People v. Dancy, 76 N.Y.2d 720 (1990)
A party seeking a missing witness charge must demonstrate that the uncalled witness is knowledgeable about a material issue, is under the opposing party’s control, and would be expected to testify favorably to that party; the opposing party must then demonstrate the witness is unavailable, not knowledgeable, or that their testimony would be cumulative.
Summary
The Court of Appeals reversed the Appellate Division’s order, holding that the trial court erred in denying the defendant’s request for a missing witness charge regarding a police informant. The defendant established a prima facie case that the informant, Pena, was knowledgeable and under the People’s control. The prosecution failed to adequately rebut this showing with conclusory remarks about Pena’s unavailability and lack of control. Because the evidence of guilt was not overwhelming and the jury’s note indicated the importance of Pena’s absence, the error was not harmless, warranting a new trial.
Facts
The defendant, Dancy, was found to have cocaine in her apartment. The police were led to Dancy by an informant, Ephraim Pena, who told them Dancy had received part of a cocaine shipment. Prior to Pena’s tip, the police were unaware of Dancy’s existence. During the trial, Dancy’s defense was that Pena planted the cocaine. Several defense witnesses testified that Pena had access to the closet where the cocaine was found. Dancy denied making a spontaneous admission to Detective Ramos about the cocaine. The defense requested a missing witness charge because the prosecution did not call Pena to testify.
Procedural History
The defendant was convicted at trial. She appealed, arguing that the trial court erred in denying her request for a missing witness charge. The Appellate Division affirmed the conviction. The defendant then appealed to the New York Court of Appeals.
Issue(s)
Whether the trial court erred in denying the defendant’s request for a missing witness charge regarding the informant, Ephraim Pena, and whether such error was harmless.
Holding
Yes, because the defendant established a prima facie case that Pena was knowledgeable and under the People’s control, which the People failed to adequately rebut. The error was not harmless because the evidence against the defendant was not overwhelming and the jury specifically inquired about Pena’s absence.
Court’s Reasoning
The Court of Appeals determined that the defendant met her initial burden of showing that Pena was knowledgeable about a material issue and was under the People’s control. The court emphasized Pena’s role in providing the initial information that led to Dancy’s arrest. The court stated, “Pena’s relationship with law enforcement officials spanned a number of years, and it was Pena who informed the police that defendant — whose existence was previously unknown to the police — had had part of a shipment of cocaine delivered to her apartment.”
The court found the prosecution’s response inadequate. The prosecutor’s claim that Pena was no longer under their control because he didn’t work for the District Attorney was insufficient. The court noted that “[c]ontrol is a ‘relative concept’ and the inquiry is directed to the relationship between the witness and the parties rather than physical availability.” The court reasoned that a witness who provided key information in the case at hand can generally be expected to give favorable testimony to the People. The prosecutor’s vague assertion that Pena was incarcerated in Texas also failed to demonstrate that he was beyond the People’s power to produce because the prosecutor had not made diligent efforts to locate Pena.
Finally, the court determined the error was not harmless, citing People v. Crimmins, 36 N.Y.2d 230, 242. The evidence of Dancy’s guilt was not overwhelming, consisting mainly of the cocaine in her apartment and a contested admission. The defense argued Pena planted the cocaine, and the jury’s note about subpoenaing Pena indicated the importance of his absence. Thus, the court concluded a properly instructed jury could have acquitted Dancy.