New York Law Review

Tag: drug sale

  • People v. Kitching, 78 N.Y.2d 532 (1991): Establishing Entitlement to a Missing Witness Charge

    People v. Kitching, 78 N.Y.2d 532 (1991)

    A defendant is entitled to a missing witness charge if they make a prima facie showing that the uncalled witness possessed knowledge on a critical issue and the People fail to account for the witness’s absence or demonstrate the charge is inappropriate.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the trial court erred in refusing to give a “missing witness” charge. The defendant had demonstrated that an uncalled police officer possessed knowledge about whether the defendant sold drugs, a critical issue in the case. The prosecution failed to show that the witness lacked requisite knowledge, that the knowledge was immaterial, or that the testimony would be cumulative. The Court of Appeals also noted that the People’s argument regarding the untimeliness of the request was not preserved for review as it was not raised at trial.

    Facts

    The defendant was accused of selling drugs. A police officer was present and observed the alleged transaction. This officer was not called as a witness by the prosecution at trial. The defendant requested a “missing witness” charge, arguing the officer could provide relevant testimony about the identity of the drug seller.

    Procedural History

    The trial court refused to give the missing witness charge. The defendant was convicted. The Appellate Division reversed the conviction, finding the refusal to give the charge was reversible error. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in refusing to give a missing witness charge when the defendant made a prima facie showing that the uncalled witness possessed knowledge on a critical issue in the case.

    Holding

    Yes, because the defendant made a prima facie showing that the uncalled witness possessed knowledge on the critical issue, and the People failed to account for the witness’s absence or demonstrate that the charge would be inappropriate.

    Court’s Reasoning

    The Court of Appeals relied on its prior decision in People v. Gonzalez, 68 NY2d 424, which established the framework for determining entitlement to a missing witness charge. The Court reiterated that the defendant bears the initial burden of making a prima facie showing of entitlement. Once this showing is made, “the court must give the charge unless the People either ‘account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate’ (id., at 428).”

    The Court found that the defendant met this burden by demonstrating the uncalled officer was in a position to observe the transaction and determine whether the defendant was the drug seller. The burden then shifted to the People to demonstrate why the charge was inappropriate.

    The People could have defeated the request by showing that the missing witness did not have the requisite knowledge, that the issues about which he had knowledge were not material or relevant, or that the testimony would have been cumulative. However, the People failed to advance any of these arguments at trial. The Court explicitly stated, “Here, the evidence showed that the uncalled officer was in a position to observe the transaction and to determine whether defendant was the drug seller.”

    The Court also addressed the People’s argument, raised for the first time on appeal, that the defendant’s request was untimely. The Court held that this argument was not preserved for review because it was not raised at trial. The Court cited precedent that issues not raised at trial are not preserved for appellate review (People v Tabarez, 69 NY2d 663; People v Villani, 59 NY2d 781, 783-784).

    This case serves as a reminder to prosecutors to address missing witness charge requests directly and comprehensively at trial. Failing to do so can result in reversible error and a new trial for the defendant. For defense attorneys, this case highlights the importance of making a clear record regarding the potential testimony of the missing witness and preserving objections to the court’s ruling.

  • People v. Dumas, 68 N.Y.2d 729 (1986): Sufficiency of Misdemeanor Complaints for Drug Sales

    People v. Dumas, 68 N.Y.2d 729 (1986)

    A misdemeanor complaint charging a drug sale must contain factual allegations of an evidentiary character establishing reasonable cause to believe the defendant committed the crime, and conclusory statements are insufficient without supporting facts.

    Summary

    The New York Court of Appeals reversed the Appellate Term’s orders, reinstating the Criminal Court’s dismissal of misdemeanor complaints. The court held that the complaints were facially insufficient because they lacked evidentiary facts to support the conclusion that the substance sold was marijuana. The complaints relied on conclusory statements from an undercover officer without detailing the officer’s expertise in identifying marijuana or any representations by the defendant about the substance. The court emphasized that a misdemeanor complaint must provide sufficient facts for the court to determine whether the defendant should be held for further action and to justify the issuance of an arrest warrant.

    Facts

    An undercover police officer allegedly purchased marijuana from the defendant, Dumas. The misdemeanor complaint stated that the deponent was informed by an undercover officer that Dumas knowingly and unlawfully sold marijuana, specifically, two clear plastic bags of marijuana, for a sum of U.S. currency. A similar complaint was filed in the Fausto case.

    Procedural History

    The Criminal Court dismissed the misdemeanor complaints as facially insufficient. The Appellate Term reversed the Criminal Court’s decision. The New York Court of Appeals then reviewed the Appellate Term’s orders.

    Issue(s)

    Whether a misdemeanor complaint alleging the sale of marijuana is facially sufficient when it relies on a conclusory statement from an undercover officer without providing evidentiary facts supporting the conclusion that the substance sold was marijuana.

    Holding

    No, because the factual part of a misdemeanor complaint must allege “facts of an evidentiary character” demonstrating “reasonable cause” to believe the defendant committed the crime charged. The complaint must allow the court to determine whether the defendant should be held for further action.

    Court’s Reasoning

    The Court of Appeals found the misdemeanor complaints facially insufficient because they contained only conclusory statements that the defendant sold marijuana without providing any evidentiary facts to support that conclusion. The court noted the absence of any allegation that the police officer was an expert in identifying marijuana, referencing People v. Kenny, or any allegation that the defendant represented the substance as being marijuana. The supporting depositions, in which the undercover officer merely adopted the statements in the complaints, did not provide additional facts. The court emphasized that misdemeanor complaints must contain sufficient facts for the court to determine whether the defendant should be held for further action, especially considering that the complaint alone may serve as the basis for issuing an arrest warrant. As the court stated, the factual part of a misdemeanor complaint must allege “facts of an evidentiary character” (CPL 100.15 [3]) demonstrating “reasonable cause” to believe the defendant committed the crime charged (CPL 100.40 [4] [b]). The court distinguished this from a mere pleading defect, highlighting the importance of factual allegations for establishing reasonable cause.

  • People v. Dorta, 465 N.E.2d 356 (N.Y. 1984): Vacatur of Suppression Order by Trial Judge

    People v. Dorta, 465 N.E.2d 356 (N.Y. 1984)

    A trial judge has the discretion to vacate a suppression order made by a judge of coordinate jurisdiction when the People belatedly disclose evidence subject to discovery, and independent evidence can satisfy accomplice corroboration requirements.

    Summary

    Dorta was convicted of selling cocaine. Prior to trial, a suppression hearing was held based on the People’s representation that no evidence was seized from Dorta’s house. The suppression motion was denied as moot. Later, the People admitted this was incorrect, and evidence had been seized. The trial judge allowed testimony about the items observed, although the items themselves were suppressed. Dorta appealed, arguing the trial judge erred in allowing the testimony and that the accomplice testimony was insufficiently corroborated. The New York Court of Appeals affirmed, holding the trial judge acted within their discretion and sufficient independent evidence corroborated the accomplice testimony.

    Facts

    Robert Anderson, an undercover officer, purchased small amounts of marijuana and cocaine from Samuel Genova. Anderson sought to purchase a larger quantity, Genova contacted Edward Strahm, who agreed to sell Anderson three ounces of cocaine. Strahm and Napolitano drove to a bar where defendant Dorta arrived. Dorta shook hands with Strahm. Strahm and Napolitano returned to Anderson with a cocaine sample. Strahm later called someone he addressed as “Ronnie” (Dorta) to arrange the transaction at “Ronnie’s” house. Strahm and Anderson went to Dorta’s house, where Strahm obtained the cocaine. Police then arrested Dorta, Strahm, and others. A triple beam scale, razor blade, metal pot, and strainer were found in the basement.

    Procedural History

    Dorta was indicted for the sale of cocaine. He moved to suppress evidence, which was initially denied based on the People’s incorrect assertion that no evidence was seized. The trial judge later allowed testimony about the observed items. Dorta was convicted. The Appellate Division affirmed. Dorta appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial judge’s ruling permitting testimony about objects observed, when the objects themselves were suppressed, was an impermissible extension of People v. Young?

    2. Whether the evidence corroborating the accomplice testimony was insufficient as a matter of law?

    3. Whether it was error to deny the requested addition to the corroboration charge?

    Holding

    1. No, because the trial judge acted within their discretion to modify the suppression order based on the People’s belated disclosure.

    2. No, because the evidence sufficiently connected the defendant to the crime independent of the accomplice testimony.

    3. No, because the charge as given adequately apprised the jury of the governing law.

    Court’s Reasoning

    The court reasoned that while testimony about physical evidence observed during an illegal entry would be inadmissible, Strahm was invited into the house, and the hearing judge found Anderson’s entry lawful based on probable cause and exigent circumstances. The basis for the initial preclusion order was the People’s false representation that no evidence was seized, not a Fourth Amendment violation. The Trial Judge has broad discretion under CPL 240.70 to take “other appropriate action” when additional disclosure is made, which includes modifying a prior preclusion order. Regarding corroboration, CPL 60.22(1) requires corroborative evidence tending to connect the defendant with the commission of the offense. The court stated, “Although corroborative evidence must be truly independent, and may not draw its probative value from the accomplice testimony… it need not itself prove commission of the crime. Rather, it is sufficient if the corroborative evidence tends to connect the defendant to the crime so as to reasonably satisfy the jury that the accomplice is telling the truth.” Independent evidence corroborated that Strahm was dealing with a second person, cocaine was delivered, Dorta played an active role, and drug paraphernalia was present. The court concluded this evidence harmonized with the accomplice’s narrative. Finally, the court found the jury charge on corroboration was adequate, even if it didn’t use the defendant’s requested language.

  • People v. Roche, 45 N.Y.2d 78 (1978): Establishing Agency Defense in Drug Sales

    People v. Roche, 45 N.Y.2d 78 (1978)

    In a prosecution for the sale of a controlled substance, a defendant is entitled to a jury instruction on the agency defense if there is a reasonable view of the evidence to suggest they acted solely as the buyer’s agent, without any independent commercial interest in promoting the transaction.

    Summary

    Roche was convicted of criminal sale of a controlled substance. At trial, he requested a jury instruction on the agency defense, arguing he acted solely as the buyer’s agent. The trial court denied the request, but the Court of Appeals reversed, holding that Roche’s testimony presented a reasonable view of the evidence supporting the agency defense. The court emphasized that if Roche procured the drugs solely to accommodate a friend without any profit motive, he acted as an agent, and the jury should have been instructed accordingly. The indictment charging a sale to a specific person does not preclude an agency defense based on transferring the substance to another individual. Thus, the failure to charge agency was reversible error.

    Facts

    Undercover Officer Fargione and informant Bowe went to Roche’s apartment to buy cocaine, pre-arranged by phone calls between Roche and Bowe. According to the prosecution, Roche handed Bowe an envelope containing cocaine. Bowe took some, added flour, and gave the rest to Fargione. Fargione tried to pay Roche, but Roche directed the money to Bowe, who then gave it to Roche.

    Roche testified that Bowe repeatedly asked him to get cocaine. Roche procured one gram for $125 as a favor, making no profit and having no interest in the transaction. He gave the cocaine to Bowe, who added flour, and Bowe paid him in Fargione’s absence. Roche stated this was the first time he had ever procured cocaine for another.

    Procedural History

    Roche was convicted of criminal sale of a controlled substance in the third degree. He appealed, arguing the trial court erred in refusing to instruct the jury on the agency defense. The Appellate Division affirmed the conviction. Roche then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in refusing to instruct the jury on the agency defense, given Roche’s testimony suggesting he acted solely as an agent for the buyer.

    Holding

    Yes, because Roche’s testimony provided a reasonable view of the evidence that he acted solely to accommodate a friend (Bowe) without any commercial interest in promoting the transaction, thus entitling him to a jury instruction on the agency defense.

    Court’s Reasoning

    The Court of Appeals emphasized that the agency defense applies when a defendant acts solely as the buyer’s alter ego in procuring drugs. If there is a reasonable view of the evidence supporting the claim that the defendant acted as an instrumentality of the buyer, the court must instruct the jury on the agency defense. The court stated, “In this case, failure to grant defendant’s timely request to charge agency constitutes reversible error. Defendant’s testimony raised the question of whether he simply purchased and delivered a small quantity of drugs solely to accommodate a friend without any commercial interest in promoting the transaction — the quintessential agency relationship.”

    The court dismissed the argument that the transfer of drugs from Bowe to Fargione invalidated the agency defense, stating that under Roche’s version of the facts, these were two distinct transactions. The court also rejected the argument that the indictment charging a sale to Fargione precluded the agency defense. The court stated, “The corpus delicti of the crime charged was the transfer of a controlled substance (Penal Law, § 220.00, subd 1); the person to whom that substance was transferred was immaterial to this conviction.” The court noted that denying the agency defense in this circumstance would be “tantamount to a ruling that the transfer constituted a sale as a matter of law without putting the People to their burden of disproving an agency relationship.” The court concluded that the People cannot deprive a defendant of the agency defense by charging them with a sale to whomever ultimately obtains the drugs.

  • People v. Pena, 37 N.Y.2d 642 (1975): Informant Identity Disclosure and Alibi Defense

    People v. Pena, 37 N.Y.2d 642 (1975)

    When a defendant presents a credible alibi defense in a drug sale case, and the testimony of confidential informants would likely have a direct bearing on that alibi, the defendant is entitled to disclosure of the informants’ identities.

    Summary

    Pena was convicted of a drug sale based on the testimony of undercover agents. Pena presented an alibi defense, claiming he was not at the location of the sale. He sought to compel the prosecution to disclose the identities of confidential informants who were present during the alleged drug sale, arguing their testimony could support his alibi and challenge the agents’ identification. The court denied the motion. The Court of Appeals reversed, holding that Pena’s alibi defense and the potential relevance of the informants’ testimony entitled him to disclosure of their identities, especially given the state’s attenuated interest in continued secrecy.

    Facts

    Three undercover agents testified that they, along with two confidential informants, were present at the Hampton Manor Restaurant on May 24, 1973, where Pena allegedly made a drug sale.
    The agents identified Pena as the seller.
    Pena presented an alibi defense, offering credible witnesses to testify that he was not present at the restaurant on the evening in question.
    Pena sought disclosure of the identities of the confidential informants to support his claim of misidentification.

    Procedural History

    The trial court denied Pena’s motion to compel disclosure of the informants’ identities.
    Pena was convicted of the drug sale.
    The Appellate Division affirmed the conviction.
    Pena appealed to the New York Court of Appeals.
    The Court of Appeals reversed the Appellate Division’s order and remitted the case for a new trial.

    Issue(s)

    Whether the trial court erred in denying the defendant’s motion to compel the prosecution to disclose the identities of confidential informants when the defendant presented a credible alibi defense and the informants’ testimony could have a direct bearing on the alibi and the question of guilt or innocence.

    Holding

    Yes, because the defendant presented a credible alibi defense, and the testimony of the informants would likely have had a direct bearing on the alibi defense, and therefore on the question of guilt or innocence. Furthermore, the state’s interest in preventing disclosure was attenuated.

    Court’s Reasoning

    The Court of Appeals relied on its previous decision in People v. Goggins, stating that a defendant might become entitled to disclosure of an informant’s identity “not by showing weaknesses in the prosecution case but by the development of his defense.”
    The court emphasized that Pena, like the defendant in Goggins, presented a credible alibi defense corroborated by witnesses.
    Because the informants were present during the alleged drug sale, their testimony could directly impact the alibi defense and the identification of Pena as the seller.
    The court noted the prosecution conceded that the informants had not been active for two and a half years and that they did not even know their whereabouts. Thus, the state’s interest in preventing disclosure was diminished.
    “Even if it be assumed, as the People contend, that the defendant’s need for disclosure was below the threshold established under Goggins, disclosure, in this case, should nevertheless have been mandated.”
    The Court stated, “the defendant, having made the initial showing as to the importance of disclosure…the People should have come forward with some showing as to reasons, if any, why the names of the informants should not have been revealed.”
    The court cited Brady v. Maryland, stating if “the interest of the State in preventing disclosure was attenuated and insufficient in view of the potential impact of the informants’ testimony then surely the State should have been obliged to disclose the information sought”.

  • People v. Roche, 45 N.Y.2d 78 (1978): The Agency Defense in Drug Sales

    People v. Roche, 45 N.Y.2d 78 (1978)

    A defendant who acts solely as the agent of a buyer in a drug transaction, without a profit motive or direct interest in the sale, is not guilty of criminal sale of a controlled substance.

    Summary

    The case addresses the “agency defense” in drug sale cases, where a defendant claims to have acted solely as the buyer’s agent. Roche was convicted of criminal sale of a controlled substance. The Appellate Division reversed this conviction, holding that the trial court erred in not instructing the jury on the agency defense. The Court of Appeals affirmed, holding that a reasonable view of the evidence supported the agency defense because Roche did not initiate the drug transaction, appeared to be acting as a go-between, and did not personally profit. The court emphasized that the agency defense is applicable when the defendant acts solely on behalf of the buyer, without any independent interest in promoting the sale. However, the court affirmed Roche’s conviction for criminal possession, as agency is not a defense to possession.

    Facts

    Undercover officer Lugo befriended Roche. Lugo expressed interest in buying narcotics, and Roche indicated he could help. After Lugo repeatedly contacted Roche, they met, and Roche directed Lugo to a bar in Manhattan to “see the man” (the seller). Roche entered alone, returning to Lugo with the price: $4,000. Lugo gave Roche the money, and Roche re-entered the bar. Roche then directed Lugo to a discotheque for the drug delivery. At the discotheque, Lugo saw a man hand Roche a package, which Roche then gave to Lugo. The package contained heroin. Lugo later complained about the heroin’s quality, but Roche offered no adjustment.

    Procedural History

    Roche was indicted for criminal sale and criminal possession of a controlled substance. At trial, the court denied Roche’s request for a jury instruction on the agency defense. The jury convicted Roche. The Appellate Division modified the judgment by reversing the sale conviction and ordering a new trial on that count, while affirming the possession conviction. Both Roche and the prosecution appealed to the Court of Appeals.

    Issue(s)

    1. Whether the agency defense, where the defendant acted solely as the buyer’s agent in a drug transaction, is still valid under New York law.

    2. Whether the trial court erred in refusing to instruct the jury on the agency defense, given the evidence presented.

    3. Whether agency is a defense to criminal possession of a controlled substance.

    Holding

    1. Yes, because the Legislature has not abolished the defense, indicating its acceptance of the ameliorative judgment not to punish a person who merely facilitates a buyer’s acquisition of drugs.

    2. Yes, because a reasonable view of the evidence suggested that Roche acted as a mere instrumentality of the buyer, warranting a jury instruction on the agency defense.

    3. No, because agency is not a defense to criminal possession, as knowingly possessing the heroin, even briefly, constitutes the crime.

    Court’s Reasoning

    The court reaffirmed the validity of the agency defense, stating that one who acts solely as the procuring agent for the buyer is a principal or conspirator in the purchase rather than the sale. Since the statutes are aimed at sellers, not buyers, someone assisting only the buyer incurs no greater liability than the buyer. This defense is a common-law attempt to recognize medical and sociological aspects that complicate a defendant’s participation. The court emphasized that the agency defense requires the agent to have no direct interest in the contraband being sold and no profit motive. The court outlined factors to consider when determining agency, such as salesman-like behavior, touting the product’s quality, bargaining over price, previous acquaintance with the supplier, and whether the accused advanced their own funds. The court found that there was an issue of fact on the question of agency because Roche did not initiate the transaction, Lugo pursued him, and there was no proof of material benefit to Roche. The court stated: “so long as there is some reasonable view of the evidence that the defendant acted as a mere instrumentality of the buyer, determination of the existence of an agency relationship should be submitted to the jury with appropriate instructions”. The court emphasized that agency is not an affirmative defense but negates the “sale” element of the crime. The court distinguished between sale and possession and concluded since Roche had possessed the drugs, even briefly, agency was not a defense to the possession charge.

  • People v. Lam Lek Chong, 45 N.Y.2d 64 (1978): Limits on the Agency Defense in Drug Sales

    People v. Lam Lek Chong, 45 N.Y.2d 64 (1978)

    A defendant is not entitled to an agency defense jury instruction in a drug sale case when the defendant facilitates a large drug transaction with the expectation of receiving a substantial benefit and the buyers intend to resell the drugs.

    Summary

    Lam Lek Chong was convicted of selling heroin. At trial, he claimed he acted as an agent for undercover officers, not as a seller. The trial court instructed the jury that he could only be considered an agent if he acted “purely gratuitously.” The Court of Appeals held that while the trial court’s jury instruction was erroneous, the error was harmless because Chong was not entitled to an agency charge as a matter of law, given his involvement in a large drug sale and expectation of profiting from it. The court clarified the scope of the agency defense in drug sale cases, emphasizing that it is not available when the defendant stands to benefit substantially from the transaction.

    Facts

    Undercover officers met Chong at his travel agency, posing as narcotics dealers interested in investing in heroin. Chong introduced them to potential suppliers and discussed smuggling options. Over several months, Chong arranged meetings and negotiations for large heroin purchases, including a trip to Hong Kong that ultimately failed. Later, Chong arranged for the officers to purchase a pound and a half of heroin. He led an officer to an apartment, retrieved the drugs, and handed them over in exchange for money. Chong admitted to facilitating the drug sale but claimed he was acting as an agent for the buyers, hoping for future business loans from them.

    Procedural History

    Chong was indicted for criminal sale of a controlled substance in the first degree. At trial, he claimed to be an agent of the buyers. He was convicted. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court erred in instructing the jury that the defendant could only be considered an agent of the buyers if he acted “purely gratuitously.”

    Whether, based on the defendant’s own admissions, he was entitled to an agency defense instruction.

    Holding

    No, the trial court’s jury instruction was erroneous, but the error was harmless because the defendant was not entitled to an agency charge. Yes, because on Chong’s own testimony, a jury could not reasonably find him to be merely an agent.

    Court’s Reasoning

    The court acknowledged the “agency defense,” which states that someone acting solely as a buyer’s agent cannot be convicted of selling narcotics. This defense is rooted in interpreting the statutory definition of “sell” to align with the legislative intent of differentiating between buyers and sellers, except in the largest sales. The court clarified that the agency defense is not a complete defense but a means of determining the intermediary’s culpability. The court emphasized that it is generally a factual question for the jury to decide whether the defendant acted solely as the buyer’s agent, considering factors like the relationship between the parties, who initiated the purchase, prior drug dealings, and whether the defendant profited from the transaction.

    The court found that the trial court erred in charging that the defendant could not be an agent if he received any benefit, “however slight.” However, the court held that the error was harmless because Chong was not entitled to an agency charge. Chong admitted to arranging a large drug sale, hoping for substantial business loans from the buyers, who intended to resell the drugs. The court reasoned that “the defendant admitted that he was an intermediary between drug merchants and intended to profit, at least collaterally, from the delivery of the drugs and therefore from the commercial traffic in drugs generally.” Therefore, “on no reasonable view could a jury have found defendant to be merely an agent.”

    The court noted that because the quantity of drugs involved triggered the A-1 felony statute, the legislature intended the statute to apply literally. Anyone possessing that quantity of narcotics drugs intends to resell them and is just as culpable as the seller from whom he purchased them.

  • People v. Isaacson, 44 N.Y.2d 511 (1978): Due Process Limits on Police Conduct in Drug Sales

    People v. Isaacson, 44 N.Y.2d 511 (1978)

    Due process of law prohibits a criminal prosecution where the police conduct in inducing the crime is so egregious and deprivative as to shock the conscience and make a fair trial impossible, even if the defendant was predisposed to commit the crime.

    Summary

    The New York Court of Appeals reversed the conviction of Isaacson for selling cocaine, finding that the egregious police misconduct violated his due process rights. The police, seeking a conviction, brutally coerced an informant, deceived him about his own charges, and used him to lure Isaacson, a Pennsylvania resident, into New York under false pretenses to make a drug sale. The court held that such reprehensible conduct, including physical abuse and deception, justified barring the prosecution, even if Isaacson was predisposed to commit the crime. This case establishes that due process acts as a check on extreme police misconduct, even when entrapment is not proven.

    Facts

    J.D. Breniman was arrested for drug possession. While in custody, he was physically assaulted by a New York State Police investigator. The police failed to inform Breniman that the substance he possessed was not an illegal drug. Under the false impression that he faced a lengthy prison sentence, Breniman agreed to work as a police informant. Breniman contacted Isaacson, a Pennsylvania resident, and persistently solicited him to sell cocaine. Isaacson initially refused. Breniman lured Isaacson into New York by falsely claiming the drug transaction would occur in Pennsylvania. The police investigator orchestrated the scheme to ensure the sale occurred in New York.

    Procedural History

    Isaacson was convicted in County Court of criminal sale of a controlled substance. He raised a defense of entrapment and argued his due process rights were violated. The Appellate Division affirmed the conviction, with two justices dissenting. The New York Court of Appeals reversed the Appellate Division’s order and dismissed the indictment.

    Issue(s)

    Whether the police conduct in manufacturing the crime and luring the defendant into New York to make a drug sale was so egregious that it violated the defendant’s due process rights, requiring dismissal of the indictment, even if the defendant was predisposed to commit the crime?

    Holding

    Yes, because the police conduct, including the brutality against the informant, the deception about the informant’s charges, the persistent solicitation of the defendant, and the fraudulent inducement of the defendant into New York, was so egregious that it violated the defendant’s due process rights, requiring dismissal of the indictment.

    Court’s Reasoning

    The court reasoned that due process, under the New York State Constitution, acts as a check on police misconduct, even when a defendant is predisposed to commit a crime. The court considered several factors to determine whether the police conduct violated due process:
    1. Whether the police manufactured a crime that otherwise would not have occurred.
    2. Whether the police engaged in criminal or improper conduct repugnant to a sense of justice.
    3. Whether the defendant’s reluctance to commit the crime was overcome by appeals to humanitarian instincts or persistent solicitation.
    4. Whether the record reveals a desire to obtain a conviction with no regard for preventing further crime.

    The court found that the police manufactured the crime by exploiting a vulnerable informant, deceiving him about his charges, and manipulating the situation to lure Isaacson into New York. The court emphasized the police brutality against Breniman, the deception regarding Breniman’s charges, and the persistent solicitation of Isaacson despite his initial reluctance. The court stated, “[T]here comes a time when enough is more than enough—it is just too much.” The court concluded that the police conduct was a brazen disregard of fundamental rights and sanctioned an investigation in which the informant was maliciously used as a pawn to obtain a conviction of any individual. Quoting Justice Frankfurter from Sherman v. United States, the court affirmed that “[n]o matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society”.

  • People v. Brown, 42 N.Y.2d 465 (1977): Informant Identity Disclosure When Guilt Hinges on Their Testimony

    People v. Brown, 42 N.Y.2d 465 (1977)

    When a defendant’s guilt hinges on a specific event to which an informant was an eyewitness, the informant’s identity must be disclosed to ensure a fair trial, especially when that testimony is critical and alternative sources of evidence are unavailable.

    Summary

    The New York Court of Appeals held that the trial court properly ordered the disclosure of a confidential informant’s identity because the informant was a key witness to the alleged heroin sale, and the defendant’s guilt hinged on the informant’s account of a specific event: whether the defendant offered his hat to hold the drugs. The prosecution’s case relied heavily on this event, and the informant was present. The court emphasized that the informant’s testimony was crucial to determining the defendant’s guilt or innocence, and alternative sources for this testimony were insufficient. When the prosecution refused to disclose the informant’s identity, the indictment was properly dismissed in the interest of justice. The Court of Appeals reversed the Appellate Division’s order and reinstated the trial court’s dismissal.

    Facts

    Undercover police officers, aided by a confidential informant, arranged to buy heroin from Gregory Bruce. At the arranged meeting place, the officers found Bruce, the defendant Brown, and Bruce’s cousin. Neither Brown nor the cousin was expected. An officer testified that Brown removed his hat and held it out to Bruce, who then took a package of heroin from the hat. Bruce placed the package in his ski cap and proceeded to complete the transaction. Brown stated he was going to call a cab while Bruce finished the deal. The officers arrested Brown, Bruce, the cousin, and the informant. A key point of contention was the lack of any mention of the “hat” incident in the initial police report, only appearing in a report five weeks later.

    Procedural History

    The defendant was indicted for selling heroin. During trial, the defendant requested the identity of the informant be disclosed. The trial court initially denied the request as premature but allowed it to be renewed. After the officers testified, the defense renewed its request. The trial court directed the prosecutor to produce the informant for an in camera examination. When the prosecutor refused, the trial court dismissed the indictment in the interest of justice. The Appellate Division reversed, but the Court of Appeals reversed the Appellate Division, reinstating the trial court’s dismissal of the indictment.

    Issue(s)

    Whether the trial court erred in ordering the disclosure of the confidential informant’s identity.

    Whether the trial court erred in dismissing the indictment in the interest of justice when the prosecution refused to disclose the informant’s identity.

    Holding

    1. No, because the informant was an eyewitness to the crucial transaction, and the defendant’s guilt hinged on the informant’s testimony regarding the specific events of the alleged drug sale.

    2. No, because the prosecution’s refusal to comply with the court’s order to disclose the informant’s identity justified the dismissal in the interest of justice.

    Court’s Reasoning

    The court reasoned that the informant’s testimony was crucial because it directly related to whether the defendant actively participated in the sale. The officers’ testimony regarding the “hat” incident was the primary evidence linking the defendant to the crime. The court emphasized that “the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innocence of the accused.” While recognizing the weighty considerations against disclosing informant identities, the court balanced the defendant’s interest in a fair trial against the state’s interest in protecting informants. The court distinguished this case from others where the informant’s role was less central or where alternative sources of evidence were available. Here, the prosecutor did not demonstrate that Bruce or his cousin were truly available or reliable alternative sources of the relevant evidence. The court noted the prosecutor’s decision to abandon the case rather than disclose the informant, suggesting the informant’s identity was a closely guarded secret and the informant’s role was significant. The court concluded that disclosing the informant’s identity was essential to ensure a fair trial for the defendant. As to the dismissal in the interest of justice, the Court found that the trial court acted appropriately when the prosecution refused to comply with the order to produce the informant.

  • People v. Santiago, 41 N.Y.2d 381 (1976): Informant Disclosure and Inclusory Concurrent Counts

    41 N.Y.2d 381 (1976)

    When a defendant is convicted of both a greater offense and a lesser included offense arising from the same conduct, the conviction for the lesser offense must be dismissed.

    Summary

    Santiago was convicted of selling and possessing a dangerous drug. He argued that the informant’s identity should have been disclosed and that the possession conviction was an inclusory concurrent count of the sale conviction. The New York Court of Appeals held that the trial court properly denied disclosure of the informant’s identity after an in camera hearing. However, the Court agreed that the possession charge was a lesser included offense of the sale charge and therefore, the conviction for criminal possession must be dismissed because a defendant cannot be convicted of both selling and possessing the same drugs.

    Facts

    An undercover officer was introduced to Santiago by a confidential informant. Santiago sold the officer heroin. The officer saw Santiago twice more in the following months and later arrested him. Prior to trial, Santiago moved for the disclosure of the informant’s identity.

    Procedural History

    Santiago was convicted of third-degree criminal sale of a dangerous drug and sixth-degree criminal possession of a dangerous drug. The Appellate Division affirmed the convictions without opinion. Santiago appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred in denying the defendant’s motion to disclose the identity of the confidential informant.
    2. Whether the defendant’s conviction for criminal possession of a dangerous drug should be dismissed as an inclusory concurrent count of the criminal sale conviction.

    Holding

    1. No, because the informant’s testimony was not relevant to the defendant’s guilt or innocence.
    2. Yes, because the defendant could not have committed the criminal sale without also possessing the drug, making the possession conviction a lesser included offense.

    Court’s Reasoning

    Regarding the informant’s identity, the Court of Appeals relied on its prior holding in People v. Goggins, stating that "the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innocence of the accused." The court found that the trial court had properly determined, after an in camera examination of the informant, that the informant’s testimony would not have been relevant to Santiago’s defense. The court noted the general rule that defense counsel should have access to the record the judge bases his decision on, but upheld the conviction on the sale charge.

    Regarding the inclusory concurrent count, the Court found the District Attorney conceded that under the facts of the case, Santiago could not have sold the drugs without also possessing them. The Court applied CPL 300.30 (subd 4), defining "inclusory concurrent counts," and CPL 300.40 (subd 3, par [b]), mandating dismissal of the lesser count upon conviction of the greater. The court stated that "[a]s these counts were ‘inclusory concurrent counts’…a verdict of guilty upon the greater is deemed a dismissal of every lesser." Therefore, the conviction for criminal possession was dismissed.