People v. Paulin

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction of rape in the first degree vacated, and a new trial ordered.

The trial court erred in refusing to give a missing witness charge addressing the inference that could be drawn from the People’s failure to call complainant’s common-law husband to testify concerning her physical condition, as observed by him, when she returned home the morning after the alleged rape.

The proponent of a missing witness charge must make a prima facie showing that, among other things, the uncalled witness is…