New York Law Review

Tag: drug sale

  • People v. Small, 28 N.Y.3d 151 (2016): Admissibility of Prior Bad Acts (Molineux Evidence) When Defendant Raises Agency Defense in Drug Sale Case

    28 N.Y.3d 151 (2016)

    When a defendant asserts an agency defense in a drug sale case, the prosecution may introduce evidence of the defendant’s prior drug sale convictions (Molineux evidence) on their direct case to establish the defendant’s intent to sell, even if the defense is based on evidence presented by the prosecution.

    Summary

    The case concerns the admissibility of prior bad acts evidence (Molineux evidence) in a drug sale case. The defendant argued an agency defense – that he was merely assisting the buyer. The trial court, after the defendant requested an agency instruction, allowed the prosecution to introduce evidence of the defendant’s prior drug sale conviction. The New York Court of Appeals affirmed, holding that when a defendant raises an agency defense, even based on the prosecution’s evidence, the prosecution may introduce Molineux evidence of prior drug sales to prove intent. The court emphasized that the trial court must first determine whether the probative value of such evidence outweighs its potential prejudice to the defendant.

    Facts

    Undercover officers observed the defendant and another individual, Barrios. Barrios gave the defendant money, after which the defendant entered a building, emerged, and gave Barrios glassine envelopes. Police arrested the pair and recovered heroin from Barrios and a small amount of money from the defendant. The defense counsel gave notice of a possible agency defense. During cross-examination, defense counsel attempted to establish that the defendant was acting as a friend to the buyer, focusing on their relationship and the small amount of money the defendant possessed. The defense did not call the buyer to testify. After the close of the People’s case, the court granted the defendant’s request for an agency instruction, after which the prosecution was permitted to introduce evidence of the defendant’s prior drug sale conviction, with the proper limiting instructions. The jury found the defendant guilty.

    Procedural History

    The trial court allowed the prosecution to introduce the Molineux evidence. The defendant was convicted. The Appellate Division affirmed the conviction, ruling the evidence was properly admitted. The New York Court of Appeals granted leave to appeal and also affirmed the conviction.

    Issue(s)

    1. Whether the trial court abused its discretion by permitting the prosecution to introduce evidence of the defendant’s prior drug sale conviction on their direct case, given that the agency defense was supported solely by inferences drawn from the prosecution’s evidence?

    Holding

    1. No, because the trial court did not abuse its discretion as the defendant raised the issue of intent by seeking the agency defense, thereby opening the door for the introduction of the prior conviction evidence.

    Court’s Reasoning

    The court explained that under New York law, a defendant is guilty of selling a controlled substance when they knowingly and unlawfully sell a narcotic drug. The agency defense holds that if the defendant acted solely as the agent of the buyer, they cannot be convicted of the crime of criminal sale of a controlled substance. The court referenced People v. Molineux, which addressed the admissibility of evidence of uncharged crimes. Such evidence is generally inadmissible to show bad character or propensity to commit a crime, but it is admissible when relevant to an issue other than criminal disposition, such as intent. The Court of Appeals found that the defendant’s actions during cross-examination of the prosecution’s witnesses and the request for an agency charge raised the issue of intent. The trial court properly exercised its discretion in allowing evidence of the prior conviction after balancing its probative value against its potential prejudice.

    The court distinguished this case from situations where intent is easily inferred from the act itself, noting that the agency defense specifically disputes the intent to sell. The court relied on its previous holding in People v. Small, where Molineux evidence was deemed admissible when the defendant raised an agency defense. The court emphasized that there is no requirement that the court rule on the admissibility of the Molineux evidence prior to trial and reiterated that the agency defense is triggered where there is some evidence, however slight, supporting the inference that the defendant was acting as an extension of the buyer.

    Practical Implications

    This case reinforces that a defendant’s decision to pursue an agency defense in a drug sale case opens the door for the prosecution to introduce evidence of the defendant’s prior drug sale convictions to establish intent, even if the defense is based on evidence presented by the prosecution. This ruling highlights that the timing of the presentation of such evidence is within the trial court’s discretion. Defense attorneys must carefully consider the implications of raising the agency defense, understanding it may result in the introduction of prior bad acts evidence, and the possible prejudice to the client. It is important to carefully assess the strength of the prosecution’s case, as well as the potential prejudicial impact of prior bad acts evidence on the jury. Prosecutors should be prepared to present such evidence and should ensure they have a proper foundation established for the prior acts and that the probative value outweighs the prejudicial effect.

  • People v. Watson, 19 N.Y.3d 252 (2012): Agency Defense Does Not Apply to Criminal Facilitation

    People v. Watson, 19 N.Y.3d 252 (2012)

    The agency defense, which can negate the “sale” element in a drug sale charge, does not extend to a charge of criminal facilitation because the facilitation statute focuses on aiding the commission of a crime, irrespective of whether the defendant acted as an agent of the buyer.

    Summary

    Tyrone Watson was charged with selling cocaine, facilitating the sale, and possessing narcotics after he assisted an undercover officer in purchasing drugs. At trial, Watson claimed he was acting as the agent of the buyer. The trial court acquitted him of the sale charge based on the agency defense but convicted him of facilitation and possession. The New York Court of Appeals held that the agency defense does not apply to criminal facilitation, emphasizing that facilitation focuses on aiding the commission of a crime and that the agency defense is only relevant to the element of “sale.” The court affirmed the conviction for criminal facilitation.

    Facts

    An undercover narcotics sergeant asked Tyrone Watson where he could find some “rock.” Watson made phone calls to locate cocaine. He then suggested they go to a specific location. The officer gave Watson $40. Watson introduced the officer to “JD Blue,” stating his companion wanted two bags of crack. Watson handed the money to Blue. Blue gave Watson the drugs, which Watson then passed to the officer. Watson was arrested and found to be in possession of cocaine and a crack pipe.

    Procedural History

    Watson was indicted for felony sale of a controlled substance, misdemeanor criminal possession of a controlled substance, and misdemeanor criminal facilitation. The trial court acquitted Watson of the sale count, applying the agency defense, but convicted him of criminal facilitation and possession. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the agency defense, successful in negating a charge of criminal sale of a controlled substance, also applies to a charge of criminal facilitation.

    Holding

    1. No, because the agency defense is specific to the “sale” element of a drug sale charge, whereas criminal facilitation focuses on aiding the commission of a crime, irrespective of the defendant’s role as an agent of the buyer.

    Court’s Reasoning

    The Court reasoned that criminal facilitation occurs when a person, believing they are aiding someone intending to commit a crime, engages in conduct that provides the means or opportunity for the commission of that crime. This statute assigns culpability to someone who knowingly aids a crime but lacks the mental culpability required for accomplice liability. The court emphasized the plain language of the statute, noting Watson brought the officer to the dealer and provided the dealer the opportunity to sell cocaine. The court stated, “the facilitation statute plainly was intended to cover the type of conduct engaged in by defendant: he brought the undercover officer to JD Blue and provided the dealer with the opportunity to intentionally sell cocaine, thereby aiding the commission of that felony.”

    The court distinguished criminal facilitation from the sale of controlled substances, noting that the agency defense is “a well-established interpretation of the statutory definition of the term ‘sell.’” Since “sale” is not an element of facilitation, the agency defense is inapplicable. Penal Law § 115.10 (3) specifically states the fact that defendant was neither an accomplice to the sale nor guilty of that crime does not provide a defense to facilitation.

    Furthermore, the Court highlighted the original purpose of the agency defense—to mitigate the harsh penalties of the Rockefeller Drug Laws by reducing a defendant’s culpability from a serious felony to a possessory offense. In Watson’s case, both facilitation and possession are misdemeanors, indicating a legislative calibration of punishment that does not necessitate the agency defense. The court added that “It would be incongruous to allow a facilitator, who clearly acts as the buyer’s conduit to the drug seller and actively participates in the consummation of the transaction, to escape all criminal liability as long as that person never touches the drugs.”

  • People v. Wright, 2 N.Y.3d 242 (2004): Admissibility of Expert Testimony on Street-Level Drug Sales

    People v. Wright, 2 N.Y.3d 242 (2004)

    Expert testimony regarding multi-member street-level narcotics operations is inadmissible when the evidence presented at trial indicates a single-person drug transaction, but the error can be harmless if there is overwhelming evidence of guilt.

    Summary

    Wright was convicted of criminal sale of a controlled substance. The prosecution introduced expert testimony on street-level narcotics operations, over Wright’s objection, even though the evidence showed Wright acted alone in the drug sale to an undercover officer. The New York Court of Appeals held that the trial court abused its discretion in admitting the expert testimony because it was irrelevant to the facts of the case, but deemed the error harmless due to overwhelming evidence of Wright’s guilt. The court emphasized that expert testimony is only appropriate when there’s evidence of a multi-person operation.

    Facts

    An undercover officer asked Wright for a “dime” (worth $10 of crack cocaine). Wright hesitated but then said, “I’ll hook you up.” The officer gave Wright $10, and Wright gave the officer a vial of crack cocaine. After the sale, the officer attempted to lead Wright to other team members, but Wright declined. The officer radioed a description of Wright to the field team. Wright was arrested nearby, and a matching vial of cocaine was found on him, but the prerecorded buy money was not. At trial, the undercover did not testify that Wright interacted with anyone else.

    Procedural History

    Wright was charged with and convicted of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. The Appellate Division affirmed the conviction. Wright appealed to the New York Court of Appeals, arguing that the trial court improperly admitted expert testimony. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court abused its discretion by allowing expert testimony on street-level narcotics transactions when the evidence presented showed a single-person drug sale.

    Holding

    Yes, because no evidence existed that the transaction at issue involved anyone other than the defendant; however, the error was harmless.

    Court’s Reasoning

    The Court of Appeals relied on People v. Brown, which held that expert testimony on street-level narcotics transactions may be appropriate to explain the intricacies of drug sales to jurors. However, Brown cautioned that such testimony isn’t proper in every drug sale case. In Brown, the undercover officer testified about interactions with multiple individuals, providing a factual basis for the expert testimony. Here, the undercover testified that Wright acted alone. “[A]verage juror is [un]aware of the specialized terminology used in the course of narcotics street sales or the intricacies of how drugs and money are shuttled about in an effort to prevent their discovery and seizure by the police.” Nevertheless, expert testimony should not be admitted when there is no indication of a multi-person operation. The Court found the error harmless because of the overwhelming evidence of Wright’s guilt. The undercover officer gave detailed testimony, made a confirmatory identification, and narcotics were recovered from Wright. The Court quoted People v. Crimmins, stating that an error is harmless when “there is no significant probability that the jury would have acquitted the defendant had it not been for the error that occurred.” The arresting officer also testified, without objection, that not finding buy money is common, because the money is quickly hidden. The chemist confirmed that the vials contained cocaine. The court emphasized that this overwhelming evidence outweighed the improper admission of expert testimony.

  • People v. Bello, 92 N.Y.2d 527 (1998): Establishing Accomplice Liability in Drug Sales

    People v. Bello, 92 N.Y.2d 527 (1998)

    To establish accomplice liability in a drug sale, the prosecution must prove that the defendant shared the intent to sell drugs and intentionally aided the principal in the commission of the crime, exhibiting calculated behavior that furthered the sale.

    Summary

    The New York Court of Appeals addressed whether the evidence presented to a grand jury was sufficient to indict Bello for criminal sale of a controlled substance based on an acting-in-concert theory. Bello, standing with Castellar, engaged in a brief conversation with an undercover officer seeking to buy crack cocaine. He asked how many bags she wanted and if she was a cop. Castellar then sold the officer a bag of crack cocaine. The Court of Appeals held that Bello’s actions in screening the buyer were sufficient to establish a prima facie case of accomplice liability, overturning the Supreme Court’s dismissal of the indictment and reinstating it. The court reasoned that Bello’s questions directly assisted in the sale, making him more than a mere information source.

    Facts

    An undercover officer approached Bello and Castellar and asked for “nicks” (street name for $5 bags of crack cocaine). Bello asked the officer how many she wanted and if she was a cop. Castellar then sold the officer a $10 bag of crack cocaine. Bello and Castellar were arrested shortly thereafter. The undercover officer identified both Bello and Castellar.

    Procedural History

    The Grand Jury indicted Bello and Castellar for criminal sale of a controlled substance in the third degree. Castellar pleaded guilty. Bello moved to dismiss the indictment, arguing insufficient evidence. The Supreme Court granted the motion. The Appellate Division reversed and reinstated the indictment. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented to the Grand Jury was legally sufficient to establish that Bello acted as an accomplice in the sale of a controlled substance.

    Holding

    Yes, because the Grand Jury could have found the evidence sufficient to establish that Bello’s participation in the drug transaction intentionally and directly assisted Castellar in consummating the sale.

    Court’s Reasoning

    The Court of Appeals reasoned that to dismiss an indictment for insufficient evidence, a reviewing court must determine whether the evidence, viewed favorably to the prosecution, would warrant a conviction. The prosecution must prove that the defendant shared the intent to sell drugs and intentionally aided the principal in the commission of the crime. The key is whether the defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise – the illegal sale of a narcotic drug.

    The court found that Bello’s questions (“how many” and “are you a cop”) demonstrated his knowledge of the object of the sale and his attempt to screen the potential buyer. This active screening assisted Castellar in deciding whether to make the sale. The court likened Bello’s behavior to that of individuals who “steer” buyers to sellers. The court emphasized that Bello’s presence was inextricably linked to the drug sale itself. "Defendant opened the door to potential buyers, screening them for hints as to their identity and interest; Castellar then closed the sale."

    The Court rejected the argument that Castellar’s actions in selling a different quantity from a different location negated Bello’s involvement. The Court stated that negotiations do not always follow a single path and that it would be inappropriate to restrict the Grand Jury’s ability to draw logical inferences. "It was only after defendant’s questions elicited information useful to enable Castellar to decide whether she wanted to make the sale that Castellar actually sold the crack cocaine to the undercover officer."

  • People v. Pimentel, 93 N.Y.2d 982 (1999): Sufficiency of Factual Allegations to Warrant a Suppression Hearing

    People v. Pimentel, 93 N.Y.2d 982 (1999)

    A defendant is entitled to a suppression hearing if their motion papers contain factual allegations that, if true, would support the grounds for suppression, especially when the defendant has limited access to information about the basis for their arrest.

    Summary

    Pimentel was arrested for selling crack cocaine. He moved to suppress evidence, specifically a beeper, arguing the police lacked a legal basis for the arrest and search. He asserted he did not sell or assist in selling drugs. The trial court denied the motion without a hearing. The New York Court of Appeals reversed, holding that Pimentel’s factual allegations, combined with limited information available to him and the People’s conclusory response, were sufficient to warrant a suppression hearing. The case was remitted for a hearing to determine if the evidence should be suppressed.

    Facts

    The arresting officer allegedly observed Pimentel accept currency from a customer and escort the customer to another individual who provided crack cocaine. Pimentel was arrested. At the time of arrest, a beeper was found on Pimentel. Pimentel asserted that he did not sell drugs or assist others in selling or possessing drugs, and that the police were either mistaken or lying about his role.

    Procedural History

    Pimentel moved to suppress the beeper. The trial court denied the motion without a hearing, concluding that Pimentel failed to raise a factual issue requiring a hearing. Pimentel was convicted of drug charges. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed and remitted the case for a suppression hearing.

    Issue(s)

    Whether the defendant’s motion papers contained sufficient factual allegations to warrant a suppression hearing regarding the beeper found on his person at the time of arrest.

    Holding

    Yes, because Pimentel denied selling drugs or assisting others in selling or possessing drugs, and this denial, considered in the context of the limited information available to him and the People’s uninformative response, was sufficient to raise a factual issue requiring a hearing.

    Court’s Reasoning

    The Court of Appeals relied on People v. Mendoza, 82 N.Y.2d 415, which established guidelines for determining whether motion papers are sufficient to warrant a suppression hearing. The Court stated that a motion may be summarily denied if “‘the sworn allegations of fact do not as a matter of law support the ground alleged’” to require suppression. The court should consider the face of the pleadings, assessed in conjunction with the context of the motion, and the defendant’s access to information. In this case, Pimentel denied participating in the drug sale. Given the “meager information” available to Pimentel (the complaint alleged he received money and escorted the purchaser), he could do little more than deny participation. The People’s response added no further factual details justifying the arrest. The Court stated that “[b]y failing to set forth the facts leading to defendant’s arrest, the People failed to render defendant’s flat denial insufficient.” The Court emphasized that Pimentel was not obligated to provide an “innocent explanation” for his conduct when the People’s assertions were largely conclusory. Therefore, the Court held that Pimentel’s allegations were sufficient to warrant a hearing, and remitted the case for that purpose.

  • People v. Starling, 85 N.Y.2d 509 (1995): Defining ‘Sale’ of Narcotics Under New York Law

    People v. Starling, 85 N.Y.2d 509 (1995)

    Under New York Penal Law, the term “sell,” concerning controlled substances, includes any transfer of a controlled substance from one person to another, even without monetary exchange or commercial benefit.

    Summary

    The New York Court of Appeals addressed whether a “handoff” of narcotics between two individuals to avoid police detection constitutes a “sale” under Penal Law § 220.00(1). The police observed Starling passing a bag of cocaine to a juvenile. Starling was charged with criminal sale and possession with intent to sell. The Court held that the transfer of drugs, even without monetary consideration, falls within the statutory definition of “sell,” which includes “give or dispose of to another.” The Court affirmed the conviction, emphasizing the legislature’s intent to encompass any form of transfer, regardless of commercial nature.

    Facts

    Police officers observed Starling handing a small paper bag to a juvenile on a street corner after observing Starling exchanging an item from the bag for what appeared to be paper currency with an unknown third party. Upon approaching Starling, he handed the bag to a juvenile. The juvenile discarded the bag, which was found to contain seven ziplock bags of cocaine. $376 was recovered from Starling during arrest.

    Procedural History

    Starling was indicted on charges of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1]). Starling moved for a trial order of dismissal, arguing the prosecution failed to prove a “sale” or intent to sell. The trial court denied the motions. The Appellate Division affirmed Starling’s conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether, under Penal Law § 220.00(1), a “handoff” of narcotics between two individuals, absent evidence of monetary exchange or other consideration, constitutes a “sale”?

    Holding

    Yes, because the statutory definition of “sell” includes “to give or dispose of to another,” encompassing any transfer of a controlled substance, regardless of whether it is commercial in nature.

    Court’s Reasoning

    The Court emphasized the broad statutory definition of “sell” in Penal Law § 220.00(1), which includes “to sell, exchange, give or dispose of to another.” This definition demonstrates the Legislature’s intent to include any form of transfer, rejecting the need for commercial elements. The Court cited People v. Lam Lek Chong, 45 NY2d 64, 72 stating that the legislative intent was to “include any form of transfer of a controlled substance from one person to another”. The court also referred to People v. Herring, 83 NY2d 780, 782, emphasizing that “a defendant may be guilty as a seller even if he does not receive any consideration for the transfer of drugs to the buyer”. The Court rejected Starling’s argument that the transfer could not be a sale because the juvenile may have jointly possessed the drugs. The Court stated that the record lacked sufficient evidence that the juvenile exercised any control over the contraband prior to the handoff. Therefore, the trial court properly declined to charge the jury on the concepts of joint, constructive and temporary possession. Regarding Starling’s claim that the court failed to comply with the notice requirements of CPL 310.30 in responding to the jury’s notes, the Court found that because the court read the content of the jury’s notes in open court prior to responding, this case was distinguishable from People v. O’Rama, 78 NY2d 270. Defense counsel was given notice of the contents of the jury notes and had knowledge of the substance of the court’s intended response and counsel’s silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable.

  • People v. Flores, 84 N.Y.2d 951 (1994): Preserving Arguments for Appeal and Lesser Included Offenses

    People v. Flores, 84 N.Y.2d 951 (1994)

    A defendant’s failure to raise a specific argument for dismissal at trial, such as the lack of evidence of a bona fide offer to sell drugs, forfeits the right to raise that argument on appeal; furthermore, a defendant is not entitled to a jury charge on a lesser included offense unless there is a reasonable view of the evidence to support a finding that the elements of the greater offense were not met.

    Summary

    The defendant was convicted on multiple counts of criminal sale of a controlled substance. The charges stemmed from a completed sale and two separate offers to sell cocaine to an undercover officer. The Appellate Division reduced some convictions due to a lack of independent weight evidence. On appeal to the New York Court of Appeals, the defendant argued that the convictions based on the offers should be reversed because the prosecution failed to prove that the offers were bona fide. He also argued he was entitled to a jury charge on a lesser-included offense for the completed sale. The Court of Appeals affirmed, holding that the defendant’s argument regarding the offers was not preserved for appeal and that no reasonable view of the evidence supported a lesser-included offense charge.

    Facts

    On March 28, 1990, the defendant sold over four ounces of cocaine to an undercover police officer for $3,700. On April 5, 1990, and May 23, 1990, the defendant offered to sell specific quantities of cocaine to the same undercover officer for agreed-upon prices; however, no exchange of money or drugs occurred on either of these latter occasions.

    Procedural History

    The defendant was indicted on five counts, including criminal sale in the first degree for the April 5 transaction and criminal sale in the second degree for the May 23 transaction. He was convicted on two counts of criminal sale of a controlled substance in the first degree (March 28 and April 5 transactions) and one count of criminal sale of a controlled substance in the second degree (May 23 transaction). The Appellate Division modified the judgment, reducing the April 5 and May 23 convictions to criminal sale in the third degree because there was no independent evidence of the drugs’ weight offered for sale. The defendant then appealed to the Court of Appeals.

    Issue(s)

    1. Whether the defendant’s argument that the prosecution failed to prove a knowing sale (i.e., bona fide offers) for the April 5 and May 23 transactions was preserved for appellate review, given that the argument raised at trial was that there were no consummated sales.
    2. Whether the trial court erred in refusing to charge the jury on the lesser included offense of criminal sale of a controlled substance in the third degree for the March 28 transaction.

    Holding

    1. No, because the argument now raised on appeal (lack of evidence of a bona fide offer to sell) was not the ground for dismissal argued at trial.
    2. No, because there was no reasonable view of the evidence that could support a finding that the weight of the drugs was less than two ounces, which is a necessary element for the lesser included offense.

    Court’s Reasoning

    Regarding the unpreserved argument, the Court noted the defendant argued at trial only that the People had not proven consummated sales. The Court reasoned that this argument was inconsistent with the argument now raised on appeal. The Court stated, “If, as defendant now asserts, the evidence was insufficient to demonstrate the mens rea element for criminal sale, it also would have been insufficient to sustain a conviction for attempt…” Because the defendant did not raise the issue of mens rea at trial, the Court deemed it unpreserved and thus not reviewable on appeal.

    Regarding the lesser included offense charge, the Court applied CPL 300.50 (1), (2) noting that a defendant is only entitled to a charge on a lesser included offense if there is a reasonable view of the evidence which could support a finding that the weight of the drugs was less than two ounces. The forensic evidence and the undercover officer’s testimony indicated that the cocaine sold on March 28 weighed over four ounces. Because there was no evidence to suggest a weight less than two ounces, the Court concluded that the defendant was not entitled to a charge on the lesser included offense.

  • People v. Herring, 83 N.Y.2d 781 (1994): Agency Defense Requires Evidence of Relationship with Buyer

    People v. Herring, 83 N.Y.2d 781 (1994)

    A defendant is entitled to an agency charge in a drug sale case only when there is a reasonable view of the evidence to support the theory that the defendant was acting solely on behalf of the buyer; mere ambiguity regarding the defendant’s connection to the seller is insufficient.

    Summary

    Herring was convicted of criminal sale and possession of a controlled substance. He requested an agency charge, arguing he acted solely as the buyer’s agent. The trial court denied this request, but the Appellate Division reversed. The Court of Appeals reversed the Appellate Division, holding that the evidence did not support an agency charge because there was no reasonable view of the evidence suggesting Herring acted solely on behalf of the buyer. The Court emphasized the necessity of demonstrating a relationship with the buyer, not simply ambiguities in the defendant’s connection to the seller, to warrant an agency charge.

    Facts

    An undercover police officer asked Herring, a stranger, if he had drugs for sale. Herring led the officer to a storefront, took money from him, and entered the building. Inside, Herring obtained four vials of cocaine from a codefendant and gave them to the officer. Herring then left the area and was later arrested. He was subsequently charged with criminal sale and criminal possession of a controlled substance.

    Procedural History

    At trial, Herring requested the court to instruct the jury on the agency defense, arguing that he was acting solely as an agent of the buyer. The trial court denied the request. The Appellate Division reversed, finding there was a factual issue regarding agency because Herring did not solicit customers and received nothing for his participation. The Court of Appeals then reversed the Appellate Division, remitting the case for consideration of the facts.

    Issue(s)

    1. Whether the evidence presented at trial was sufficient to warrant an agency charge to the jury.

    Holding

    1. No, because there was no reasonable view of the evidence to support the theory that Herring was acting solely on behalf of the buyer.

    Court’s Reasoning

    The Court of Appeals reasoned that an agency charge is only warranted when the evidence indicates a relationship with the buyer, not merely ambiguities about the defendant’s connection to the seller. The Court found that Herring’s actions, including immediately understanding the officer’s request and leading him to a nearby drug operation, were inconsistent with acting solely as the buyer’s agent. The Court noted that even if Herring received no compensation and did not solicit the sale, this did not automatically establish agency. The Court stated, “Before an agency charge is warranted, the evidence must be indicative of a relationship with the buyer not merely raise ambiguities about the defendant’s connection to the seller.” The Court emphasized that the jury could not reasonably conclude from the evidence that Herring was acting solely as an extension of the buyer. The Court also noted that Herring was convicted on an acting-in-concert theory, and the jury’s finding of guilt on that theory necessarily precluded the possibility of agency.

  • People v. Lyons, 81 N.Y.2d 753 (1993): Missing Witness Instruction When Witness Lacks Material Knowledge

    People v. Lyons, 81 N.Y.2d 753 (1993)

    A missing witness instruction is not warranted when the uncalled witness was not in a position to have knowledge of material issues or to have observed anything that would make his testimony relevant to any material issue in the case.

    Summary

    Lyons was convicted of a criminal drug sale. At trial, his counsel requested a missing witness instruction because the designated “arresting officer” was not called to testify. The New York Court of Appeals affirmed the Appellate Division’s decision, holding that Lyons was not entitled to the missing witness instruction because the arresting officer, who was a few blocks away and recorded the undercover officer’s radio description, was not in a position to have knowledge of material issues. The Court also held that an unpreserved argument regarding cross-examination of backup officers was not reviewable.

    Facts

    Lyons was arrested in a “buy and bust” operation involving an undercover officer, backup officers, and a designated “arresting officer.” The undercover officer made a purchase from Lyons. The designated arresting officer recorded the undercover officer’s radio description of Lyons and was located a few blocks away from the drug sale.

    Procedural History

    Lyons was convicted of criminal drug sale in the third degree. He appealed, arguing that the trial court erred in denying his request for a missing witness instruction and in limiting his cross-examination of backup officers. The Appellate Division affirmed the conviction. Lyons appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred in denying the defendant’s request for a missing witness instruction regarding the designated “arresting officer.”
    2. Whether the trial court erred in not allowing defense counsel to cross-examine the backup police officers concerning some identification details transmitted by radio between the team of officers.

    Holding

    1. No, because the designated “arresting officer” was not in a position to have knowledge of material issues or to have observed anything that would make his testimony relevant to any material issue in the case.
    2. No, because the defendant’s argument for allowing the cross-examination was not presented to the trial court and thus was unpreserved for review.

    Court’s Reasoning

    Regarding the missing witness instruction, the Court of Appeals relied on People v. Gonzalez, stating that the designated “arresting officer,” who recorded the undercover officer’s radio description of the defendant and “who was a few blocks away from the location of the drug sale, was not in a position to have knowledge of material issues or to have observed anything that would make his testimony relevant to any material issue in the case” (Lyons, 178 A.D.2d at 493). The court emphasized that the missing witness instruction is only appropriate when the uncalled witness possesses material information. The court reasoned that because the arresting officer’s role was limited to recording the description and being physically distant from the sale, his testimony would not have been relevant.

    Regarding the cross-examination issue, the Court stated that the defendant’s appellate argument, suggesting an alternative justification for the line of inquiry, was not raised at trial. The Court cited People v. Huertas, emphasizing that issues not raised at the trial level are generally not preserved for appellate review. The Court declined to consider the unpreserved argument.

  • People v. Tankleff, 1990 N.Y. Slip Op. 02969: Missing Witness Charge Requirements Clarified

    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.