73 A.D.2d 567 | N.Y. App. Div. | 1979
Lead Opinion
Judgment, Supreme Court, Bronx County, dated May 19, 1976, convicting defendant, after jury trial, of the crime of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41) and sentencing him thereon, is reversed, on the law, and a new trial ordered. Defendant was originally sentenced to an indeterminate term of imprisonment of six years to life. On November 21, 1979, in accordance with the recent amendments of the drug laws (Penal Law, § 60.09, subd b, par [ii]; L 1979, ch 410, § 3), defendant was resentenced to a term of three years to life, nunc pro tunc as of the time of the original sentence. With the consent of both sides, we consider the appeal from the judgment, as so modified. Defendant was charged with a sale of cocaine to an undercover police officer in a certain apartment on November 8, 1973. There was present at the transaction a female informant. At the trial, the informant’s identity was disclosed to defendant’s attorney and defendant’s attorney was given an opportunity to interview her, which he did. But during most of the time, even when under subpoena by the defendant, the informant remained in the District Attorney’s office. The District Attorney stated that he did not intend to call her as a witness. The defendant did not call her. The defendant requested the court to give an unfavorable inference charge (referred to as a charge of an inference favorable to defendant) because of the District Attorney’s failure to call the informant as a witness. The court refused. We think this refusal was error. While it is understandable that the District Attorney might be reluctant to call an informant, and the informant might be even more reluctant to testify, those are circumstances which the jury should have been left to consider in determining whether to draw an unfavorable inference from the District Attorney’s failure to call the informant. But the jury should have been told that if they were not satisfied with the reasons for not calling her, they could draw an inference unfavorable to the People. This was after all a case in which there was no longer any problem about revealing the informant’s identity; and the informant was available, being right in the courthouse. "In the case of noncumulative testimony, the defendant cannot be deprived * * * of his right, on request, to a proper charge as to the inference which might be drawn by the jury from the failure of the prosecution to produce the witness, by the prosecution’s tender of the witness in the courtroom, to be interviewed by defense counsel and, if thereafter desired, to be called to the stand as a witness for the defense. Although in a literal sense such a witness could be said to be available to both parties, he would be expected to be favorable to the prosecution and the hostile to the defense.” (People v Brown, 34 NY2d 658, 660.) Whether the failure to give such a charge in an appropriate case requires reversal of
Dissenting Opinion
dissents in a memorandum as follows: On November 8, 1973, at 3:30 p.m., undercover Officer Castro and two confidential informants, one female and the other male, went to 886 Beck Street to purchase cocaine. Castro and the female informant, Concetta Santiago, went to Apartment 1A where, after a 30-year-old female answered the door, Concetta introduced Castro to a male she called "Poppy” and who was later indentified by Castro as defendant. Poppy took a plastic bag containing one-half ounce of cocaine from a refrigerator and gave it to Castro in exchange for $300. After this transaction, Castro and Concetta went to Castro’s car. Castro had never met Concetta or defendant before November 8, 1973. On March 15, 1974, defendant was arrested for the November 8, 1973 cocaine sale. The undercover team did not have information concerning defendant prior to November 8, 1973, and this was the first time the confidential informants assisted the police in a purchase. The above narration of facts was presented at trial by Officer Castro and Sergeant Dunleavy of the undercover team. Defendant’s case consisted of the following: testimony from an interpreter of the Bronx District Attorney’s office to the effect that "Poppy” is a common Hispanic nickname, testimony from defendant’s employer, Mercado, a grocer, to» the effect that defendant’s hours at the place of employment were from 9:00 a.m. to 6:00 p.m. Monday through Saturday, and that defendant lived in November, 1973 at 966 Southern Boulevard. Defendant admitted that his nickname was "Poppy”, but denied, at trial, that he ever met or sold drugs to Castro. He declared that he moved to 966 Southern Boulevard in October, 1973, and produced a lease dated November 1, 1973, enclosed in an envelope postmarked December 13, 1973 for his Southern Boulevard apartment. He stated that he lived with his wife, Nilsa Mendez, and three children. The parties stipulated that as of December 12, 1973, the electric bill for Apartment 1A, 886 Beck Street, was paid by the H. R. S. Corporation and that, for about one year, mail for one Jose Mendez had been received at that apartment. Officer Castro’s identification testimony at trial was clear and unwavering. The jury convicted defendant of criminal sale of a controlled substance in the second degree and he was sentenced to a term of six years to life. On appeal, defendant argues that the prosecutor committed reversible error in compelling defendant during cross-examination to state that the undercover officer was lying, especially as defendant’s defense is based on mistaken identification. This instance of improper inquiry was brief and the trial court sustained defense counsel’s objection. Viewing this instance of error against the background of the entire record, it is clear that the error was harmless and did not rise to the stature of reversible error mandating a new trial. The key contention of defendant on appeal is that the trial court committed reversible error by refusing to grant defense counsel’s request to charge that an unfavorable inference could be drawn from the failure of the People to call to the stand the female confidential informant who witnessed the sale of cocaine to undercover Officer Castro. The People respond that since the prosecutor made this informant available to' defense counsel, the trial court acted properly when it denied defense counsel’s request for such a charge. There is no error on the trial court’s part in so refusing to charge. Prior to the People resting their case, a colloquy ensued between the court, defense counsel and the prosecutor relevant to the fact that the confidential informant Concetta Santiago was