People v. Ramirez

73 A.D.2d 567, 422 N.Y.S.2d 963, 1979 N.Y. App. Div. LEXIS 14351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1979
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County, dated May 19, 1976, convicting defendant, after jury trial, of the crime of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41) and sentencing him thereon, is reversed, on the law, and a new trial ordered. Defendant was originally sentenced to an indeterminate term of imprisonment of six years to life. On November 21, 1979, in accordance with the recent amendments of the drug laws (Penal Law, § 60.09, subd b, par [ii]; L 1979, ch 410, § 3), defendant was resentenced to a term of three years to life, nunc pro tunc as of the time of the original sentence. With the consent of both sides, we consider the appeal from the judgment, as so modified. Defendant was charged with a sale of cocaine to an undercover police officer in a certain apartment on November 8, 1973. There was present at the transaction a female informant. At the trial, the informant’s identity was disclosed to defendant’s attorney and defendant’s attorney was given an opportunity to interview her, which he did. But during most of the time, even when under subpoena by the defendant, the informant remained in the District Attorney’s office. The District Attorney stated that he did not intend to call her as a witness. The defendant did not call her. The defendant requested the court to give an unfavorable inference charge (referred to as a charge of an inference favorable to defendant) because of the District Attorney’s failure to call the informant as a witness. The court refused. We think this refusal was error. While it is understandable that the District Attorney might be reluctant to call an informant, and the informant might be even more reluctant to testify, those are circumstances which the jury should have been left to consider in determining whether to draw an unfavorable inference from the District Attorney’s failure to call the informant. But the jury should have been told that if they were not satisfied with the reasons for not calling her, they could draw an inference unfavorable to the People. This was after all a case in which there was no longer any problem about revealing the informant’s identity; and the informant was available, being right in the courthouse. "In the case of noncumulative testimony, the defendant cannot be deprived * * * of his right, on request, to a proper charge as to the inference which might be drawn by the jury from the failure of the prosecution to produce the witness, by the prosecution’s tender of the witness in the courtroom, to be interviewed by defense counsel and, if thereafter desired, to be called to the stand as a witness for the defense. Although in a literal sense such a witness could be said to be available to both parties, he would be expected to be favorable to the prosecution and the hostile to the defense.” (People v Brown, 34 NY2d 658, 660.) Whether the failure to give such a charge in an appropriate case requires reversal of the conviction depends on the facts of each case. In the present case, we think the evidence against the defendant was not so overwhelming as to justify us in overlooking the error. Concur—Sandler, J. P., Bloom, Markewich and Silverman, JJ.