclude that it is without merit.

Judgment unanimously reversed on the law and new trial granted.

MEMORANDUM: