People v. Mickewitz

—Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant made a prima facie showing of his entitlement to a missing witness charge. The burden then shifted to the People to account for the witness’s absence or to show that the charge would be inappropriate (see, People v Gonzalez, 68 NY2d 424, 428). The People failed to meet that burden. "[X]n the absence of a showing of why the witness was not called or that the charge, for some reason, would not be proper—the inference may be fairly drawn that the testimony of the missing witness, if called, would have been…