New York Law Review

Tag: Eyewitness

  • People v. Brown, 34 N.Y.2d 658 (1974): Inference from Failure to Call Witness

    People v. Brown, 34 N.Y.2d 658 (1974)

    When a witness is readily available to the prosecution, acted jointly with a testifying witness, and would presumably be an eyewitness, it is better practice to call that witness; if not, the defendant has the right to comment on the failure to produce the witness and request a charge as to the inference the jury might draw.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that while it is better practice for the prosecution to call all available eyewitnesses, the defendant’s rights were not violated in this case because the defense withdrew its request to comment on the prosecution’s failure to call a particular witness. The Court emphasized the importance of calling witnesses who acted jointly with testifying witnesses and were presumably eyewitnesses. However, because the defense modified and withdrew its request, the issue wasn’t preserved for appeal.

    Facts

    Patrolman Piller testified against the defendant, forming the basis of the prosecution’s case. Another police officer, Officer Rothstein, acted jointly with Patrolman Piller during the events in question and was presumably an eyewitness. The prosecution did not call Officer Rothstein to testify.

    Procedural History

    The defendant was convicted at trial. The Appellate Division affirmed the conviction. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether the defendant was deprived of his right to comment on the prosecution’s failure to produce Officer Rothstein, or of his right to a charge as to the inference which might be drawn by the jury from such failure, when the prosecution offered the witness for the defense to interview and call if desired.

    Holding

    No, because the defense withdrew its request to comment on the prosecution’s failure to call Officer Rothstein, and did not request a charge as to any inference arising from that failure. Thus, the questions of whether the defendant was deprived of his rights were not preserved for review.

    Court’s Reasoning

    The Court stated that when another officer acted jointly with a testifying officer and was presumably an eyewitness, “better practice would have been to have put him on the stand as well.” The Court acknowledged that the testimony of the second officer would not necessarily be cumulative or trivial. The court emphasized that a defendant cannot be deprived of his right to comment on the failure of the prosecution to produce a witness or of his right to a jury charge regarding inferences if the prosecution simply offers the witness to the defense for interview and potential testimony. The Court reasoned that such a witness would likely be favorable to the prosecution and hostile to the defense. However, the Court found that the defense withdrew and substantially modified its request to comment on the prosecution’s failure to call Officer Rothstein. Because of this withdrawal, and because the defense did not request a jury charge on the matter, the issue was not preserved for appellate review. Therefore, the Court affirmed the Appellate Division’s order.

  • People v. White, 26 N.Y.2d 276 (1970): When an Eyewitness is Considered an Accomplice Requiring Corroboration

    People v. White, 26 N.Y.2d 276 (1970)

    A witness is considered an accomplice, requiring corroboration of their testimony, only if they participated in the preparation or perpetration of the crime with the intent to assist, or if they counseled, induced, or encouraged the crime.

    Summary

    Michael White appealed his conviction for robbery, grand larceny, and assault, arguing that the trial court erred by not instructing the jury that Ariel Alexis Slowe, a witness, might be an accomplice. White contended that if Slowe was an accomplice, her testimony would require corroboration. The Court of Appeals affirmed White’s conviction, holding that there was no evidence to suggest Slowe was an accomplice. Her mere presence and asking the victim for carfare did not demonstrate participation or intent to assist in the crime.

    Facts

    William Lance, the victim, was attacked and robbed near a subway station. Prior to the attack, Ariel Alexis Slowe asked Lance for carfare, which he provided. They walked to the subway station together. Three men then attacked Lance. Police arrested William Leroy White at the scene. Michael White (the appellant) and another defendant were arrested later based on information from Slowe. Neither the officers nor Lance could identify Michael White as one of the attackers at trial. Slowe testified that she knew the defendants and was present during the attack, even telling the assailants to leave Lance alone. A defense witness testified that Slowe was seen drinking with the codefendants earlier that day.

    Procedural History

    Michael White, William Leroy White, and William Wallace Brown were convicted in a jury trial of robbery in the first degree, grand larceny in the first degree, and assault in the second degree. White appealed, arguing that the trial court erred in refusing to instruct the jury that Slowe might be an accomplice whose testimony required corroboration. The New York Court of Appeals affirmed the judgment of conviction.

    Issue(s)

    Whether the trial court erred in refusing to instruct the jury that Ariel Alexis Slowe might be an accomplice, requiring corroboration of her testimony to convict the defendant.

    Holding

    No, because there was no evidence presented at trial to support a finding that Ariel Alexis Slowe was an accomplice to the crime.

    Court’s Reasoning

    The court reasoned that the test for whether a witness is an accomplice is whether they could be indicted as a principal. This requires a showing that the witness participated in the preparation or perpetration of the crime with the intent to assist, or that the witness counseled, induced, or encouraged the crime. The court found no evidence in the record to suggest that Slowe was an accomplice. Her presence on the street, asking for carfare, and acquaintance with the perpetrators did not establish participation or intent to aid in the crime. The court emphasized that the token was borrowed a block away from the subway station and the victim was in no way distracted or misled by her for any purpose connected with the crime.

    The court stated, “Her mere presence on a public street alone or her borrowing of a token from the victim would not have allowed the jury to infer that she participated in the commission of the crime.” It further explained that the victim was not lured into a deserted area and there was no indication she forced him to go to the station. The fact that she knew the perpetrators was not probative of her involvement or intent to aid in the crime. To hold otherwise, the court reasoned, would require an accomplice charge whenever any eyewitness testified against the defendant. The court concluded that, as a matter of law, Slowe was not an accomplice.