People v. Solis

Yesawich, Jr., J.,

concurs in a memorandum. Yesawich, Jr., J. (concurring). I am unable to agree with County Court’s conclusion that the missing witness’s testimony would necessarily be cumulative (see, People v Dillard, 96 AD2d 112, 116-117). Nevertheless, I vote to affirm the conviction because I find nothing in the record indicating that defendant, when requesting the missing witness charge, carried his burden of showing that the uncalled witness could be expected to testify favorably to the People’s cause (see, People v Dianda, 70 NY2d 894, 896; People v Gonzalez, 68 NY2d 424, 428).