5 N.Y.3d 732 (2005)

A trial court errs when it instructs a jury not to speculate about the absence of potential witnesses if the defense strategy hinges on highlighting the prosecution’s failure to corroborate evidence.

Summary

Defendant was convicted of selling heroin to an undercover officer. At trial, the prosecution presented the purchasing officer and the arresting officer, but not the “ghost” officer who allegedly witnessed the sale. The defense argued that the prosecution’s case was weak due to the lack of corroborating evidence, particularly the missing testimony of the ghost officer. The trial court initially agreed not to instruct the jury against speculating about missing witnesses but then gave the instruction anyway. The Court of Appeals held that this instruction was prejudicial error because it undermined the core of the defense strategy, which was to emphasize the lack of corroboration. The conviction was reversed.

Facts

An undercover officer allegedly purchased heroin from the defendant during a buy-and-bust operation.
Another undercover officer (the “ghost” officer) allegedly observed the sale.
The arresting officer did not witness the sale or recognize the defendant prior to the arrest.
The purchasing officer testified that the seller wore a distinctive hat, but no such hat was found on the defendant or inventoried.
The police did not recover the prerecorded buy money or any additional drugs from the defendant.
The “ghost” officer did not testify at trial.

Procedural History

Defendant was convicted of drug charges in the trial court.
The Appellate Division reversed the conviction, finding that the trial court erred in its jury instruction regarding missing witnesses.
The People appealed to the New York Court of Appeals.

Issue(s)

Whether the trial court committed reversible error by instructing the jury not to speculate about the absence of uncalled witnesses, when the defense strategy centered on the prosecution’s failure to corroborate the identification of the defendant.

Holding

Yes, because the instruction effectively directed the jury to disregard the defendant’s argument that the prosecution’s case was weak due to a lack of corroborating evidence. The failure to call the ‘ghost’ officer was central to the defense strategy.

Court’s Reasoning

The Court reasoned that while a defendant is not automatically entitled to a missing witness charge, they are permitted to argue that the jury should draw inferences from the prosecution’s failure to call available witnesses with material, noncumulative information.
The Court emphasized that the defense strategy focused on the lack of corroboration for the single-witness identification. By instructing the jury not to speculate about the absence of the “ghost” officer, the trial court effectively deprived the defendant of the force of this defense.
The Court stated, “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.”
Because the Court could not determine that the error was harmless, the conviction was reversed.
Judge R.S. Smith concurred in the result, but disagreed with the majority’s reasoning on the jury instruction issue. Instead, Judge Smith argued that the trial court erred by allowing the undercover officer to testify anonymously sua sponte, violating the defendant’s right to confrontation as established in People v. Stanard, 42 N.Y.2d 74 (1977).
Judge Smith emphasized that under Stanard, a witness may only be permitted to remain anonymous if the prosecution demonstrates a legitimate reason, such as potential harassment or endangerment, and the court balances the defendant’s right to cross-examination with the witness’s interest in anonymity.