People v. Erts

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division majority that defendant made a prima facie showing that the uncalled witness possessed knowledge on the critical issue in the case— i.e., whether it was defendant who sold the drugs — and that the trial court’s refusal to give a "missing witness” charge constituted reversible error. In People v Gonzalez (68 NY2d 424), we explained that a defendant seeking the charge has the initial burden of making a prima facie showing of entitlement. Thereafter, the court must give the…