A reminder: In 1986 the Court of Appeals held that a party seeking a missing witness instruction has the burden of making the request “as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428 [1986]). So , if an attorney doesn’t not make a reuesst for such a chargeas early as practicable a coourt may proeprly deny the request,e ven if the requirements of the charge are otherwise met.
In People v Carr (2010 NY Slip Op 02677 [NY 4/1/10]) the Court explained that
Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.
In Carr, where the defendant knew at the outset of the trial that the People did not intend to call three of the victim’s relatives who were present at the time of the alleged crime, the Court held that the trial did not abuse its discretion in holding that defendant’s request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case in chief, came too late.
