Request to Reopen a Case to Permit Another Defense Witness to Testify

In People v. Ventura (35 NY2d 654), after reviewing the "restricted proffer of the testimony the witness might be expected to give," the Court of Appeals found that the trial court reasonably exercised its discretion in denying the defense request to reopen the proof to permit another defense witness to testify. Similarly, in People v. Washington (supra), the Court of Appeals upheld the trial court's declination of the defense's request to reopen the case in order to permit the defendant to address the jury. Also relevant is People v. Walker (215 AD2d 418) which stands for the proposition that, while the court may appropriately exercise its discretion to alter the order of a trial by reopening the trial proof, this should only be done in certain circumstances such as reopening in order to permit the admission into evidence of an exhibit marked for identification and offered into evidence but inadvertently not received and marked into evidence. Other limited circumstances where it would be appropriate for the court to exercise its discretion to reopen the case would be: to allow a stipulation to be placed on the record or to allow the offering of newly discovered evidence (see, Muldoon, Handling a Criminal Case in New York 18:7 [1999 ed]). In People v. Serrano (261 AD2d 197) a trial court's decision to permit the People to reopen their case was upheld. However, as defense counsel aptly points out, the reopening in that case was for a limited purpose and due to unexpected developments; in this case, the People seek to reopen the case to recall witness Sergeant Daniel Gunderman in order to adduce evidence as to: "defendant's identity; the rules posted throughout the facility and his understanding of what contraband is." In People v. Hollis (255 AD2d 615) the trial court permitted the People to reopen their case to submit additional proof as to one element of a crime after the defense had moved to dismiss for failure to prove a prima facie case. The Appellate Division, Third Department, found that this was not an abuse of the trial court's discretion, noting that the People had submitted some evidence as to the allegedly unproven element and that the defendant's prejudice was solely due to its overwhelming probative value (id.).