People v. Tankleff, 1990 N.Y. Slip Op. 02969

A missing witness charge is warranted when a party fails to call a witness under their control who possesses material, noncumulative knowledge about a contested issue, and the requesting party only needs to show the witness was in a position to observe relevant events.

Summary

Defendant was convicted of drug-related crimes. The Court of Appeals reversed the convictions for sale and possession in the third degree due to the trial court’s improper denial of a missing witness charge request. The defense argued the prosecution failed to call a second undercover officer who allegedly observed the drug sale. The Court of Appeals held that the defendant met the initial burden for the missing witness charge because the uncalled officer was in a position to observe the transaction, and the prosecution failed to adequately explain why the officer was not called.

Facts

An undercover officer (Officer 8615) purchased crack cocaine from a man near a corner in Queens. Another undercover officer was present in the car with Officer 8615. Officer 8615 radioed a description of the seller, who was arrested. The police found drugs on the defendant but not the prerecorded buy money. At trial, Officer 8615 identified the defendant as the seller. Officer 8615 testified on cross-examination that his partner was in the car watching him, but he didn’t know if his partner could see the transaction. The prosecution did not call the partner to testify.

Procedural History

Defendant was convicted in the trial court. The Appellate Division affirmed the conviction, citing People v. Erts. The defendant appealed to the Court of Appeals, which reversed the convictions for criminal sale and criminal possession of a controlled substance in the third degree.

Issue(s)

Whether the trial court erred in denying the defendant’s request for a missing witness charge based on the prosecution’s failure to call the second undercover officer.

Holding

Yes, because the defendant made a prima facie showing that the uncalled witness possessed material knowledge about a contested issue (identity of the seller), and the prosecution failed to adequately explain why the witness was not called.

Court’s Reasoning

The Court of Appeals clarified the requirements for a missing witness charge, referencing People v. Gonzalez: The charge is appropriate when the uncalled witness has knowledge about a material issue, would naturally be expected to provide noncumulative testimony favorable to the party who did not call him, and is available to that party. The party requesting the charge must show the uncalled witness could be expected to have knowledge and testify favorably to the opposing party. The burden then shifts to the opposing party to account for the witness’s absence or demonstrate that the charge is inappropriate. The Court emphasized that the requesting party only needs to show the witness was in a position to have knowledge of the issues or to have observed the events. Here, the uncalled officer was in a position to observe the drug transaction and could have offered material testimony on the critical issue of identity. The prosecution’s argument that the witness could not have seen anything because it was dark and snowy was rejected. The Court stated, “What the witness actually saw or could have seen are the precise questions which he could have answered if he had been called to testify and which the prosecution chose to leave unanswered by not calling the witness.” Requiring the requesting party to furnish details obtainable only from the missing witness would vitiate the rule established in Gonzalez. The Court also distinguished People v. Dianda, noting that in that case, there was no evidence the uncalled witness was present at the time of the critical conversations. The court found the denial of the missing witness charge was not harmless error and ordered a new trial on the sale and possession charges, emphasizing the importance of the witness’s potential testimony regarding the identity of the seller.