People v. Muhammed

• Decision Date: 15 July 1981
• Citation: 441 N.Y.S.2d 591,109 Misc.2d 1042
• Parties: The PEOPLE of the State of New York v. Hakim MUHAMMED, Defendant.
• Court: New York Supreme Court

Page 591

441 N.Y.S.2d 591

109 Misc.2d 1042

The PEOPLE of the State of New York v. Hakim MUHAMMED, Defendant.

Supreme Court, Trial Term New York County, Part 92.

July 15, 1981.

Robert M. Morgenthau, Dist. Atty., New York County (James R. Stevens, Asst. Dist. Atty., of counsel), for the People.

Caesar Cirigliano, The Legal Aid Soc., New York City (Lloyd Epstein, New York City, of counsel), for defendant.

PATRICK W. McGINLEY, Justice:

The defendant, Hakim Muhammed, was charged with two counts of assault in the second degree occurring during an incident on 42nd Street and Eighth Avenue on October 15, 1979.

New York City Police Officer Robert Westervelt approached the defendant after observing him standing over an elderly man who was lying on the ground. In order to investigate, the officer directed the defendant not to leave the scene. The defendant's response to the order was several blows to the officer's face.

During the course of the assault, the elderly man, who had been lying on the ground, arose and left the area before anyone could question him. Efforts by the prosecution and police to locate the whereabouts of the elderly man were unsuccessful; however, the names of the officers who participated in the arrest of the defendant, as well as other witnesses, were disclosed to defense counsel.

Initially, the defendant moves to dismiss the indictment on the ground that law enforcement agents had failed to preserve material evidence. This motion was denied because it was clear that the elderly man was never under the control or direction of the police or prosecution and that the People did not intentionally procure his disappearance. Moreover, since no one had questioned him, it was impossible to determine whether he was in a position to testify or whether any testimony would have been material and relevant to the defense. (People v. Jenkins, 41 N.Y.2d 307, 392 N.Y.S.2d 587, 360 N.E.2d 1288 [1977].)

Despite the court's denial of the defendant's motion to dismiss for failure to preserve material evidence, i.e., the testimony of the elderly man, counsel for defendant, in his summation before the jury, criticized the assistant district attorney for failure to call the elderly man as a witness.

In addition, during summation, counsel commented on the fact that the prosecution did not call as a witness, one Sonny Goldstein, concededly an eyewitness to the assault. The prosecutor had earlier advised the defense of the identity of Mr. Goldstein, and had in fact caused Mr. Goldstein to appear in court for an interview with defense counsel. After conferring with Mr. Goldstein, the defense chose not to call him as a witness, apparently agreeing with the prosecutor's contention that his testimony was cumulative.

It is noteworthy that counsel for the defense never requested a missing witness charge from the court with respect to either of the two individuals. In my view, counsel's comments, during summation, on the prosecution's failure to call as witnesses, the elderly man and Mr. Goldstein, were unfair and improper.

Defendant's reliance on People v. Taylor, 98 Misc.2d 163, 413 N.Y.S.2d 571 (1979), as authority for such comments, is misplaced. In Taylor, after both sides had rested, defense counsel requested and received a charge on the prosecution's failure to call a confidential informant as a witness. Neither prosecution nor defense called the informant as a witness, although the informant had been made available to the defense. Indeed, the defense called no witnesses whatsoever.

The court in Taylor held that the prosecution had a duty to call the informant as its own witness because that witness was under its control. Having failed to do so, defendant's request for a missing witness charge was granted, and comment in summation on the People's dereliction in this regard was permissible.

In Taylor, the People's case against the defendant rested solely on the testimony of an undercover officer whose testimony could be accredited or impeached only by the informant. Unlike the instant case, where other witnesses were called by the defense, no alternate witnesses were available.

Unlike Taylor, supra, where the informant was under the control of the prosecution, the "missing" witnesses in the instant case were never under the sole and exclusive control of the prosecution, a conclusion made emphatically clear in the court's decision after a pretrial motion.

Again, with respect to the prospective witness Goldstein, defense counsel never requested a missing witness charge nor was his testimony the only evidence available to the defense. Moreover, there had been no indication that Mr. Goldstein's testimony would have been plainly favorable to the prosecution and hostile to the defense (People v. Brown, 34 N.Y.2d 658, 355 N.Y.S.2d 579, 311 N.E.2d 650 [1974]).

"Even assuming that their evidence was favorable to the defendant, and there is no showing to that effect, the names and addresses of these persons, and statements made by them to the authorities, were furnished to defense counsel at the close of the People's case ... once having received it, counsel chose not to call any of these persons as witnesses for the defense. In a word, there was no prejudice and no suppression of evidence." (People v. Stridiron, 33 N.Y.2d 287, 292-93, 352 N.Y.S.2d 179, 307 N.E.2d 242, 1973.)

The Court of Appeals added, in a...