Opinion
March 8, 1996
Appeal from the Supreme Court, Erie County, Cosgrove, J.
Present — Green, J.P., Pine, Fallon, Callahan and Boehm, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Supreme Court erred in denying defendant's request for a missing witness charge. Defendant met his initial burden of demonstrating that the uncalled witness, a paid informant who arranged and witnessed the sale of cocaine, was "knowledgeable about a pending material issue and that such witness would be expected to testify favorably to the opposing party" ( People v Gonzalez, 68 N.Y.2d 424, 428; see, People v McCune, 210 A.D.2d 978, lv denied 85 N.Y.2d 864; People v Ronchi, 154 A.D.2d 891; People v Anderson, 112 A.D.2d 782; People v Dillard, 96 A.D.2d 112). The burden then shifted to the People "to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate" ( People v Gonzalez, supra, at 428). The People failed to meet that burden. The prosecutor's unsubstantiated assertion that the witness claimed to have no recollection of the pertinent events is insufficient to establish that the witness was not available or that he was not knowledgeable about any pending material issue ( see, People v Macana, 84 N.Y.2d 173, 179-180). Because the issue of defendant's guilt turned upon the testimony of a single witness, the State Police investigator who initiated the drug sale, "it cannot be said that the testimony of the confidential informant would `necessarily be cumulative only or trivial'" ( People v Ronchi, supra, at 892, quoting People v Brown, 34 N.Y.2d 658, 660). Further, "the fact that a witness is `equally available' to both sides, standing alone, is insufficient to defeat a timely request for the charge" ( People v Gonzalez, supra, at 429; see, People v Dillard, supra, at 116).
Because the evidence of defendant's guilt is not overwhelming, the error cannot be deemed harmless ( see, People v Crimmins, 36 N.Y.2d 230, 241-242; People v Ronchi, supra, at 892) and a new trial is required. In view of our determination, we do not address defendant's remaining contention.