PEOPLE v. BAUBLITZ (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Gregory Storie, J.), rendered March 1, 2024, upon a verdict convicting defendant of the crimes of burglary in the first degree and attempted robbery in the second degree.

In the early morning hours of October 23, 2022, the 79–year–old victim was asleep on the couch of his home when he was bludgeoned by an intruder.  Bleeding profusely from several lacerations on his head, the victim, who had no phone, was able to drive to the local police station and report the incident.  During the ensuing investigation, the police received a tip from a confidential informant, implicating both defendant and Scott Stewart in the attack.  Law enforcement then interviewed Stewart, who admitted to his involvement and identified defendant as his accomplice.  In a singular indictment, defendant and Stewart were charged with one count each of burglary in the first degree, assault in the second degree and attempted robbery in the second degree.  At trial, defendant pursued a theory that Stewart, who had entered a plea and testified against defendant in exchange for a favorable sentence, was the sole perpetrator and had falsely accused defendant in order to attain his advantageous plea deal.  The People called Stewart, three law enforcement personnel involved with the investigation, and an individual who was in jail with defendant while he was awaiting trial and who testified that defendant admitted that he participated in the attack.  The jury ultimately found defendant guilty of the burglary and robbery charges, but acquitted on the assault charge.  Defendant was sentenced to a prison term of 19 years, to be followed by five years of postrelease supervision, for the burglary conviction, and a lesser concurrent term of imprisonment on the attempted robbery conviction.  Defendant appeals, and we now affirm.

Initially, we hold that the verdict is supported by legally sufficient evidence and is not against the weight of the evidence.  To assess the legal sufficiency of a jury verdict, “we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v. Cokely, 249 AD3d 1329, 1330 [3d Dept 2026] [internal quotation marks and citations omitted];  see People v. Danielson, 9 NY3d 342, 349 [2007] ).  In contrast, weight of the evidence review requires that we “determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then [we] must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” (People v. Moore, 223 AD3d 1085, 1086–1087 [3d Dept 2024] [internal quotation marks, brackets and citations omitted], lv denied 41 NY3d 1003 [2024];  see People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ).

Defendant's legal sufficiency and weight of the evidence arguments reduce to attacks on the credibility of the witnesses who identified defendant as an attacker, namely Stewart and the jailhouse informant.  However, defense counsel thoroughly cross-examined these witnesses on their plea deals and criminal histories.  Stewart was also questioned extensively about his drug abuse.  Given that the jury was fully aware of the circumstances surrounding each witness' testimony, and because their testimony was corroborating and consistent with the limited physical evidence, we have no hesitation deferring to the jury's credibility determinations (see e.g. People v. Rickett, 244 AD3d 1284, 1287 [3d Dept 2025], lv denied 45 NY3d 938 [2026]; =People v. Luna, 206 AD3d 1250, 1252–1253 [3d Dept 2022]; People v. Wingo, 103 AD3d 1036, 1036–1037 [3d Dept 2013], lv denied 21 NY3d 1021 [2013] ).¹  Furthermore, given the direct evidence of defendant's identity, the lack of forensic evidence does not render the verdict legally insufficient or against the weight of the evidence (see People v. Brown, 204 AD3d 1390, 1392 [4th Dept 2022], lv denied 39 NY3d 985 [2022]; People v. Randolph, 180 AD3d 716, 717 [2d Dept 2020], lv denied 35 NY3d 1048 [2020]; People v. Kindred, 60 AD3d 1240, 1241 [3d Dept 2009], lv denied 12 NY3d 926 [2009] ).

We also reject defendant's argument that he was entitled to a missing witness charge for the confidential informant.  “The missing witness instruction allows a jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events” (People v. Smith, 33 NY3d 454, 458 [2019] [internal quotation marks and citation omitted];  see People v. Khiamdavanh, ––– NY3d ––––, ––––, 2026 N.Y. Slip Op 03903, *1–2 [2026] ).  “The burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call [the witness] to testify” (People v. Gonzalez, 68 N.Y.2d 424, 427 [1986] ).  The opposing party may rebut the proponent's prima facie showing “by demonstrating that the witness is not knowledgeable about the issue[;] that the issue is not material or relevant[;] that although the issue is material or relevant, the testimony would be cumulative to other evidence[;] that the witness is not available[;] or that the witness is not under the party's control” (id. at 428 [internal quotation marks omitted] ).  “If the party opposing the charge meets its burden by rebutting the prima facie showing, the proponent retains the ultimate burden to show that the charge would be appropriate” (People v. Smith, 33 NY3d at 459 [citations omitted] ).  This Court reviews the trial court's decision to decline a missing witness charge for an abuse of discretion (see e.g. People v. Onyia, 70 AD3d 1202, 1204 [3d Dept 2010] ).

We hold that County Court did not abuse its discretion by denying defendant's request for a missing witness charge.  Assuming defendant satisfied his initial burden on the application, the People convincingly argued that the witness in question – a confidential informant who knew both defendant and Stewart personally and was the first person to implicate them in the crime, leading to the police interview with Stewart – could provide only cumulative testimony.  Stewart testified to defendant's role in the attack and the jailhouse informant testified that defendant made an admission.  Furthermore, as County Court observed during the charge conference after both parties had rested, the evidence demonstrated that the confidential informant was not at the scene of the crime and that any knowledge they had was based on hearsay.  Defendant failed to come forward with additional evidence to satisfy his ultimate burden.  Accordingly, we agree with County Court that a missing witness charge was inappropriate (see People v. Khiamdavanh, ––– NY3d at ––––, 2026 N.Y. Slip Op 03903, *2).

Finally, defendant has not demonstrated that he was denied meaningful representation.  Specifically, defendant asserts that his trial counsel erred by failing to elicit testimony from Stewart that would have permitted defendant to call his own witness who would testify to a conversation in which Stewart explained that he had fabricated defendant's involvement.  After the People rested, they preemptively asked the court to rule on the admissibility of such testimony, arguing that there was not a proper foundation for the hearsay to be admitted.  County Court agreed, concluding that defendant would have had to specifically ask Stewart about the conversations he had with defendant's potential witness before that witness could testify about his conversations with Stewart.

We cannot agree with defendant that there was no strategic explanation for trial counsel's failure to specifically ask Stewart about any conversations he had with defendant's potential witness (see generally People v. Benevento, 91 N.Y.2d 708, 712–713 [1998] ).  In fact, during his cross-examination of Stewart, trial counsel asked whether Stewart had talked to the confidential informant about the crime in question and Stewart unequivocally and repeatedly testified that he had not.  Trial counsel then asked whether Stewart had ever discussed the offense with other friends from town, and he responded, “[n]ot really.”  Trial counsel then moved on from this line of questioning.  Given Stewart's indication that he did not discuss the case with associates, at this point trial counsel may have reasonably calculated that any further questioning along these lines would have been fruitless and, perhaps, could have even highlighted the lack of foundation for defendant's potential witness.  Instead, trial counsel argued, albeit unsuccessfully, that no foundation was required.  Moreover, even if we could conclude that trial counsel's actions were plainly unreasonable – which we cannot – trial counsel's decision to move on from asking Stewart about his conversation with others regarding this case is not the sort of “clear-cut and completely dispositive” error that, on its own, evinces the ineffective assistance of counsel (People v. Turner, 5 NY3d 476, 481 [2005];  see People v. Collins, 229 AD3d 846, 848–849 [3d Dept 2024];  People McGowan, 149 AD3d 1161, 1162–1163 [3d Dept 2017], lv denied 29 NY3d 999 [2017] ).  Additionally, counsel presented cogent opening and closing arguments, pursued a sensible theory of the case – targeting the lack of physical or forensic evidence connecting defendant to the crime scene and the credibility of Stewart and the jailhouse informant – and made appropriate objections throughout trial.  We also note that defendant was acquitted of one offense.  Thus, viewing trial counsel's representation in its totality, we conclude that defendant was afforded meaningful representation.  Defendant's remaining contentions have been considered and rejected.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Although defendant also argues that there was inadequate corroboration of Stewart's testimony under CPL 60.22(1), this claim is unpreserved as defendant did not request that the jury be charged pursuant to that statute (see People v. Moyer, 75 AD3d 1004, 1005 [3d Dept 2010] ).  In any event, the minimal corroboration requirement set forth by section 60.22 was satisfied here by the testimony from the jailhouse informant, who stated that defendant admitted to the crime (see People v. Kerrick, 206 AD3d 1268, 1270 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]; People v. Miles, 119 AD3d 1077, 1079 [3d Dept 2014], lv denied 24 NY3d 1003 [2014];  see generally People v. Reome, 15 NY3d 188, 191–192 [2010] ).

Reynolds Fitzgerald, J.

Garry, P.J., Clark, Aarons and Ryba, JJ., concur.