People v. Sapia

• Decision Date: 28 December 1976
• Citation: 359 N.E.2d 688,391 N.Y.S.2d 93,41 N.Y.2d 160
• Parties: , 359 N.E.2d 688 The PEOPLE of the State of New York, Respondent, v. Joseph SAPIA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 93

391 N.Y.S.2d 93

41 N.Y.2d 160, 359 N.E.2d 688

The PEOPLE of the State of New York, Respondent, v. Joseph SAPIA, Appellant.

Court of Appeals of New York.

Dec. 28, 1976.

Irving Anolik, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (David I. Pincus, Brooklyn, and Peter L. Zimroth, New York City, of counsel), for respondent.

JONES, Judge.

With respect to the principal issue tendered on this appeal we hold that in the circumstances of this case the prosecution had no obligation, after identifying and producing an informer, to grant him immunity when, in the exercise of his privilege against self incrimination, the informer refused to give what, assumedly, would have been exculpatory testimony.

Earl Fodderell was one of several persons arrested and indicted on Federal charges arising out of an extensive, cooperative drug investigation conducted by local and Federal law enforcement officers. After Fodderell, reputedly a large narcotics distributor in New York City, had pleaded to the Federal charges, he indicated his willingness to co-operate with the New York City police in further investigations and was registered as a confidential informer. In consequence of disclosures by Fodderell, police attention was focused on defendant and plans were made for his apprehension. Fodderell participated in the formulation of plans for a purchase from defendant. He introduced the undercover officer to one Gardner, a friend of defendant destined to be the intermediary, and assisted in arranging a first appointment which was never kept by defendant. Fodderell again was active in setting up a second meeting between the undercover officer and defendant on June 27, 1973 at which both Fodderell and Gardner were present. The purchase money, together with a payment for Gardener's services, was handed to Gardner and the details of a transfer from defendant were worked out. Fodderell apparently was an eyewitness to the sale at that time by defendant to the undercover officer of four ounces of heroin. Defendant made another sale to the same undercover officer on July 6, 1973, this time of one kilo of heroin. While this sale, too, could be attributed to Fodderell's earlier co-operation, it does not appear that he had any direct part in arranging it, nor was he a witness to its execution.

At his trial defendant sought to interpose the defense of entrapment. During the course of lengthy arguments incident to adverse rulings as to the admissibility of evidence offered by defendant in support of such defense, the trial court suggested that defendant call Fodderell to give testimony concerning his claim. After initially opposing this suggestion, and particularly because of the court's exclusion of other evidenc the defense decided to interview Fodderell who was then serving a 12-year sentence on the Federal drug charges. After an initial interview, defense counsel requested that Fodderell be brought to court. The prospective witness appeared with his attorney who stated that Fodderell would invoke his privilege against self incrimination and refuse to testify unless granted immunity.

After an In camera discussion with Fodderell's attorney out of the presence both of defense counsel and of the prosecutor and without disclosing the nature or particulars of Fodderell's prospective testimony, the Trial Judge concluded that, if believed, the testimony would be exculpatory and constituted material evidence which the jury should hear. The prosecution declined the trial court's repeated suggestion that the witness be granted immunity (CPL 50.30). Fodderell's attorney thereupon reported that his client refused to be interviewed further by the defense.

The Trial Judge apparently was not satisfied with the representations of Fodderell's attorney in this regard, and accordingly, Fodderell was himself called to the witness stand out of the presence of the jury. Following discussion of the situation with the court, Fodderell agreed to confer further with defense counsel. After such conference defense counsel became less than enthusiastic to call the witness, conceding some weaknesses in the prospective testimony.

The following day the dilemma was resolved. On advice of his counsel Fodderell informed the court that he had reconsidered his predicament and would invoke his privilege against self incrimination. The prosecution restated his opposition to any grant of immunity. The defense requested permission to call Fodderell to the stand, to ask questions and to require the witness to exercise his constitutional privilege in the presence of the jury. This request was denied, but the court did instruct the jury that Fodderell had been called as a defense witness and in its absence had invoked his privilege against self incrimination. The jury was advised not to speculate about the reasons for Fodderell's exercise of his constitutional rights, and the Fodderell chapter was closed.

Defendant now advances several grounds for reversal of his conviction by the jury. Principally his contentions revolve around Fodderell. First, it is asserted that defendant was prejudiced by the People's failure to call Fodderell, so frequently and importantly referred to in the People's proof, as a prosecution witness, which effectively denied defendant his constitutional right of confrontation. We know of no instance, however, in which a court has dictated to a prosecutor whom he shall call to the witness stand. (Clearly to be distinguished are both the extent of the obligation, if any, of the prosecutor to make potential witnesses available to the defense, and the entitlement of the defendant to an instruction as to inferences which may be drawn from the failure of the prosecution to call a witness; but neither of such issues has any place in this case.)

Additionally, defendant contends that it was prejudicial error to deny defense counsel's request to call Fodderell to the witness stand and to put him to his claim of privilege against self incrimination in the presence of the jury. We have no hesitancy to state our conclusion that there was no abuse of discretion by the Trial Judge in this regard. (United States v. Martin, 10 Cir., 526 F.2d 485, 487.)

More troublesome is the question identified and addressed in the opinions at the Appellate Division and adverted to by the People--whether in the circumstances of this case the failure of the prosecution to confer immunity, and thereby to make Fodderell's testimony available to the defendant, warrants reversal (cf. People v. Tyler, 40 N.Y.2d 1065, 392 N.Y.S.2d 250, 360 N.E.2d 928 decided herewith).

There can be no serious doubt as to Fodderell's right to assert his constitutional privilege in this case. Even if the content of his prospective testimony were to be deemed insulated by his conviction on the Federal charges--a proposition which is not entirely clear--there is substance to the argument that his proposed testimony would have been so inconsistent with prior statements he had made to Federal authorities as to expose him to conviction for perjury. No serious contention is now advanced that the privilege was not warranted; the focus is rather on the prosecution's failure to respond to the court's urgings that the witness be granted immunity.

In our analysis, if it be...