majority">

*627OPINION OF THE COURT

Silverman, J.

Defendant appeals from a judgment of the Supreme Court convicting him after jury trial of assault in the first degree (Penal Law, § 120.10), and sentencing him to an indeterminate term of imprisonment of 5 to 15 years thereon.

Concededly the defendant shot the victim Johnson three times, resulting in injuries to Johnson’s lung, liver, colon and a major blood vessel, the inferior vena cava, which caused Johnson to spend 36 days in the hospital, and which, if left untreated, could have been fatal. Defendant’s contention, denied by Johnson, was that Johnson "was messing with my woman at the time, feeling her private parts”; that when defendant came to her assistance, Johnson pulled a knife; that defendant stepped back and fired into Johnson’s leg once to stop him; that Johnson looked at the wound, "catches an attitude” and came at defendant with a knife and tried to stab him, and the gun went off two more times. The incident took place in a social club in which the "woman” involved, one Theresa Ervin, apparently a girl of 14 or 15 years of age, was serving as a barmaid. Johnson testified that the attack was unprovoked and that there was no knife.

The issue in this case was self-defense. Justification—self-defense—excuses the use of physical force only "to the extent he [defendant] reasonably believes” necessary for defense. (Penal Law, § 35.15, subd 1.) In addition, as the loaded gun as used was obviously "deadly physical force” (Penal Law, § 10.00, subd 11), the defense would fail unless defendant reasonably believed that Johnson was "using or about to use deadly physical force” (Penal Law, § 35.15, subd 2, par [a]) and unless defendant could not with complete safety avoid the necessity for using deadly physical force by retreating (Penal Law, § 35.15, subd 2, par [a]). Thus, regardless of the origin of the incident, justification—self-defense—would not relieve defendant of guilt unless there was a threat of deadly physical force and retreat was not safely available, and he used no more than reasonably necessary force.

The resolution of the questions of fact in the case did not depend solely on the bare statements of the two participants. Circumstantial evidence strongly supported the prosecution’s view, (a) To begin with, it is at least unlikely that Johnson, shot in the leg once, facing a man holding a loaded gun pointed at him, would pursue his retreating assailant and *628attempt to attack with a knife, (b) As to the existence of the weapons, there is no doubt there was a loaded gun. The defendant conceded it and conceded the shooting; Johnson had the three bullet wounds; and three discharged shells were found on the floor by the police. On the other hand, no knife was ever found, (c) Johnson was clearly wounded. There is no contention that defendant suffered even a scratch from the alleged knife, (d) Johnson’s three bullet wounds included one in the back, (e) A police officer testified (and defendant denied) that at the time of arrest defendant said that he had tried to kill Johnson; that Johnson had a knife; and that Johnson had fondled defendant’s girlfriend’s private parts. That statement, consistent with defendant’s testimony about the origin of the fight and the presence of a knife, was hardly consistent with defendant’s claims of the defensive use of no more than reasonably necessary force, or that the gun just went off two more times. In the circumstances, it is not surprising that the jury rejected the claim of self-defense.

1. Although the barmaid was apparently actually in the court at one time during the trial, she was not called as a witness. The principal claim of error in the case is that the Trial Judge gave a "missing witness” charge with respect to her failure to testify. As the defendant testified in the case, such a charge could be given in an appropriate case. (People v Rodriguez, 38 NY2d 95.) This was such a case. The barmaid according to defendant was involved in the matter; defendant had come to her assistance; presumably she saw the whole affray. She was defendant’s "woman”; his "girlfriend”. Although defendant had not been in touch with her for four months before the trial, he knew her address, and had spoken to her four months before the trial to inquire about his child. Thus it would appear that she was "favorable to one party [defendant] and hostile to the other.” (People v Rodriguez, 38 NY2d 95, 98, supra.)

The Judge charged the jury: "Now, no Defendant is required to call any witness. However, if you find that the Defendant had control over Theresa Ervin and was close enough to her by relationship and if you further believe that this witness has evidence in her possession which would support the Defendant’s version of the case, the strongest inference may be drawn against the Defendant which opposing evidence in the record permits.” On appeal defendant argues that this charge was a gross overstatement and that the correct charge, assum*629ing its applicability at all, permits the jury only to infer that the missing witness would not testify favorably to the concealing party. (At the trial the objection was apparently not to the particular version of the missing witness charge, but to the alleged absence of control of the witness by defendant.)

The charge given by the court is obviously taken directly from that approved in Noce v Kaufman (2 NY2d 347). In People v Rodriguez (supra),in which the court approves the giving of a missing witness charge in a criminal case where the defendant testifies and fails to call a witness favorable to him and under his control, the court said: "The rule is that the jury, therefore, was entitled to consider that fact in assessing the strength of the evidence offered by the opposite side, here the People, on the issue which she was in a position to controvert. (Noce v Kaufman, 2 NY2d 347, 353 * * *)” (People v Rodriguez, supra, p 101). Thus the Court of Appeals cited Noce v Kaufman (supra),as its first authority in support of this statement. This would seem to be some indication that a charge modeled on that in the Nocecase would be appropriate.

As to the difference between the various forms of the missing witness charge, Richardson on Evidence (10th ed, § 92, pp 67-68) states: "While the authorities agree that, in a proper cáse, the failure of a party to call a witness will permit an unfavorable inference, there is no such accord in New York as to the precise nature of the unfavorable inference which may be drawn. Some courts have said that the jury may infer that had the witness been called his testimony would have been unfavorable * * * Other courts have held that the jury may not be permitted to speculate as to what the witness would have testified to had he been called; and that the correct rule is that the jury may construe the evidence already in the case most strongly against the party who might have called the witness to contradict or explain that evidence * * * The Court of Appeals has expressed the rule as follows: 'where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits.’ Noce v. Kaufman, 2 N. Y. 2d 347, 353 * * * Perhaps the conflict in the cases is more apparent that real.”

Fisch on New York Evidence (2d ed, § 1126, p 638) says: "In terms of what is often stated to be the correct rule, the only *630inference warranted is that the witness would not have controverted or corroborated material testimony which he was in a position to controvert or corroborate and the jury may, therefore, take adverse testimony most strongly against the party failing to contradict or refute it.” (Emphasis in original.)

In the circumstances, we think that the missing witness charge was correct.

2. Defendant also objects that cross-examination of him as to his carrying a loaded gun for two months preceding the incident and the purposes for which he was carrying it was improper. We think it was not, for two reasons: (a) Defendant having testified was subject to cross-examination as to any illegal conduct. (There was apparently no Sandoval motion [34 NY2d 371].) (b) The indictment included a charge of criminal possession of a weapon in the second degree (Penal Law, § 265.03), i.e., that defendant had in his possession a firearm, to wit, a loaded pistol with intent to use the same unlawfully against another. Thus the intent with which he was carrying the gun was a material issue in the case and the District Attorney could properly ask him what he was carrying the gun for. The count of criminal possession of a weapon in the second degree was submitted to the jury in the alternative.

3. It is also claimed that there was a violation of the attorney-client privilege in that the court overruled the objections to the District Attorney’s questions whether defendant had spoken to his attorney about the case and whether his attorney had mentioned to him what the law of self-defense was. We think that this was indeed a violation of the attorney-client privilege; but we think that it was harmless error. There was no disclosure of what the attorney had told the defendant. Whether or not these questions were asked, the jury would surely assume that in a case in which the only issue was self-defense, the attorney and client would have talked about it. And even without such questioning, the District Attorney could have argued, as he did in summation (without referring to the defendant’s discussion with his attorney), that the defendant’s story was an attempt to meet the requirements of the law of self-defense. The District Attorney said: "He knew he couldn’t beat the gun. He knew and that’s why he had to say my back was up against the wall.” This court has recently affirmed a conviction where precisely such a suggestion was made on summation. (People v Savage, 67 AD2d 562.) The inference that testimony is tailored to meet a *631particular rule of law has often been indulged in by courts without direct evidence of a conversation with a lawyer on that question (see, e.g., People v Quinones, 61 AD2d 765, 766; People v Garafolo, 44 AD2d 86, 88); and the District Attorney could have suggested that possibility to the jury without inquiry as to discussions with the attorney. In the circumstances, and as all that was brought out about conversations with the attorney was matter that the jury would inevitably assume to have happened anyhow, i.e., that the defendant and his lawyer discussed the only issue in the case, we think the error in permitting the question was harmless.

4. Defendant was convicted of assault in the first degree, a class C felony (Penal Law, § 120.10). He was sentenced to an indeterminate term of imprisonment of 5 to 15 years. As defendant has never previously been convicted of a felony, this was the maximum sentence which the law permitted. The crime arose out of an unpremeditated private incident, not out of an attempted robbery or other criminal activity (except, of course, carrying a gun). The defendant’s previous criminal record was relatively minor, involving apparently the theft of a car. While the defendant was hardly entitled to praise, we think the case does not call for the absolute maximum sentence which the law permits for a class C felony. Accordingly, we reduce the minimum from 5 years to 3 years.

The judgment of the Supreme Court, Bronx County (Silbermann, J.), rendered January 31, 1978, convicting defendant, on jury verdict, of assault in the first degree, and sentencing him to an indeterminate term of imprisonment of 5 to 15 years, should be modified, as a matter of discretion in the interest of justice, and the sentence of the defendant reduced to an indeterminate term of imprisonment of not less than 3 nor more than 15 years, and the judgment should be otherwise affirmed.

Citation profile

Relationships

How this case has been treated — in progress