DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered September 29, 2016, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
The defendant was charged with robbery in the first degree (Penal Law § 160.15[4]) in connection with an incident that occurred on October 5, 2014. At trial, two witnesses identified the defendant as the assailant. The defendant presented two alibi witnesses. After trial, a jury convicted him of robbery in the first degree.
The defendants contention that the evidence was legally insufficient to establish his identity as the perpetrator of the crime is unpreserved for appellate review (see CPL 470.05[2]); People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, the defendants contention is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendants identity as the perpetrator beyond a reasonable doubt. Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we are satisfied that the jurys finding that the defendant was the perpetrator of the crime was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
However, despite the legal and factual sufficiency of the evidence, the defendant was deprived of his right to a fair trial. “The decision to grant or deny an adjournment request is committed to the trial courts sound discretion” (People v. Cooper, 192 A.D.3d 823, 823, 139 N.Y.S.3d 902). However, “[w]here the protection of fundamental rights is involved, the trial courts discretion is ‘more narrowly construed’ ” (People v. Nelson, 189 A.D.3d 1080, 1081, 133 N.Y.S.3d 872, quoting People v. Spears, 64 N.Y.2d 698, 700, 485 N.Y.S.2d 521, 474 N.E.2d 1189; see People v. Foy, 32 N.Y.2d 473, 476–477, 346 N.Y.S.2d 245, 299 N.E.2d 664). “[W]hen the witness is identified to the court, and is to be found within the jurisdiction, a request for a short adjournment after a showing of some diligence and good faith should not be denied merely because of possible inconvenience to the court or others” (People v. Foy, 32 N.Y.2d at 478, 346 N.Y.S.2d 245, 299 N.E.2d 664). Under the circumstances here, the Supreme Court should have granted a one-day continuance for the defendants daughter to travel to New York from out of state (see id.). The failure to grant this continuance cannot be considered harmless error, as there was conflicting testimony as to the defendants whereabouts at the time of the robbery (see People v. Locicero, 87 A.D.3d 1163, 1164, 930 N.Y.S.2d 58).
Although the defendants contention that the Supreme Court improvidently exercised its discretion in granting the prosecutions request for a missing witness charge is unpreserved for appellate review (see People v. Brown, 99 N.Y.2d 488, 758 N.Y.S.2d 602, 788 N.E.2d 1030), this issue is inextricably linked with the denial of the defendants request for a continuance, and this Court will consider the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]). “The failure to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge, ‘[r]ather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him [or her], and that the witness is available to such party’ ” (People v. Davydov, 144 A.D.3d 1170, 1172–1173, 43 N.Y.S.3d 74, quoting People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583). “The party opposing the charge, in order to defeat the proponents initial showing, must either account for the witnesss absence or demonstrate that the charge would not be appropriate” (People v. Arcila, 177 A.D.3d 585, 587, 113 N.Y.S.3d 715). “If the party opposing the charge succeeds in rebutting the proponents prima facie showing, the proponent ‘retains the ultimate burden to show that the charge would be appropriate’ ” (id. at 587, 113 N.Y.S.3d 715, quoting People v. Smith, 33 N.Y.3d 454, 459, 104 N.Y.S.3d 572, 128 N.E.3d 649).
While the evidence shows that the defendants daughter was knowledgeable about a material issue in the case, namely, the defendants alibi, there is no evidence that her testimony would have been noncumulative of the testimony of the other two alibi witnesses. Additionally, the defendant was able to account for the daughters absence, and was denied the chance to present her testimony. Accordingly, the subsequent missing witness charge was unduly prejudicial, as it is “unfair as well as illogical to allow a jury to draw an adverse inference from the failure of the party to call a witness when the party is unable to do so” (People v. Gonzalez, 68 N.Y.2d at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583). Under these particular circumstances, the Supreme Courts determinations to deny the defendants request for a continuance and to grant the prosecutions request for a missing witness charge, when viewed together, deprived the defendant of his right to a fair trial.
The defendants remaining contentions, including those raised in his pro se supplemental brief, need not be reached in light of our determination.
IANNACCI, J.P., MILLER, GENOVESI and FORD, JJ., concur.