PEOPLE v. HERNANDEZ (1998)

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered July 15, 1997, convicting defendant, after a jury trial, of assault in the first degree and aggravated criminal contempt, and sentencing her, as a second felony offender, to a determinate term of 13 years on the assault conviction and a concurrent term of 21/212 to 5 years on the contempt conviction, unanimously affirmed.

 The court properly rejected defendant's request for a missing witness charge concerning the victim, defendant's former domestic partner, since “she was unavailable based upon her refusal to testify ․ and was not under the control of the People such that she could be expected to give testimony favorable to the prosecution” (People v. Rivera, 234 A.D.2d 19, 20, 650 N.Y.S.2d 647, lv. denied 89 N.Y.2d 1040, 659 N.Y.S.2d 871, 681 N.E.2d 1318).   The circumstances, including defense counsel's conversation with the victim, in which she expressed hostility to the prosecution and refusal to testify, establish that the victim was, if anything, “favorable to or under the influence of [defendant] and hostile to the [People]” (People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583), rather than the other way around.   By the time of trial, the victim had, at the very least, ceased to be “in a pragmatic sense unavailable to [defendant]” (id., at 431, 509 N.Y.S.2d 796, 502 N.E.2d 583;  see also, People v. Swinton, 200 A.D.2d 892, 607 N.Y.S.2d 161, lv. denied 83 N.Y.2d 1007, 616 N.Y.S.2d 489, 640 N.E.2d 157;  People v. Santiago, 187 A.D.2d 255, 257, 589 N.Y.S.2d 422, lv. withdrawn 81 N.Y.2d 794, 594 N.Y.S.2d 741, 610 N.E.2d 414).   In any event, defendant was given ample latitude on summation to comment on the victim's absence, and there was overwhelming evidence of defendant's guilt, including the victim's excited utterances at the scene implicating defendant.

MEMORANDUM DECISION.