PEOPLE v. NERIS (2021)

ORDERED that the judgment of conviction, insofar as appealed from, is reversed, on the law, and the matter is remitted to the Criminal Court for a new trial on the charge of common-law driving while intoxicated.

Defendant was charged with, among other things, common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and, after a jury trial, insofar as relevant to this appeal, was found guilty of that charge. On appeal, defendant argues that the judgment of conviction should be reversed and the matter remitted for a new trial because, among other things, the Criminal Court should not have granted the People's request for a missing witness charge with respect to defendant's mother.

A party requesting a missing witness charge bears the initial burden of showing, among other things, that the witness can be expected to have knowledge about a material issue and to provide noncumulative testimony favorable to the opposing party (see People v Savinon, 100 NY2d 192, 197 [2003]; People v Kitching, 78 NY2d 532, 536-537 [1991]; People v Gonzalez, 68 NY2d 424, 427-428 [1986]). In our view, the Criminal Court erred in granting the People's request as the People failed to establish a prima facie basis for the charge (see People v Savinon, 100 NY2d 197). According to defendant's own testimony, she was at her mother's house prior to driving her vehicle to the location where she was stopped by police and arrested, but her mother was not with her in the house or while she was operating her vehicle. Consequently, the People failed to demonstrate that defendant's mother was sufficiently knowledgeable about whether defendant had consumed alcohol prior to her arrest. Since it cannot be said that the error was harmless, a new trial is required (see People v O'Hara, 253 AD2d 560 [1998]), and, under the circumstances presented, we need not pass upon any other issue.

Accordingly, the judgment of conviction, insofar as appealed from, is reversed and the matter is remitted to the Criminal Court for a new trial on the charge of common-law driving while intoxicated.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.