People v. Williams

833 N.E.2d 695, 5 N.Y.3d 732, 800 N.Y.S.2d 360, 2005 N.Y. LEXIS 1212

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant allegedly sold two glassine envelopes of heroin to an undercover police officer during a buy-and-bust operation. The operation involved three officers—one undercover officer who purchased drugs from defendant, one undercover officer who observed the sale (the “ghost”) and an arresting officer, who did not see the drug exchange. At trial, the People presented only two witnesses. The arresting officer acknowledged that he had not seen the drug sale, nor had he seen defendant before arresting him. The purchasing officer testified that the individual from whom he bought drugs was wearing a distinctive blue and white flowered hat, but no such hat was inventoried, nor was it in defendant’s arrest photograph. Further, the police recovered neither prerecorded buy money nor any drug stash from defendant. Despite his alleged presence at the crime scene, the ghost officer did not testify.

At the charge conference, defendant requested that a portion of the judge’s proposed charge instructing jurors not to speculate about what evidence could have been presented not be given to the jury. According to defense counsel, such an instruction would “conflict with the concept that [the jurors are] to consider evidence or lack of evidence” (emphasis added). Agreeing that the instruction “might mislead the jury,” the trial judge told the parties that he would not give it.

In his summation, defense counsel argued that the People’s case was “skeletal,” pointing to the prosecution’s failure to introduce any evidence to corroborate the testimony of the single identifying witness—no prerecorded buy money, no blue and white flowered hat, no photograph of the defendant wearing the hat and, despite the alleged presence of the ghost officer at the time of the drug sale, no testimony from that second undercover. After summations, and despite his earlier ruling, the judge gave the charge to which defense counsel had objected, telling the jurors that they were not to “speculate on the whereabouts of people whose names are mentioned as having been at the alleged scene of the crime who were not called as witnesses. No one is required to come to court and testify. Don’t speculate on their non-appearance, or what they might have said if they would have come.”

We agree with the Appellate Division majority that, in the context of this case, the instruction was error, “given that the central theme of the defense at trial was that the one-witness identification was entirely uncorroborated and therefore unreliable, the effect of the court’s charge was essentially to instruct the jury not to consider the defense” (10 AD3d 213, 217 [1st Dept 2004]).

A defendant not necessarily entitled to a missing witness charge may nonetheless try to persuade the jury to draw inferences from the People’s failure to call an available witness with material, noncumulative information about the case (People v Tankleff, 84 NY2d 992, 994-995 [1994]). Defendant was entitled to argue that the jurors should consider the People’s failure to call the ghost officer to corroborate the single-witness identifica tion in support of his defense that the People’s evidence was uncorroborated and “skeletal.” For the trial court to charge the jury both that it may not consider the absence of uncalled witnesses who were mentioned as being present at the alleged crime scene effectively deprived defendant of the force of his defense and may have misled the jurors to believe that they were not permitted to draw any inferences from the absence of the ghost officer at trial. On this record, we cannot say the error was harmless (see People v Kello, 96 NY2d 740 [2001]).

Defendant additionally argues that the trial court’s sua sponte decision to allow the undercover officer to testify anonymously— despite the prosecutor’s statement that she was not making such a request—was reversible error. In light of our decision as to the jury instruction, we need not reach this issue.