People v. Mateo

Judgment, Supreme Court, New York County (James Leff, J.), rendered May 3, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the second degree, and sentencing him as a second felony offender, to a term of 7 years to life, unanimously affirmed.

The court properly instructed the jury that defendant’s common-law wife was a missing witness (see, People v Gonzalez, 68 NY2d 424 , 427), the defense having failed to meet his burden of showing that her testimony would be cumulative to that of his other alibi witnesses (see, People v Fields, 76 NY2d 761 , 763). The court’s charge fairly tracked the preferable instructions set forth in People v Paylor ( 70 NY2d 146 , 149), and the inclusion of "the strongest adverse inference” language, which should be avoided, does not, in the circumstances of this case, in light of the overwhelming evidence, warrant reversal. Concur — Carro, J. P., Rosenberger, Ellerin, Kupferman and Kassal, JJ.