People v. Taylor

• Decision Date: 24 January 1979
• Citation: 98 Misc.2d 163,413 N.Y.S.2d 571
• Parties: The PEOPLE of the State of New York v. Denise TAYLOR, Defendant.
• Court: New York Supreme Court

Page 571

413 N.Y.S.2d 571

98 Misc.2d 163

The PEOPLE of the State of New York v. Denise TAYLOR, Defendant.

Supreme Court, Trial Term, New York County, Part 102.

Jan. 24, 1979.

Sterling Johnson, Jr., Sp. Dist. Atty. of New York County, New York City, for the People; by Paul Taylor, Asst. Dist. Atty.

Leon B. Polsky, Attorney for Legal Aid Society, New York City, for defendant; by Michael J. Monaghan, New York City.

SHELDON S. LEVY, Justice:

Do the People have an obligation to call as their own witness a confidential informant who was present at an alleged sale of narcotics by the defendant to an undercover police officer? If so, would the voluntary production by the People of such a confidential informant for pre-trial interrogation by defense counsel and/or by the court abrogate any such duty? If not, would the defendant be entitled to a "missing witness" charge if the People declined to use the informant as a witness? If so, what form of "missing witness" charge should be used? And, finally, what type of comments, if any, would respective counsel be permitted on this subject in their summations?

If these questions in combination are not of first impression, then they are certainly of previous faint impression.

In point of fact, these issues have arisen in the course of a jury trial of the defendant on charges of Criminal Sale of a Controlled Substance in the Second Degree and Criminal Possession of a Controlled Substance in the Fifth Degree. After both sides had rested the defendant without producing any witnesses defense counsel made the following Request to Charge with respect to the prosecution's failure to call as a witness a confidential informant who was concededly the only other eye-witness to the crimes charged:

"The failure of the People to produce the confidential informant as a witness or to explain his absence can permit the jury to infer that whatever testimony the confidential informer had to offer would be detrimental to the prosecution's position." (Admittedly, the request to charge was based upon a somewhat similar request approved in People v. Douglas, 54 A.D.2d 515, 516, 386 N.Y.S.2d 477, 478).

The pertinent facts leading up to that request are briefly stated. Before the trial began, the People had apparently determined that they would not use the confidential informant although an eye-witness to the narcotics sale charged as a witness on their direct case. The purported reason for this, as stated by the Assistant District Attorney, was that the informant had been threatened by relatives of the defendant and was afraid to testify. The People also asserted that his testimony would be duplicative and cumulative of the evidence of the undercover police officer. Nevertheless, upon request, defense counsel, out of the presence of the defendant, was permitted to interview the confidential informant.

Thereafter, defense counsel's evaluation of the proffered witness was that he would support the undercover's version of events in some respects and directly contradict it in others. Although the People then held the informant available as a witness for the defense if so desired, defense counsel did not call the informant, did not call the defendant, and, in fact, rested upon the People's case.

During the course of the trial, by way of cross-examination of two police witnesses, it was plainly revealed that the confidential informant was under the complete control of the People and the People's witnesses. He was under indictment for a street level sale of drugs to the same undercover officer; his case was pending; and he had become an informant as a result of his arrest. He had also helped make other cases for the team that was now "operating" him.

After the prosecution's presentation, it was obvious that the matter would be a close one for jury determination. The defense had raised a viable question as to identity of the perpetrator of the crime in view of brief observations, inadequate lighting conditions and lack of prior dealings. The People's case against the defendant rested solely upon the evidence of the undercover officer. His credibility was firmly in issue. And yet there was one, but only one other individual plainly available to the People and forcefully under their control who could give direct, relevant and material testimony concerning the very crimes charged. Nor was there any alternative source for such evidence on behalf of the defense (People v. Singleton, 42 N.Y.2d 466, 470, 398 N.Y.S.2d 871, 874, 368 N.E.2d 1237, 1239).

Even where an informant may not be an eye-witness to criminal events, but is under the control of the People and has some material and relevant information to impart, there can no longer be any doubt that the People have a clear obligation to identify such person, to produce him and to make him available to the defense (People v. Jenkins, 41 N.Y.2d 307, 392 N.Y.S.2d 587, 360 N.E.2d 1288; People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41). If there is any question about the relevance of the informant's prospective testimony or his ability to testify at all, he must be produced, at least, for In camera interrogation by the court (People v. Singleton, supra; People v. Tranchina, 64 A.D.2d 616, 406 N.Y.S.2d 523), and for an initial determination of any such issues raised. Where the People elect not to make such disclosure and production, the indictment may be dismissed in the interests of justice (People v. Singleton, supra ).

Moreover, the People must always make reasonable, good faith efforts to secure the attendance of such a witness (People v. Jenkins, supra 41 N.Y.2d at 310-11, 392 N.Y.S.2d at 589, 360 N.E.2d at 1289-90). Defendant's "right to confrontation, due process, and fairness" demand no less (People v. Goggins, supra 34 N.Y.2d at 168, 356 N.Y.S.2d at 574, 313 N.E.2d at 44).

That being so, would not the same constitutional rights of a defendant and policy considerations against the risk of convicting the innocent mandate a non-avoidable duty on the part of the People to put on the stand an available person under their control, who was an eye-witness to the transaction in issue? In the case of a fellow police officer, who presumably was an eye-witness, the Court of Appeals has responded strongly in the affirmative (People v. Brown, 34 N.Y.2d 658, 355 N.Y.S.2d 579, 311 N.E.2d 650; see also People v. Valerius, 31 N.Y.2d 51, 334 N.Y.S.2d 871, 286 N.E.2d 254). No significant difference is discernible in the case of an available confidential informant who is under the control of the People (see People v. Alamo, 63 A.D.2d 6, 406 N.Y.S.2d 787). By such action, not only would the cause of justice and fair play be well served, but substantial credibility would be added to the proposition that a trial is really a search for the truth and not merely a lawyers' game of strategy.

The People's magnanimous action in affording defense counsel a private interview with the confidential informant in this case, when they had no intention of calling him as their own witness in any event, can only be analogized to "giving ice away in the winter." The People had a plain duty to make the informant available to the defense under the dictates of the Jenkins case or, at a minimum, to produce the witness for court interrogation, unless initially they could clearly demonstrate that the prospective witness was either not under their control or was unavailable. In the present case, the People could do neither, since the informant was surely under their control and was clearly available.

Nor can the prosecutor's gracious gesture here, in tendering the eye-witness directly to the defense, serve to abrogate his obligation, pursuant to People v. Brown (supra), to call the informant, for better or for worse, as his own witness as a part of the People's direct case. The testimony of the confidential informant could easily be non-cumulative and would certainly not be trivial (People v. Brown, supra ). The mere offer of such a witness does not make him truly "available" to the defense. Moreover, the rule of equal accessibility of the parties to a witness does not apply where the witness is plainly favorable to one side and hostile to the other (People v. Rodriguez, 38 N.Y.2d 95, 98, 378 N.Y.S.2d 665, 667, 341 N.E.2d 231, 232). The rule, in fact, can only logically be applied where both parties have an equal interest in procuring the testimony of the witness (People v. Moore, 17 A.D.2d 57, 61, 230 N.Y.S.2d 880, 884), which was certainly not the situation here.

To place upon the defense the decision whether to call to the stand an obviously hostile witness, who is not under its control and is only technically "available" to it, or to lose the evidence of such an eye-witness altogether, would be an unnecessary and onerous "Hobson's choice." This is especially so since the defense frequently will offer no evidence of its own, will have no desire or intention to do so, and has absolutely no obligation to so do (see People v. Moore, 17 A.D.2d 57, 61, 230 N.Y.S.2d 880, 884). Any other view would most seriously impinge upon a defendant's basic constitutional rights, including the presumption of innocence, the privilege not to present any witnesses or evidence and the People's non-shifting burden of proof beyond a reasonable doubt.

Accordingly, and under the circumstances presented, the People's duty to use the confidential informant as their own witness is clear. The necessary corollary is that where the People fail to do so or the explanation for such failure has not been accepted by the court (when a preliminary hearing on the issue of "availability," "control" or "reasonable efforts to locate" has been requested and granted) then the defendant has an absolute right "to a Proper charge as to...