New York Law Review

Tag: missing witness instruction

  • People v. Hall, 19 N.Y.3d 126 (2012): Establishing ‘Dangerous Instrument’ Status in Robbery Cases

    People v. Hall, 19 N.Y.3d 126 (2012)

    To prove that an object is a “dangerous instrument” under New York Penal Law, the prosecution must demonstrate that, under the circumstances of its use, the object is readily capable of causing death or serious physical injury, and mere speculation about potential harm is insufficient.

    Summary

    Michael Hall and John Freeman were convicted of robbery after Hall used a stun gun on a store manager during a robbery. The New York Court of Appeals addressed whether the stun gun qualified as a “dangerous instrument” to support convictions for first-degree robbery and weapon possession. The Court held that the prosecution failed to prove the stun gun was a “dangerous instrument” because they presented insufficient evidence of its potential to cause serious physical injury. The Court affirmed the vacating of the first-degree robbery and weapon possession charges, while upholding the second-degree robbery convictions, and addressed the missing witness jury instruction.

    Facts

    Saidou Sow, a store manager, was robbed by four men, including Michael Hall and John Freeman. Hall used an object Sow described as a “toy gun” against Sow’s chest, causing a burning sensation and temporary incapacitation. Freeman directed Hall to use the device. A security camera recorded parts of the incident, showing Freeman grabbing and holding Sow while another man hit him.

    Procedural History

    Hall and Freeman were convicted of first-degree robbery, two counts of second-degree robbery, and fourth-degree criminal possession of a weapon. The Appellate Division modified the judgment by vacating the convictions for first-degree robbery and weapon possession and affirmed the remaining convictions. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the prosecution presented sufficient evidence to prove that the stun gun used in the robbery was a “dangerous instrument” under New York Penal Law § 10.00(13), thus justifying convictions for first-degree robbery and fourth-degree weapon possession.

    2. Whether the trial court erred in refusing to give a missing witness instruction regarding witnesses who were present during the robbery but not called by the prosecution.

    Holding

    1. No, because the prosecution failed to present sufficient evidence demonstrating that the stun gun was readily capable of causing death or serious physical injury as defined by Penal Law § 10.00(10).

    2. Yes, the trial court erred in refusing to give a missing witness instruction, but the error was harmless as to Freeman and unpreserved as to Hall.

    Court’s Reasoning

    The Court reasoned that to classify the stun gun as a “dangerous instrument,” the prosecution needed to prove it was “readily capable of causing death or other serious physical injury.” The Court emphasized that the only evidence presented about the stun gun’s potential for harm was Sow’s testimony, which described pain, a burning sensation, and temporary incapacitation. This, the Court stated, did not meet the statutory definition of “serious physical injury,” which requires a substantial risk of death, protracted disfigurement, or impairment of health. The Court rejected the prosecution’s argument that the jury could infer that further use of the stun gun could have caused more severe injuries, labeling it “speculation” and stating that “[m]ore proof than that is required to show that an instrument is ‘readily capable’ of causing such consequences.”

    Regarding the missing witness instruction, the Court found that the preconditions for the charge were met for Sow’s cousin, Muflhi, and Bossman, as they were eyewitnesses friendly to Sow and available to the prosecution. The Court clarified that the witnesses’ availability to the defense did not negate the validity of a missing witness instruction. However, the Court deemed the error harmless as to Freeman, given the overwhelming evidence of his participation in the robbery captured on video and his implausible defense. Hall, however, did not preserve the issue. The court said “A missing witness instruction permits the jury to draw the common-sense inference that a failure to call a seemingly friendly witness suggests some weakness in a party’s case.”

  • People v. Savinon, 100 N.Y.2d 192 (2003): Adverse Inference Instruction for Uncalled Witnesses

    People v. Savinon, 100 N.Y.2d 192 (2003)

    A “missing witness” instruction, allowing the jury to draw an unfavorable inference from a party’s failure to call a witness, is appropriate where the witness’s knowledge is material, they are expected to give noncumulative testimony favorable to the party, and they are available to that party.

    Summary

    Savinon was convicted of rape. At trial, the prosecution requested a missing witness instruction because Savinon did not call Camacho, a friend and former employee who was present during the alleged rape. Savinon argued Camacho was unavailable because he feared deportation. The trial court granted the instruction, and the jury convicted Savinon. The New York Court of Appeals affirmed, holding that the trial court did not abuse its discretion in granting the missing witness instruction because Savinon failed to demonstrate that Camacho was truly unavailable and that Camacho’s relationship with Savinon suggested he would be a favorable witness.

    Facts

    The complainant and Savinon had a relationship prior to the alleged rape. On the night in question, Savinon and Luis “Flaco” Camacho took the complainant to a club. The complainant testified that Savinon left her to dance with another woman. Feeling ill, the complainant asked to leave, but Savinon refused. Camacho then escorted her outside. Later, Savinon, Camacho, and the complainant drove off together. Savinon began making sexual advances toward the complainant, which she resisted. Savinon then raped her in the back seat of the car. Savinon demanded that Camacho also rape the complainant, but Camacho refused. Camacho later took the complainant home. At trial, Savinon testified that the sexual encounter was consensual, with Camacho nearby. Neither side called Camacho as a witness.

    Procedural History

    Savinon was arrested and indicted for rape and related crimes. At trial, the People requested an adverse inference instruction because Savinon failed to call Camacho as a witness. The trial court granted the request. The jury found Savinon guilty. The Appellate Division affirmed, and a judge of the Court of Appeals granted Savinon leave to appeal. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court improperly granted the People’s request for an adverse inference instruction against Savinon for failing to call Camacho as a witness.

    Holding

    No, because Camacho’s testimony would have been material, Camacho was likely to be a favorable witness for Savinon, and Savinon failed to establish that Camacho was unavailable.

    Court’s Reasoning

    The Court of Appeals explained that the “missing witness” instruction allows a jury to draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events. The court cited People v. Gonzalez, stating that the instruction rests on “the commonsense notion that ‘the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.’” The court then outlined the three preconditions for the missing witness instruction, established in Gonzalez: (1) the witness’s knowledge must be material to the trial; (2) the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought; and (3) the witness must be available to that party.

    The court found that Camacho’s testimony was material and noncumulative. The court then addressed the availability element, noting that a litigant should not be penalized for failing to call a witness who is unavailable. The court stated, “Though a genuine inability to locate a witness will foreclose a missing witness instruction, a witness may be readily accessible and even in the courtroom but still be unavailable within the meaning of the rule.” In this case, the court determined that Savinon failed to demonstrate that Camacho was truly unavailable. The court reasoned that Savinon only communicated Camacho’s disinclination to testify through defense counsel, and counsel failed to subpoena Camacho. As such, the court found that the trial court did not abuse its discretion in determining that Camacho could have been produced if Savinon earnestly wanted him.

    Finally, the court addressed the favorability element, noting that control “does not concern physical availability but rather the relationship between the witness and the parties.” The court stated that where there is “a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor,” the control element is satisfied. Here, the court found that Savinon and Camacho had been friends and business associates. Therefore, the trial court did not abuse its discretion in determining that the favorability element was met.

  • 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.