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.