PEOPLE v. COSTAS (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Karen M. Wilutis, J.), rendered November 30, 2022, convicting him of endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the County Court properly denied his motion to sever count 1 from counts 2 and 3 of the indictment because the nature of the proof for count 1 was material and admissible as evidence of counts 2 and 3 (see CPL 200.20[2][b];  People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  People v. Dixon, 211 A.D.3d 1030, 1031, 180 N.Y.S.3d 292).  As the offenses were properly joined in one indictment from the outset pursuant to CPL 200.20(2)(b), the court lacked the statutory authority to sever them (see People v. Bongarzone, 69 N.Y.2d at 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  People v. Tyme, 222 A.D.3d 783, 783, 202 N.Y.S.3d 234).

Further, the County Court properly denied the defendant's request for a missing witness charge with respect to a certain investigating police officer.  A party seeking a missing witness charge bears the initial burden of demonstrating “(1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, (2) that such witness can be expected to testify favorably to the opposing party, and (3) that such party has failed to call the witness to testify” (People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583;  see People v. Smith, 33 N.Y.3d 454, 458–459, 104 N.Y.S.3d 572, 128 N.E.3d 649).  Here, the defendant failed to demonstrate that the officer was knowledgeable about a material issue in the case (see People v. Goldson, 196 A.D.3d 599, 600, 147 N.Y.S.3d 451;  People v. Arcila, 177 A.D.3d 585, 587, 113 N.Y.S.3d 715).

CONNOLLY, J.P., MILLER, WAN and LOVE, JJ., concur.