The Defendant herein is charged with one (1) count of Assault in the Second Degree pursuant to Penal Law §120.05(4), and three (3) counts of Reckless Endangerment in the Second Degree pursuant to Penal Law §120.20. These charges stem from the Defendant’s alleged shooting the victim in his hand with a pellet rifle.On a sunny, bright afternoon, on May 26, 2018, on the shores of a small public lake in Sullivan County the Defendant, Fedor Korostylev1, with two other Russian speaking friends were fishing. Into this bucolic setting Robert Failla2 launched a small row boat and began a day of fishing with his brother and twelve (12) year old son. In passing the defendant’s fishing camp they exchanged pleasantries in broken English with the Failla family, and thereafter lost site of one another as the Failla fishing boat circumnavigated the lake.3After a few hours of fishing Robert Failla, sitting in the bow of his row boat, and loading another arrow in his cross-bow for fishing, he testified that he heard a sharp sound; felt extreme pain in his hand, and thought the pain was caused by a mishap with his cross-bow. However, immediately upon seeing blood pumping out with his finger, “and as a former law enforcement officer, it came back [to him].” He further testified that he then realized he had been shot and ordered his son and brother to “take cover” in the boat. Upon returning to the boat launch area the victim noticed what appeared to be a “high powered” BB/pellet rifle near the beach chair that the defendant had been sitting. Based upon the victim’s 911 call, several police cars from various police agencies arrived on the scene “within seconds.” The victim was not taken to the hospital, but chose to drive home before making his official report at the Sullivan County Sheriff’s Department. Thereafter, he drove himself to the emergency room at the local hospital and was discharged. According to the victim’s testimony, seven (7) days later, a surgeon4 at the local hospital removed the pellet from his finger.The Defendant, by his attorney, moves this Court for an Order granting dismissal or in the alternative for a Missing Witness jury charge. The People opposed the applications.During his trial testimony, the victim recounted his alleged injuries in detail from the BB gun pellet, including the fact that he required surgery on his hand to remove the pellet. The victim further testified on direct examination that he has a significant scar from the wound,5 and does not have full range of motion in his thumb and forefinger. The People did not call the victim’s treating physician nor his surgeon, or any other medical professional to support the testimony of the victim as it pertains to his injuries, his surgery nor continued physical impairment. The Prosecutor also chose not to offer the medical records for his surgery or for any treatment at the Hospital.At the close of the People’s case, the Defendant moved for a Trial Order of Dismissal on the charge of Assault 2nd, on the grounds that not a shred of medical testimony was offered to establish serious physical injury.The Defendant thereafter moved for a Missing Witness charge to be given to the jury, arguing that there was a complete lack of medical testimony regarding the victim’s alleged injuries and physical impairment and further alleged that the pellet that caused the injury was not entered into evidence nor was it recovered and preserved as evidence in this matter.The Prosecutor argued that the victim testifying alone, when viewed in the light most favorable to the People, did support a prima facie case showing serious physical injury. This Court is constrained to deny the Defendant’s motion for a trial order of dismissal. Although highly unusual the Prosecutrix chose not to introduce the medical records, the Court finds that there is no legal requirement to do so for a jury to find serious physical injury.The Defendant contends that the medical professional(s) who treated the Defendant are material witnesses as to the victim’s alleged serious physical injury, and because they were not called as witnesses by the People, the Defendant asserts that the jury should not receive the Assault Charge.The Defendant also contends, in the alternative, that he is entitled to the charges for the surgeon that was never called to identify the “projectile” allegedly recovered from the victim’s hand. The Missing Witness charge, as provided in New York’s Pattern Jury Instructions 1:75, instructs a jury that it may draw an adverse inference against one party based upon that party’s failure to call a witness who would be expected to provide testimony supporting that party’s position.In DeVito v. Feliciano, 22 NY3d 159 (Ct App 2013), the Court of Appeals held that:An “uncalled witness” or “missing witness” charge instructs a jury that it may draw an adverse inference based on the failure of a party “to call a witness who would normally be expected to support that party’s version of events” (People v. Savinon, 100 NY2d 192, 196 [2003]). The charge, found in Pattern Jury Instructions at 1:75, advises a jury that if a party fails to offer a reasonable explanation for its failure to call a witness to testify on a questions, then the jury “may, although it is not required to, conclude that the testimony of the witness would not support that party’s position on the question…and would not contradict the evidence offered by the opposing party on this question” The jury is instructed that it “may draw the strongest inference that the opposing evidence permits against as witness who fails to testify in a civil proceeding” (Matter of Nassau County Dept. Of Social Servs. v. Denise J., 87 NY2d 73, 79 [1995]; see PJI 1:75).If that party does not offer a reasonable explanation as to its failure to call a witness on the particular issue in question, the Missing Witness charge advises the jury that it may — but is not required to — conclude that the witness’ testimony would not have supported that party’s position on the issue and would not contradict the evidence or testimony offered by the opposing party on the issue. The Missing Witness charge is appropriate when three (3) conditions are met: (a) the witness’ knowledge is material to the trial; (b) the witness must be expected to give non-cumulative testimony favorable to the party against whom the charge is sought; and (c) the witness must be available to that party. People v. Smith, 2019 WL 2374228 (Ct App June 6, 2019). A person’s testimony may be considered as cumulative of another’s testimony only when both individuals are testifying in favor of the same party.In the case at Bar the surgeon has expert medical knowledge of the nature of the injury, the surgery and the alleged pellet removed from the victim’s finger. The surgeon’s testimony would be non-cumulative to the extent of the surgery and most crucial to establish the existence of the alloy pellet.6 There was no testimony that anyone saw the Defendant shoot the air gun at the victim at the time he was allegedly struck in his hand.In Leahy v. Allen (221 AD2d 88 [3d Dept 1996]), in which the Third Department held that “one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party” (id. At 92) noting that to hold “otherwise would lead to an anomalous result. Indeed, tif the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiff’s assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge” I(id.). Devito (id.) In order to rebut the request for a Missing Witness charge, the opposing party must demonstrate that the “missing” witness is not knowledgeable about the issue, that the issue is not material or relevant, that the testimony from the “missing” witness would be cumulative to other evidence, that the “missing” witness is not available, and/or that the “missing” witness is not under the party’s control such that the witness would be expected to testify in the party’s favor. People v. Keen, 94 NY2d 533 (Ct App 2000).The victim testified at length about the alleged serous physical injury to his hand that he suffered after being shot by a BB pellet, allegedly by the Defendant. The victim further testified on direct examination that he required surgery to remove the BB pellet from his hand, and that he has continuing physical impairment of his hand as a result of the injury. None of the victim’s medical records were entered into evidence, nor were any of the victim’s treating physicians called as witnesses to support the victim’s testimony regarding his injury. Considering that the Defendant was charged with Assault in the Second Degree, which requires a finding of serious physical injury, it is axiomatic that the testimony of a medical professional with knowledge of the Defendant’s injury would be material and relevant. No explanation — reasonable or otherwise — was provided as to why the Surgeon, nor his records, was not called to testify as to the surgery and recovery of the pellet. Also, there was proffered excuse or reason as to why the pellet was not preserved as evidence, if in fact a pellet was recovered.In the case at bar, the testimony as to the surgically recovered “pellet” is germane, material and critical to the issue of the victim being shot by the Defendant’s pellet rifle and is not cumulative.There was no showing that the surgeon or his records were unavailable to the People and not within their control. As such, the defense is entitled for the jury to receive a Missing Witness charge in this matter.Therefore, it is herebyORDERED, that the Defendant’s request for a Missing Witness jury charge is granted.This shall constitute the Decision and Order of this Court.Dated: July 8, 2019Monticello, New York
