New York Law Review

Tag: Criminal Sale of a Controlled Substance

  • People v. Porpiglia, 71 N.Y.2d 896 (1988): Missing Witness Charge Requires Knowledge of Material Facts

    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.

  • People v. Argro, 58 N.Y.2d 816 (1983): Establishing Drug Weight in Controlled Substance Sales

    People v. Argro, 58 N.Y.2d 816 (1983)

    In a conviction for criminal sale of a controlled substance, the weight of the controlled substance must be independently proven and cannot solely rely on an offer to sell a particular quantity.

    Summary

    The New York Court of Appeals affirmed the defendant’s conviction for criminal sale of a controlled substance in the first degree, despite finding fault with the reasoning of the Appellate Division. The defendant challenged the trial court’s limitation on cross-examination of the People’s expert regarding the effect of moisture on the weight of the cocaine and argued that the mandatory minimum sentence was disproportionate. The Court of Appeals held that the weight of the controlled substance must be independently proven and cannot be based solely on an offer to sell a specific quantity, but upheld the conviction because the expert testimony established the weight independently.

    Facts

    The defendant was convicted of criminal sale of a controlled substance in the first degree. During the trial, the People’s expert testified about the laboratory analysis of the drugs. On cross-examination, defense counsel questioned the expert about the effect of moisture on the weight of the cocaine. The Appellate Division, in affirming, had incorrectly relied on the accomplice’s offer to sell “a little bit over” two ounces of cocaine as sufficient proof of weight.

    Procedural History

    The defendant was convicted at trial. The Appellate Division affirmed the conviction, but the Court of Appeals reviewed the case. The Court of Appeals affirmed the order of the Appellate Division, upholding the conviction but disagreeing with the lower court’s reasoning regarding the proof of weight.

    Issue(s)

    1. Whether the trial court erroneously limited cross-examination of the People’s expert regarding the effect of moisture on the weight of the cocaine.
    2. Whether the imposition of the mandatory minimum sentence was grossly disproportionate in the circumstances of the case.
    3. Whether the weight of the controlled substance, a necessary element of the crime, can be established solely by an offer to sell a specific quantity.

    Holding

    1. No, because defense counsel failed to properly preserve the issue for appeal by not calling the trial court’s attention to the purpose of the question or disputing the People’s claim of irrelevance.
    2. No, to the extent any constitutional objection has been preserved for review.
    3. No, because the weight of the material must be independently shown.

    Court’s Reasoning

    The Court of Appeals addressed the defendant’s arguments regarding the limitation of cross-examination and the disproportionate sentence but found them unpreserved for appellate review. Regarding the cross-examination, the Court emphasized the importance of making known one’s position to the trial court to allow for correction of any error. As for the sentence, the court cited prior precedents (People v Donovan, 59 NY2d 834; People v Broadie, 37 NY2d 100) regarding constitutional objections to sentences.

    The court explicitly rejected the Appellate Division’s reasoning that the accomplice’s offer to sell “a little bit over” two ounces of cocaine was sufficient to establish the weight for the crime of first-degree sale. Citing People v Kenny, 30 NY2d 154; People v Lawson, 84 Misc 2d 24; and People v Lam Lek Chong, 45 NY2d 64, the court clarified that while proof of an offer may establish that a sale has occurred, the weight of the material must be independently proven. The conviction was ultimately affirmed because the People’s expert testimony provided an independent basis for establishing that the cocaine weighed more than two ounces, satisfying the statutory requirement. The court stated, “While proof of an offer may in some circumstances establish that a sale has occurred (see, Penal Law § 220.00 [1]), the weight of the material must be independently shown.”