New York Law Review

Tag: Undercover Officer

  • People v. Echevarria, Moss, and Johnson, 21 N.Y.3d 158 (2013): Public Trial Rights and Undercover Officer Testimony

    21 N.Y.3d 158 (2013)

    A trial court may close the courtroom to the public during the testimony of undercover officers if the prosecution demonstrates an overriding interest, such as officer safety, that is likely to be prejudiced by an open trial, and the closure is no broader than necessary, and the court considers reasonable alternatives to closure; however, the court need not explicitly state on the record that it considered alternatives.

    Summary

    These consolidated appeals concern courtroom closures during undercover officers’ testimony in buy-and-bust cases. The Court of Appeals held that limited closures comported with Sixth Amendment public trial principles because the officers demonstrated a specific link between their safety concerns and open-court testimony. The Court clarified that while trial courts must consider alternatives to closure, they are not always required to explicitly state this consideration on the record. One case was reversed due to an erroneous jury charge on the agency defense.

    Facts

    In Echevarria, the defendant sold crack cocaine to an undercover officer. The officer testified he remained active in the area, had pending cases, and had been threatened. In Moss, the defendant sold crack cocaine to an undercover officer who continued to work in the area after the arrest. The officer had been threatened and searched by suspects. In Johnson, the defendant sold crack cocaine to an undercover officer who remained active in the area. This officer had been threatened and physically attacked.

    Procedural History

    In all three cases, the trial courts held Hinton hearings to determine if the courtroom should be closed during the undercover officers’ testimony. All three courts ordered closure during the officers’ testimony, sometimes with exceptions for family. The Appellate Division affirmed the convictions in all cases. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the People demonstrated a sufficient likelihood of prejudice to an overriding interest to justify closing the courtroom during the testimony of the undercover officers.
    2. Whether the trial judge in each case failed to comply with the requirement that courts consider reasonable alternatives to closure.

    Holding

    1. Yes, because the officers demonstrated a specific link between their safety concerns and open-court testimony in the particular buy-and-bust case.
    2. No, because the record made no mention of alternatives but was otherwise sufficient to establish the need to close the particular proceeding, therefore it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest.

    Court’s Reasoning

    The Court relied on Waller v. Georgia, which requires the party seeking closure to advance an overriding interest likely to be prejudiced, the closure must be no broader than necessary, the trial court must consider reasonable alternatives, and it must make adequate findings to support the closure. The Court found the safety of law enforcement officers constitutes an overriding interest. However, there must be a specific link between the officer’s safety concerns and open-court testimony in the particular case.

    In Moss and Johnson, the officers demonstrated continued activity in the area of arrest, open cases, and prior threats, establishing this link.

    The Court emphasized that while trial courts must consider alternatives to closure, they need not always explicitly discuss them on the record. The Court reaffirmed its holding in People v. Ramos. Quoting Ramos, the court stated that “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” (Ramos, 90 NY2d at 503-504 [emphasis added]). The Court distinguished Presley v. Georgia, noting that in Presley, the record made clear that the trial judge’s exclusion of the public was unwarranted, and the space constraints could have been easily remedied using less intrusive measures.

  • People v. Waver, 5 N.Y.3d 748 (2005): Procedure for Anonymous Witness Testimony

    People v. Waver, 5 N.Y.3d 748 (2005)

    When the prosecution seeks to shield a witness’s identity, address, and/or occupation, a three-step inquiry is required: the prosecution must show the need for anonymity, the defense must demonstrate materiality, and the court must balance the defendant’s right to cross-examination with the witness’s interest in anonymity.

    Summary

    Waver was convicted of selling cocaine to an undercover officer. At trial, the undercover officer testified anonymously, identified only by his shield number and command. The defense argued this violated Waver’s Sixth Amendment right to confront his accuser, as the prosecution hadn’t moved to withhold the officer’s name or shown a need for anonymity. The trial court overruled the objection, stating the defense failed to demonstrate prejudice. The Court of Appeals reversed, holding that the trial court failed to follow the three-step inquiry mandated by People v. Stanard, requiring the prosecution to first demonstrate a need for the anonymity. This was reversible error because the anonymous witness’s testimony was central to the case, and the defendant’s ability to cross-examine the witness was speculative.

    Facts

    During a buy-and-bust operation, Waver allegedly sold cocaine to an undercover officer. Two other undercover officers acted as ghosts, secretly watching the transaction for the buying officer’s safety. At trial, the undercover buyer testified anonymously, only stating his shield number and command. Before cross-examination, defense counsel objected, noting the prosecution hadn’t moved to withhold the officer’s name and arguing that Waver had a constitutional right to confront his accuser.

    Procedural History

    Waver was arrested, indicted, and denied suppression. He waived a jury trial and was tried by the court. The trial court denied the defense’s application to reveal the undercover officer’s name and allowed the officer to testify anonymously. The Appellate Division affirmed the conviction, agreeing that the trial court should have required the People to show a need for anonymous testimony, but concluded that Waver’s right of confrontation had not been prejudiced. The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

    Issue(s)

    1. Whether the trial court erred in allowing an undercover officer to testify anonymously without requiring the prosecution to demonstrate a need for anonymity.
    2. Whether the failure to follow the proper procedure for anonymous witness testimony constitutes reversible error.

    Holding

    1. Yes, because the People must first demonstrate a need for anonymity before a witness’s identity can be shielded.
    2. Yes, because when the testimony of the anonymous witness is central to the People’s case and defendant’s ability to cross-examine the anonymous witness is purely speculative, failing to conduct the required three-step inquiry is not harmless error.

    Court’s Reasoning

    The Court of Appeals relied on People v. Stanard, which established a three-step process for shielding a witness’s identity. First, the prosecution must show why the witness should be excused from answering questions about their identity, address, or occupation, such as a showing that the information would harass, annoy, humiliate, or endanger the witness. Second, the defense must demonstrate the materiality of the requested information to the issue of guilt or innocence. Third, the trial court must balance the defendant’s right to cross-examination with the witness’s interest in some degree of anonymity.

    In this case, the Court found that the prosecution failed to satisfy their initial burden of showing a need for anonymity. The trial court did not undertake the sequential three-step inquiry mandated by Stanard. The Court emphasized that failing to adhere to the Stanard requirements is not harmless error when the anonymous witness’s testimony is central to the People’s case and the defendant’s ability to cross-examine is speculative. The Court stated, “Excuse may arise from a showing that the question will harass, annoy, humiliate or endanger the witness” (id. at 84). Because the procedural error directly impacted the defendant’s right to confront a key witness, reversal was required.

  • People v. Kin Kan, 90 N.Y.2d 867 (1997): Right to Public Trial and Courtroom Closure Standards

    People v. Kin Kan, 90 N.Y.2d 867 (1997)

    A trial court’s decision to close the courtroom to the public during a witness’s testimony must be based on specific findings demonstrating a substantial probability of prejudice to an overriding interest, and must be preceded by an inquiry careful enough to assure the court that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons.

    Summary

    Kin Kan was convicted of selling cocaine. The trial court closed the courtroom during an undercover officer’s testimony based on the prosecutor’s representation that the officer might still be working undercover in the area and feared for his safety. The New York Court of Appeals reversed, holding that the generalized representation was insufficient to justify closure without a more specific inquiry and factual findings by the trial court demonstrating a substantial probability of prejudice to an overriding interest. The court emphasized the importance of protecting the defendant’s Sixth Amendment right to a public trial.

    Facts

    On October 25, 1991, Kin Kan was arrested for allegedly selling cocaine to an undercover officer. At trial, the prosecutor moved to close the courtroom during the undercover officer’s testimony, citing concerns for the officer’s safety and ongoing undercover operations. Defense counsel objected, asserting Kin Kan’s right to a public trial and noting the officer’s apparent lack of concern for his safety in the courthouse hallways. Defense counsel also stated that Kin Kan’s girlfriend, who had been present throughout the proceedings, wished to attend the testimony.

    Procedural History

    The trial court granted the prosecutor’s motion to close the courtroom based solely on the prosecutor’s representations, without conducting a hearing or making specific factual findings. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

    Issue(s)

    Whether the trial court erred in closing the courtroom to the public during the undercover officer’s testimony based solely on the prosecutor’s generalized representation of potential prejudice to the officer’s safety and ongoing operations, without conducting a sufficient inquiry or making specific factual findings.

    Holding

    Yes, because the prosecutor’s generalized representation that the undercover officer continued to work in the vicinity of the arrest and feared for his safety was insufficient, without greater specificity, to establish a substantial probability of prejudice to an overriding interest; and the trial court failed to make any further inquiry of the prosecutor or articulate any factual findings to support its closure order.

    Court’s Reasoning

    The Court of Appeals relied on Waller v. Georgia, 467 U.S. 39 (1984), emphasizing that to close a courtroom, the proponent of closure must “advance an overriding interest that [wa]s likely to be prejudiced.” The trial court must ensure closure is no broader than necessary, consider alternatives, and make adequate findings. While evidentiary hearings aren’t always required (People v. Jones, 47 NY2d 409 (1979)), the court must conduct an inquiry careful enough to assure that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons. The Court found the prosecutor’s generalized representation insufficient, especially given the defense’s challenge to the officer’s claimed fear. The Court criticized the trial court’s failure to question the officer or make factual findings, deeming it an abuse of discretion, citing People v. Clemons, 78 NY2d 48; People v. Mateo, 73 NY2d 928; and People v. Cuevas, 50 NY2d 1022. The Court clarified that merely requesting a specific individual’s presence (the defendant’s girlfriend) does not constitute consent to exclude the general public. To demand that would “unfairly force defendants to choose between asserting their right to a public trial generally and their right to have specific individuals and family members attend the proceedings.” The Court distinguished this case from People v. Nieves, 90 NY2d 126 and People v. Martinez, 82 NY2d 436, noting the defendant unequivocally objected to closure before requesting his girlfriend’s presence. The key takeaway is that generalized concerns are insufficient; specific, fact-based findings are necessary to justify courtroom closure, safeguarding the defendant’s Sixth Amendment rights.

  • People v. Ramos, 90 N.Y.2d 493 (1997): Standard for Courtroom Closure During Undercover Officer Testimony

    90 N.Y.2d 493 (1997)

    To close a courtroom during an undercover officer’s testimony, the prosecution must demonstrate a substantial probability that the officer’s safety or effectiveness would be prejudiced by open-court testimony, and the closure must be no broader than necessary to protect that interest.

    Summary

    These cases address when a trial court can close the courtroom during the testimony of an undercover officer in a “buy-and-bust” drug case. The Court of Appeals held that closure is permissible only when the prosecution establishes a substantial probability that the officer’s safety or effectiveness would be compromised by open-court testimony. Further, it clarified that while the trial court must consider alternatives to closure, the defendant bears the responsibility of suggesting specific, viable alternatives if the initial closure showing is sufficient and not facially overbroad. The Court affirmed the convictions, finding the showings adequate in both cases and no alternatives proposed by the defense.

    Facts

    In People v. Ramos, undercover officers testified that they were actively working in the area where the defendant’s arrest occurred and had seen past subjects in and around the courthouse. One officer had been threatened in the past. In People v. Ayala, an undercover officer testified he was actively working in the precincts encompassing both the arrest site and the courthouse, and had been threatened previously in an unrelated case. In both cases, the officers took precautions to conceal their identities when entering the courthouse.

    Procedural History

    Both defendants were convicted of criminal sale of a controlled substance. In both cases, the trial courts granted the People’s motions to close the courtroom during the undercover officers’ testimony. The Appellate Division affirmed the convictions. The New York Court of Appeals granted leave to appeal to consider the propriety of the courtroom closures.

    Issue(s)

    1. Whether the factual showings of potential harm to active undercover witnesses were sufficient to justify courtroom closure during their testimony.

    2. Whether the trial courts erred in failing to consider, on their own and on the record, possible alternatives that were less restrictive than courtroom closure.

    Holding

    1. Yes, because the officers demonstrated a specific, articulable risk to their safety and effectiveness based on their ongoing undercover work in the immediate vicinity of the courthouse and arrest location.

    2. No, because while the trial court must consider alternatives to closure, the defendant has the responsibility to propose specific, viable alternatives if the initial closure showing is sufficient and not facially overbroad.

    Court’s Reasoning

    The Court of Appeals relied on Waller v. Georgia, which established a four-part test for courtroom closure: (1) the party seeking closure must advance an overriding interest likely to be prejudiced; (2) the closure must be no broader than necessary; (3) the trial court must consider reasonable alternatives; and (4) the court must make adequate findings to support the closure.

    The Court emphasized that a defendant’s right to a public trial is fundamental but not absolute. It reiterated its holding in People v. Martinez that a per se rule of closure for all undercover officers is impermissible; a specific link must be established between the officer’s safety concerns and open-court testimony in the particular case. “The nexus might be established, for example, by references to ‘associates of defendant or targets of investigation likely to be present in the courtroom, or to threats received.’”

    Applying these principles, the Court found the showings adequate in both cases. In Ramos, the officers testified to ongoing undercover work in the same precinct as the arrest and the courthouse, and that they had seen prior subjects in and around the courthouse. In Ayala, the officer identified specific precincts of ongoing activity. These showings, coupled with the officers’ efforts to conceal their identities, established a substantial probability of prejudice.

    Regarding alternatives to closure, the Court clarified that while Waller requires the trial court to “consider reasonable alternatives,” it does not mandate explicit consideration on the record, nor does it specify who bears the burden of suggesting alternatives. The Court held that, when the record supports closure and it is not facially overbroad, the onus is on the party opposing closure to suggest alternative procedures. The Court reasoned that placing the burden solely on trial courts would be impractical and incentivize defendants to remain silent, particularly when proposed alternatives might be prejudicial to the defendant. As no alternatives were proposed and the showings were sufficient, the Court found no error.

  • People v. Nieves, 90 N.Y.2d 426 (1997): Establishing Justification for Courtroom Closure During Undercover Testimony

    People v. Nieves, 90 N.Y.2d 426 (1997)

    Exclusion of a defendant’s family from the courtroom during an undercover officer’s testimony violates the defendant’s right to a public trial unless the prosecution demonstrates a substantial probability that the officer’s safety would be jeopardized by their presence, and the trial court makes specific findings to support the exclusion.

    Summary

    Nieves was convicted of drug charges after an undercover officer testified against him in a courtroom closed to the public, including Nieves’s wife and children. The New York Court of Appeals reversed the conviction, holding that the trial court failed to adequately justify the exclusion of Nieves’s family. The undercover officer’s general fear for his safety, without specific concerns about Nieves’s family, was insufficient. The court emphasized the importance of balancing the defendant’s right to a public trial with the need to protect witnesses, requiring a specific showing of risk related to the individuals being excluded.

    Facts

    An undercover officer purchased heroin from Nieves in Manhattan. At trial, the prosecution requested to close the courtroom to the public during the undercover officer’s testimony, citing safety concerns. The officer testified that he continued to work undercover in the area of Nieves’s arrest and feared for his safety if his identity were revealed. Nieves objected to the closure, arguing that his wife and children should be allowed to remain. A court reporter alleged Nieves’s wife spoke to a prospective juror. The trial court closed the courtroom, excluding Nieves’s wife and children; the court stating the children would not understand the concept of confidentiality.

    Procedural History

    Nieves was convicted of criminal possession and sale of a controlled substance. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s order, remanding for a new trial.

    Issue(s)

    Whether the trial court erred in closing the courtroom to the defendant’s family during the testimony of an undercover officer, thereby violating the defendant’s Sixth Amendment right to a public trial.

    Holding

    Yes, because the prosecution did not demonstrate a substantial probability that the officer’s safety would be jeopardized by the presence of the defendant’s wife and children, and the trial court did not make adequate findings to support their exclusion.

    Court’s Reasoning

    The Court of Appeals emphasized that the right to a public trial is fundamental, and courtroom closures should be rare and carefully considered. Citing Waller v. Georgia, the court reiterated the four-prong test for courtroom closures: the party seeking closure must advance an overriding interest likely to be prejudiced, the closure must be no broader than necessary, the trial court must consider reasonable alternatives, and it must make adequate findings to support the closure. The court distinguished this case from People v. Martinez, noting that in Martinez, there were no identified family members seeking to attend. Here, the trial court was aware of Nieves’s desire to have his family present.

    The court found that the undercover officer’s general fear for his safety was insufficient to justify excluding Nieves’s family, as he expressed no specific concern about them. The court stated, “the trial court’s reasons for excluding the defendant’s family must be ‘demonstrated and documented’ in the record.” The allegation that Nieves’s wife spoke to a juror was not adequately investigated and did not establish a willingness to harm a police officer. Regarding the children, the court found the trial court’s generalized concerns about their ability to maintain confidentiality insufficient without any specific inquiry into their age or understanding. The court noted the Appellate Division’s reliance on the family’s proximity to the officer’s work area was improper because this was not a part of the trial court’s reasoning. The court concluded that because the closure order was broader than necessary to protect the People’s interest, Nieves’s conviction must be reversed.

  • People v. Herring, 83 N.Y.2d 781 (1994): Agency Defense Requires Evidence of Relationship with Buyer

    People v. Herring, 83 N.Y.2d 781 (1994)

    A defendant is entitled to an agency charge in a drug sale case only when there is a reasonable view of the evidence to support the theory that the defendant was acting solely on behalf of the buyer; mere ambiguity regarding the defendant’s connection to the seller is insufficient.

    Summary

    Herring was convicted of criminal sale and possession of a controlled substance. He requested an agency charge, arguing he acted solely as the buyer’s agent. The trial court denied this request, but the Appellate Division reversed. The Court of Appeals reversed the Appellate Division, holding that the evidence did not support an agency charge because there was no reasonable view of the evidence suggesting Herring acted solely on behalf of the buyer. The Court emphasized the necessity of demonstrating a relationship with the buyer, not simply ambiguities in the defendant’s connection to the seller, to warrant an agency charge.

    Facts

    An undercover police officer asked Herring, a stranger, if he had drugs for sale. Herring led the officer to a storefront, took money from him, and entered the building. Inside, Herring obtained four vials of cocaine from a codefendant and gave them to the officer. Herring then left the area and was later arrested. He was subsequently charged with criminal sale and criminal possession of a controlled substance.

    Procedural History

    At trial, Herring requested the court to instruct the jury on the agency defense, arguing that he was acting solely as an agent of the buyer. The trial court denied the request. The Appellate Division reversed, finding there was a factual issue regarding agency because Herring did not solicit customers and received nothing for his participation. The Court of Appeals then reversed the Appellate Division, remitting the case for consideration of the facts.

    Issue(s)

    1. Whether the evidence presented at trial was sufficient to warrant an agency charge to the jury.

    Holding

    1. No, because there was no reasonable view of the evidence to support the theory that Herring was acting solely on behalf of the buyer.

    Court’s Reasoning

    The Court of Appeals reasoned that an agency charge is only warranted when the evidence indicates a relationship with the buyer, not merely ambiguities about the defendant’s connection to the seller. The Court found that Herring’s actions, including immediately understanding the officer’s request and leading him to a nearby drug operation, were inconsistent with acting solely as the buyer’s agent. The Court noted that even if Herring received no compensation and did not solicit the sale, this did not automatically establish agency. The Court stated, “Before an agency charge is warranted, the evidence must be indicative of a relationship with the buyer not merely raise ambiguities about the defendant’s connection to the seller.” The Court emphasized that the jury could not reasonably conclude from the evidence that Herring was acting solely as an extension of the buyer. The Court also noted that Herring was convicted on an acting-in-concert theory, and the jury’s finding of guilt on that theory necessarily precluded the possibility of agency.

  • People v. Montgomery, 88 N.Y.2d 923 (1996): Admissibility of Confirmatory Identifications Without a “Drive-By”

    People v. Montgomery, 88 N.Y.2d 923 (1996)

    A police station identification by an experienced undercover officer shortly after a drug purchase from the defendant can be admissible as a confirmatory identification, even without a prior “drive-by” identification, if the circumstances ensure the reliability of the identification.

    Summary

    The New York Court of Appeals affirmed the admissibility of a station house identification as confirmatory, even without a “drive-by,” because the identification occurred shortly after the undercover officer’s second face-to-face drug transaction with the defendant. An undercover officer bought cocaine from the defendant in an apartment, secured a search warrant, bought cocaine again a week later, and the backup team arrested the defendant. The officer identified the defendant at the station house through a one-way mirror less than five hours after the second purchase. The Court held that the prompt identification following the drug purchase was a proper completion of police procedure, ensuring reliability despite the absence of a drive-by identification.

    Facts

    An experienced undercover officer purchased a gram of cocaine from the defendant inside a Manhattan apartment.

    Based on this purchase, a search warrant was obtained for the premises.

    One week later, the same undercover officer returned to the apartment and bought another gram of cocaine from the defendant.

    Immediately after leaving the building, the officer radioed his backup team that the “buy had gone down.”

    The backup team arrived at the apartment within five minutes to execute the warrant and arrested the defendant and other occupants.

    The undercover officer was not present during the search or arrest.

    Later that evening, the undercover officer identified the defendant through a one-way mirror at the station house, less than five hours after the second drug purchase.

    Procedural History

    The hearing court ruled the station house identification admissible as a confirmatory procedure.

    The Appellate Division affirmed this ruling.

    The case was appealed to the New York Court of Appeals.

    Issue(s)

    Whether a police station identification can be considered a confirmatory identification and thus admissible when there was no prior “drive-by” identification to confirm that the correct individual was apprehended?

    Holding

    No, not necessarily. The absence of a “drive-by” does not automatically preclude an identification from being considered confirmatory because other circumstances can provide sufficient assurance of reliability.

    Court’s Reasoning

    The Court of Appeals agreed with the lower courts, finding the identification admissible. The court reasoned that the station house identification, occurring only hours after the officer’s second face-to-face transaction with the defendant, constituted “the ordinary and proper completion of an integral police procedure.” The Court declined to impose a per se requirement of a “drive-by” identification for police identifications to be considered confirmatory. It emphasized that courts must be vigilant in assuring the reliability of identifications that have not been shown to be free of suggestive taint. While a “drive-by” is one way to ensure reliability, it is not the only way. The Court highlighted that the search warrant was executed only minutes after the undercover officer left the apartment, which substantially reduced the risk that the wrong person would be taken into custody and the risk of a later misidentification.

    The Court acknowledged prior cases such as People v. Wharton and People v. Morales, where “drive-bys” were present. However, it clarified that those cases did not establish a rigid requirement. The key factor is the reliability of the identification, and that can be established through various means. As the court stated, the officer’s identification “constitute[d] the ordinary and proper completion of an integral police procedure.”

  • People v. Tankleff, 1990 N.Y. Slip Op. 02969: Missing Witness Charge Requirements Clarified

    People v. Tankleff, 1990 N.Y. Slip Op. 02969

    A missing witness charge is warranted when a party fails to call a witness under their control who possesses material, noncumulative knowledge about a contested issue, and the requesting party only needs to show the witness was in a position to observe relevant events.

    Summary

    Defendant was convicted of drug-related crimes. The Court of Appeals reversed the convictions for sale and possession in the third degree due to the trial court’s improper denial of a missing witness charge request. The defense argued the prosecution failed to call a second undercover officer who allegedly observed the drug sale. The Court of Appeals held that the defendant met the initial burden for the missing witness charge because the uncalled officer was in a position to observe the transaction, and the prosecution failed to adequately explain why the officer was not called.

    Facts

    An undercover officer (Officer 8615) purchased crack cocaine from a man near a corner in Queens. Another undercover officer was present in the car with Officer 8615. Officer 8615 radioed a description of the seller, who was arrested. The police found drugs on the defendant but not the prerecorded buy money. At trial, Officer 8615 identified the defendant as the seller. Officer 8615 testified on cross-examination that his partner was in the car watching him, but he didn’t know if his partner could see the transaction. The prosecution did not call the partner to testify.

    Procedural History

    Defendant was convicted in the trial court. The Appellate Division affirmed the conviction, citing People v. Erts. The defendant appealed to the Court of Appeals, which reversed the convictions for criminal sale and criminal possession of a controlled substance in the third degree.

    Issue(s)

    Whether the trial court erred in denying the defendant’s request for a missing witness charge based on the prosecution’s failure to call the second undercover officer.

    Holding

    Yes, because the defendant made a prima facie showing that the uncalled witness possessed material knowledge about a contested issue (identity of the seller), and the prosecution failed to adequately explain why the witness was not called.

    Court’s Reasoning

    The Court of Appeals clarified the requirements for a missing witness charge, referencing People v. Gonzalez: The charge is appropriate when the uncalled witness has knowledge about a material issue, would naturally be expected to provide noncumulative testimony favorable to the party who did not call him, and is available to that party. The party requesting the charge must show the uncalled witness could be expected to have knowledge and testify favorably to the opposing party. The burden then shifts to the opposing party to account for the witness’s absence or demonstrate that the charge is inappropriate. The Court emphasized that the requesting party only needs to show the witness was in a position to have knowledge of the issues or to have observed the events. Here, the uncalled officer was in a position to observe the drug transaction and could have offered material testimony on the critical issue of identity. The prosecution’s argument that the witness could not have seen anything because it was dark and snowy was rejected. The Court stated, “What the witness actually saw or could have seen are the precise questions which he could have answered if he had been called to testify and which the prosecution chose to leave unanswered by not calling the witness.” Requiring the requesting party to furnish details obtainable only from the missing witness would vitiate the rule established in Gonzalez. The Court also distinguished People v. Dianda, noting that in that case, there was no evidence the uncalled witness was present at the time of the critical conversations. The court found the denial of the missing witness charge was not harmless error and ordered a new trial on the sale and possession charges, emphasizing the importance of the witness’s potential testimony regarding the identity of the seller.

  • People v. Gordon, 76 N.Y.2d 595 (1990): CPL 710.30 Notice Requirement for Police-Arranged Identifications

    People v. Gordon, 76 N.Y.2d 595 (1990)

    When an undercover officer identifies a suspect in a police-arranged setting significantly after the initial observation, the People must provide CPL 710.30 notice to the defendant, and failure to do so requires preclusion of the identification testimony.

    Summary

    The defendant was convicted of selling a controlled substance based on the testimony of two undercover officers. Officer Smith made the initial drug purchase, and Officer Doe observed the interaction from a distance. About a month later, Officer Smith saw the suspect again and alerted Officer Doe, who identified the defendant. The People did not provide CPL 710.30 notice regarding Officer Doe’s identification. The Court of Appeals reversed the conviction, holding that the identification was police-arranged and required CPL 710.30 notice. The failure to provide such notice warranted preclusion of Officer Doe’s identification testimony, and the error was not harmless because the remaining evidence depended largely on Officer Smith’s identification made almost a month after the incident.

    Facts

    On October 21, 1986, Officer Smith attempted to buy crack cocaine from a man at a location under investigation. Officer Doe observed the transaction from 50-75 feet away.
    Officer Smith radioed a description of the seller to a backup unit, but the suspect had left by the time they arrived.
    On November 18, 1986, Officer Smith saw the suspect again during another operation. He radioed Officer Doe, who identified the defendant as the person she had seen with Officer Smith on October 21.
    Defendant was arrested.

    Procedural History

    The defendant was convicted of criminal sale of a controlled substance in the third degree.
    The Appellate Division rejected the defendant’s argument that CPL 710.30 had been violated, relying on People v. Gissendanner and People v. Wharton.
    The Court of Appeals reversed the Appellate Division’s order, granted the motion to suppress identification testimony, and ordered a new trial.

    Issue(s)

    Whether Officer Doe’s identification of the defendant on November 18 constituted a “previous identification” within the meaning of CPL 710.30, requiring the People to provide notice to the defendant.
    Whether the failure to provide CPL 710.30 notice was a harmless error.

    Holding

    1. No, because the identification was police-arranged, it required CPL 710.30 notice, and the People failed to provide it.
    2. No, because the remaining evidence against the defendant, primarily Officer Smith’s testimony, was not so overwhelming as to render the error harmless.

    Court’s Reasoning

    The Court reasoned that CPL 710.30 requires notice when a witness who has previously identified the defendant will testify about an observation of the defendant related to the case. The purpose of the statute is to allow the defendant to challenge the reliability of identification testimony before trial.

    The Court rejected the People’s argument that Officer Doe’s identification was a chance encounter, noting that Officer Doe was directed to the defendant’s location by Officer Smith, making it a police-arranged identification.

    The Court distinguished this case from People v. Gissendanner, which held that CPL 710.30 does not apply when the defendant’s identity is not in issue or the parties know each other. Here, Officer Doe’s brief observation of the defendant from a distance did not make the defendant “known to” her in the way contemplated by Gissendanner. The court quoted People v. Collins, noting that “in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification.”

    The Court also distinguished this case from People v. Wharton, where a confirmatory identification made shortly after a “buy and bust” operation did not require a Wade hearing. The significant lapse of time (four weeks) between Officer Doe’s initial observation and the later identification meant that it lacked the same assurances of reliability as the identification in Wharton.

    The Court found that the failure to provide CPL 710.30 notice was not harmless error because the People’s case depended heavily on Officer Smith’s testimony, which was based on an identification made almost a month after the incident. Officer Doe’s testimony “tended to significantly bolster the testimony of Officer Smith,” and therefore could have influenced the jury’s assessment of Officer Smith’s reliability.

  • People v. Muriell, 68 N.Y.2d 294 (1986): Probable Cause Based on Undercover Officer’s Report

    People v. Muriell, 68 N.Y.2d 294 (1986)

    Probable cause for an arrest can be established by the arresting officer’s testimony regarding information received from an undercover officer who personally witnessed the crime, without requiring the undercover officer to testify at the suppression hearing, unless the defense raises specific issues necessitating the undercover officer’s testimony.

    Summary

    Muriell was arrested for selling drugs to an undercover officer. At the suppression hearing, the arresting officer testified that the undercover officer radioed him with a description of the seller, the vehicle he entered, and the location of the stash. The trial court suppressed the evidence, requiring the undercover officer’s testimony to establish probable cause. The Court of Appeals reversed, holding that the arresting officer’s testimony about the undercover officer’s firsthand observations was sufficient to establish probable cause unless the defense presents specific challenges that necessitate the undercover officer’s presence. This decision distinguishes situations where the sending officer’s knowledge is based on unknown or unreliable sources.

    Facts

    A New York City police narcotics team conducted a “buy and bust” operation. An undercover officer purchased heroin from Muriell. The undercover officer radioed Detective McCarthy, a backup officer, describing Muriell (male white, approximately 25, six feet, 150 pounds, blue jacket, black pants), the black Ford vehicle Muriell entered with its license plate number, and that “the stash was in the trunk”. Detective McCarthy followed the vehicle, arrested Muriell, and searched him and the trunk. He found previously reported “buy money” in Muriell’s pocket and heroin in the trunk.

    Procedural History

    Muriell was indicted for criminal possession and sale of a controlled substance and moved to suppress the evidence. The trial court initially denied the motion. Upon reargument, the trial court granted the motion to suppress, citing Appellate Division precedent requiring the undercover officer’s testimony. The Appellate Division affirmed. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the People, as a matter of law, failed to meet their burden of showing probable cause for the arrest when the arresting officer testified that he relied on information from an undercover police officer who reported that he had just purchased drugs from the defendant, without the undercover officer also testifying.

    Holding

    No, because when an arresting officer relies on information from another officer who personally witnessed the crime, that testimony, if credited, establishes probable cause for the arrest. The People do not need to produce the undercover officer to support a finding of probable cause unless substantial issues are raised regarding the validity of the arrest, which the undercover officer’s testimony would help resolve.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Lypka and People v. Havelka, where the sending officer’s information was based on unknown or unreliable sources. Here, the undercover officer personally witnessed the crime. Quoting United States v. Ventresca, the court stated, “Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.” The court reasoned that a per se rule requiring the undercover officer’s testimony in every case is unwarranted and could jeopardize the officer or ongoing investigations. The defendant is free to cross-examine the arresting officer and present evidence to challenge probable cause. However, absent a specific showing that raises substantial questions about the legality of the arrest, requiring the People to produce the undercover officer is unnecessary and potentially harmful. The court emphasized a flexible rule to balance the defendant’s interests with the practical needs of “buy and bust” operations. The Court stated that the defendant is not barred from challenging the arrest as “defendant is always free to cross-examine the arresting officer and any other witnesses produced by the prosecution and may, of course, call his own witnesses or testify on his own behalf with respect to his conduct prior to the arrest.”