People v. Goetz

• Decision Date: 05 June 1987
• Citation: 516 N.Y.S.2d 1007,135 Misc.2d 888
• Parties: The PEOPLE of the State of New York v. Bernhard GOETZ, Defendant.
• Court: New York Supreme Court

Page 1007

516 N.Y.S.2d 1007

135 Misc.2d 888

The PEOPLE of the State of New York v. Bernhard GOETZ, Defendant.

Supreme Court, New York County IAS Part 81.

June 5, 1987.

Robert M. Morgenthau, Dist. Atty., New York County, New York City (Gregory L. Waples, of counsel), for the People.

Slotnick & Baker, New York City (Mark Baker and Barry Ivan Slotnick, of counsel), for defendant.

STEPHEN G. CRANE, Judge:

This case presents an application, novel in New York, of the so-called missing witness inference to a situation where the witness has asserted his Fifth Amendment privilege and rendered himself unavailable. Defendant's request to deliver a missing witness charge in this circumstance is granted.

The People called Barry Allen on their direct case. Mr. Allen was one of the four youths whom defendant allegedly shot on the subway on December 22, 1984. The witness invoked his Fifth Amendment privilege, and the Assistant District Attorney refused to offer immunity to Mr. Allen. This took place outside the presence of the jury, and the jury was never informed that Mr. Allen invoked his privilege. Cf. People v. Thomas, 51 N.Y.2d 466, 434 N.Y.S.2d 941, 415 N.E.2d 931.

Although invited to do so, the defendant never called Mr. Allen. The Assistant District Attorney at one time indicated to defense counsel that if defendant were to call Mr. Allen he would offer immunity. See People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422, 409 N.E.2d 897; People v. Sapia, 41 N.Y.2d 160, 391 N.Y.S.2d 93, 359 N.E.2d 688, cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80. The court tried to make the "cheese more binding" by suggesting that defense counsel could pose leading questions to Mr. Allen and even impeach him on the basis of prior inconsistent statements and his criminal record. Cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297.

The People had already immunized Troy Canty and James Ramseur who testified before the second Grand Jury that indicted defendant for attempted murder and other serious felonies. People v. Goetz, 68 N.Y.2d 96, 102-103, 506 N.Y.S.2d 18, 497 N.E.2d 41. It was acknowledged that immunity was being withheld from Barry Allen as trial strategy, and that there was no interest in pressing criminal charges against Mr. Allen stemming from the events of December 22, 1984.

For a party to secure a missing witness charge, there must be an available, uncalled witness in a position to give material evidence that is not simply cumulative and that would naturally be expected to be favorable to the party who has failed to call him. Richardson, Evidence § 92 at 66 (10th ed, Prince).

There is no dispute that Barry Allen is in a position to give material evidence that would reasonably be expected to favor the prosecutor. After all, Mr. Allen is a complaining witness against Bernhard Goetz, the man who shot him. This evidence clearly would be noncumulative as demonstrated by Allen's pretrial statements and an interview of him and Troy Canty by The National Enquirer. It would tend to corroborate or contradict one of the contrasting versions of the incident presented by Troy Canty's testimony and defendant's statements in Concord, New Hampshire. See People v. Rodriguez, 38 N.Y.2d 95, 101, 378 N.Y.S.2d 665, 341 N.E.2d 231; People v. Aponte, 69 A.D.2d 204, 219-220, 418 N.Y.S.2d 651. In addition, Mr. Allen is physically available. He was produced from State prison on the District Attorney's application for a writ of habeas corpus ad testificandum. The District Attorney even called Mr. Allen to the stand on the People's direct case.

It is true that Mr. Allen has been subject to call by the defendant throughout this trial. But, this circumstance in no measure places Mr. Allen within the control of defendant. Where such a witness may be expected to testify favorably to the People, and adversely to defendant, he must be considered in the control of the People, even though defendant had the physical ability to call him. People v. Gonzalez, 68 N.Y.2d 424, 431, 509 N.Y.S.2d 796, 502 N.E.2d 583; cf. People v. Wilson, 64 N.Y.2d 634, 636, 485 N.Y.S.2d 40, 474 N.E.2d 248.

Once the defendant establishes a right to the missing witness charge, the burden shifts to the prosecutor to account for the absence of the witness or to demonstrate that the charge would be inappropriate. People v. Gonzalez, supra, 68 N.Y.2d at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583; Chandler v. Flynn, 111 A.D.2d 300, 301, 489 N.Y.S.2d 289, appeal dismissed, 67 N.Y.2d 647, 499 N.Y.S.2d 1032, 490 N.E.2d 559. In seeking to discharge their burden of showing that the requested charge is inappropriate, the People argue that their failure to elicit testimony from Mr. Allen is excusable because the witness invoked his privilege against self incrimination and thereby became unavailable to the prosecution. ¹ Yet, this contention is but at the threshold of the problem.

A witness who invokes the privilege against self incrimination is considered unavailable for many purposes. People v. Brown, 26 N.Y.2d 88, 94, 308 N.Y.S.2d 825, 257 N.E.2d 16 (admissions against penal interest); Richardson on Evidence §§ 258, 260; [Prince 10th ed.] Federal Rules of Evidence Rule 804 (admissibility of former testimony, of statement against interest and of statements of personal or family history). This factor may allow the prosecutor to escape a missing witness inference, if the People were to furnish a reasonable explanation for withholding immunity from Mr. Allen. State v. Dachtler, 318 N.W.2d 769, 744 (Sup.Ct.N.D.) (dictum). After all, if the cause for the unavailability of the witness is due to the failure of the People to fulfill a condition (conferral of immunity), the People may not rely on this unavailability cf. Amies v. Wesnofske, 255 N.Y. 156, 162-163, 174 N.E. 436. The assistant district attorney argues, in effect, that no such explanation can be required of the People because the conferral of immunity is a matter of prosecutorial discretion, CPL 50.30. This discretion is broad. Yet it may be reviewed for abuse. People v. Chin, 67 N.Y.2d 22, 32, 499 N.Y.S.2d 638, 490 N.E.2d 505; People v. Adams, 53 N.Y.2d 241, 247, 440 N.Y.S.2d 902, 423 N.E.2d 379; People v. Osorio, 86 A.D.2d 233, 239, 449 N.Y.S.2d 968, appeal dismissed, 57 N.Y.2d 671, 454 N.Y.S.2d 77, 439 N.E.2d 886. A frequently cited instance of abuse is presented by a case where the prosecution is built on immunized testimony, yet the defense is denied access to similarly immunized testimony. See People v. Adams, supra. By contrast, a prosecutor cannot be criticized for withholding immunity from a co-perpetrator, even if he offers to exculpate the defendant. ² The cases on which the assistant at bar relies are but examples of this proposition. See e.g., Morrison v. United States, D.C.Cir., 365 F.2d 521; United States v. Brutzman, 9th Cir., 731 F.2d 1449. Incidentally, these Federal authorities are in accord that the missing witness instruction is a matter for judicial discretion (Morrison v. United States, supra at 524) and that the prosecutor's discretion to withhold immunity is reviewable for abuse (United States v. Flomenhoft, 7th Cir., 714 F.2d 708, 713).

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