People v. Porpiglia, 71 N.Y.2d 896 (1988)
A missing witness charge is warranted only when the uncalled witness possesses knowledge about a material issue in the case and would be expected to testify favorably to the opposing party.
Summary
Defendant Porpiglia was convicted of criminal sale of a controlled substance. He argued that the trial court erred in refusing to give a missing witness charge regarding a police informant who was present at the scene of the crime. The New York Court of Appeals affirmed the conviction, holding that the defendant failed to establish that the informant possessed knowledge about the critical conversations and observations relevant to the defendant’s agency defense. Thus, the defendant did not meet his burden to justify the missing witness charge.
Facts
State Trooper Jones, acting undercover, met Porpiglia at a tavern. Jones suggested to Porpiglia that he needed cocaine to go with his beer. Conflicting testimony arose as to whether Porpiglia readily offered to obtain cocaine for Jones or whether Jones badgered him into finding a source. Porpiglia ultimately led Jones to a house where Jones purchased cocaine. A police informant was with Jones at the tavern and accompanied Jones and Porpiglia to the location where the drugs were purchased.
Procedural History
Porpiglia was convicted of criminal sale of a controlled substance in the third degree. At trial, Porpiglia raised the defense of agency, arguing he was merely acting on behalf of Jones in procuring the cocaine. Porpiglia requested a missing witness charge, arguing the jury should infer that the informant’s testimony would be unfavorable to the prosecution because the prosecution failed to call the informant as a witness. The trial court refused to give the charge. The Appellate Division affirmed. The New York Court of Appeals affirmed the Appellate Division’s order.
Issue(s)
Whether the trial court erred in refusing to give a missing witness charge to the jury regarding the police informant who was present at the scene of the drug transaction.
Holding
No, because the defendant failed to establish that the informant possessed knowledge about the material facts of the case relevant to the defendant’s agency defense. Specifically, there was no evidence the informant overheard critical conversations between Jones and Porpiglia.
Court’s Reasoning
The Court of Appeals applied the established rule that a missing witness charge is appropriate when a party has peculiar power to produce a witness whose testimony would elucidate the transaction, and the party fails to do so. The court cited People v. Gonzalez, stating that the defendant seeking the charge must show that there is an uncalled witness knowledgeable about a material issue and that the witness would be expected to testify favorably to the opposing party. The court found Porpiglia failed to meet this burden. The court emphasized that the sole issue at trial was whether Porpiglia acted as an agent for Jones. While the informant was present at the tavern and accompanied Jones and Porpiglia to the location where the drugs were purchased, there was no evidence establishing that the informant was present during critical conversations concerning cocaine, such that he would have heard them or observed Porpiglia’s reactions and behavior. “Absent some foundation connecting the informant to the circumstances relevant to defendant’s agency defense, defendant has failed to sustain his initial burden, and the trial court properly denied the requested charge.” The court distinguished the case from situations where the missing witness directly observed the relevant events. The court reasoned that, without evidence of the informant’s knowledge of the specific interactions related to the drug purchase, the missing witness charge was not warranted. The court effectively requires a specific showing of the witness’s awareness of the events that form the basis of the claim or defense. The court also noted it considered defendant’s remaining contentions and found them to be without merit.