PEOPLE v. LOPEZ (2019)

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered May 20, 2014, convicting defendant, after a jury trial, of forcible touching and sexual abuse in the third degree, and sentencing him to an aggregate term of one year, unanimously affirmed.

The court properly denied defendant's request for a missing witness charge as to the victim, who had relocated to another state and failed to reveal her new address or otherwise cooperate in any way with the prosecution.  The People established that, notwithstanding her status as a victim, she could not be deemed under the People's control for missing witness purposes, and was likewise unavailable (see People v. Gonzalez, 68 N.Y.2d 424, 427–429, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986];  People v. Smith, 279 A.D.2d 259, 719 N.Y.S.2d 33 [1st Dept. 2001], lv denied 96 N.Y.2d 835, 729 N.Y.S.2d 456, 754 N.E.2d 216 [2001];  see also People v. Gardine, 293 A.D.2d 287, 740 N.Y.S.2d 52 [1st Dept 2002], lv denied 98 N.Y.2d 651, 745 N.Y.S.2d 509, 772 N.E.2d 612 [2002] ).

In any event, regardless of whether the court should have granted a missing witness charge regarding the uncooperative victim, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ), including police observations of defendant's conduct leading up to and during the crime, and an officer's cell phone video.  In particular, there was no reasonable possibility that defendant's unmistakable sexual contact with a stranger on the subway was either consensual or inadvertent.  Moreover, the court permitted defense counsel to comment on the victim's absence.