People v. Lyons

• Decision Date: 21 December 1992
• Citation: 609 N.E.2d 129,593 N.Y.S.2d 776,81 N.Y.2d 753
• Parties: , 609 N.E.2d 129 The PEOPLE of the State of New York, Respondent, v. Christopher LYONS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 776

593 N.Y.S.2d 776

81 N.Y.2d 753, 609 N.E.2d 129

The PEOPLE of the State of New York, Respondent, v. Christopher LYONS, Appellant.

Court of Appeals of New York.

Dec. 21, 1992.

[609 N.E.2d 130] Andrew H. Freifeld, Barry D. Leiwant, Ronald J. Tabak and Philip L. Weinstein, New York City, for appellant.

Richard A. Brown, Dist. Atty. of Queens County, Kew Gardens (Andrew J. Barovick, Tammy J. Smiley and Barbara D. Underwood, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 178 A.D.2d 492, 577 N.Y.S.2d 424, should be affirmed.

Defendant was arrested in a "buy and bust" street narcotics exchange involving a transactional undercover police officer, backup officers and a designated "arresting officer". The perpetrator was convicted of a criminal drug sale in the third degree. At trial, defense counsel requested a missing witness instruction to the jury because the designated "arresting officer" was not called to testify by the People.

The Appellate Division correctly concluded that, under the rationale of People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583, defendant did not qualify for the sought-after instruction and that it was properly rejected by the trial court. The designated "arresting officer", who recorded the undercover officer's radio description of 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" (178 A.D.2d 492, 493, 577 N.Y.S.2d 424; see, People v. Gonzalez, supra, 68 N.Y.2d at 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).

The defendant-appellant also claims that ...