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.