The People &c.,
2005 NY Int. 92
The order of the Appellate Division should be affirmed.
Defendant allegedly sold two glassine envelopes of heroin to
an undercover police officer during a buy-and-bust operation.
The operation involved three officers -- one undercover officer
who purchased drugs from defendant, one undercover officer who
At the charge conference, defendant requested that a portion of the Judge's proposed charge instructing jurors not to speculate about what evidence could have been presented not be given to the jury. According to defense counsel, such an instruction would "conflict with the concept that [the jurors are] to consider evidence or lack of evidence" (emphasis added). Agreeing that the instruction "might mislead the jury," the Trial Judge told the parties that he would not give it.
In his summation, defense counsel argued that the People's
case was "skeletal," pointing to the prosecution's failure to
introduce any evidence to corroborate the testimony of the single
identifying witness -- no pre-recorded buy money, no blue and
white flowered hat, no photograph of the defendant wearing the
hat and, despite the alleged presence of the ghost officer at the
We agree with the Appellate Division majority that, in the context of this case, the instruction was error, "given that the central theme of the defense at trial was that the one-witness identification was entirely uncorroborated and therefore unreliable, the effect of the court's charge was essentially to instruct the jury not to consider the defense" (10 AD3d 213, 217 [1st Dept 2004]).
A defendant not necessarily entitled to a missing witness
charge may nonetheless try to persuade the jury to draw
inferences from the People's failure to call an available witness
with material, non-cumulative information about the case ( People
v Tankleff, , 84 NY2d 992, 994-995 ). Defendant was entitled
to argue that the jurors should consider the People's failure to
call the ghost officer to corroborate the single-witness
identification in support of his defense that the People's
evidence was uncorroborated and "skeletal." For the trial court
Defendant additionally argues that the trial court's
sua sponte decision to allow the undercover officer to testify
anonymously -- despite the prosecutor's statement that she was
not making such a request -- was reversible error. In light of
our decision as to the jury instruction, we need not reach this
I cannot agree that Supreme Court's charge was flawed.
The court instructed the jury to "decide this case solely on the
basis of the evidence or lack of evidence actually presented to
you in this courtroom, which you actually saw and heard in this
Since I disagree with the majority on this issue, I reach, as the majority does not, the alternative ground defendant offers to support the Appellate Division's reversal of his conviction. This alternative argument is based on Supreme Court's ruling that the undercover officer who allegedly bought heroin from defendant could testify anonymously. The ruling was made during a colloquy that began when the prosecutor said she would not ask that the courtroom be closed pursuant to People v Hinton (31 2 71 ). The colloquy continued:
"MS. WILLIAMS [the prosecutor]: So, my detective will be using his name.
THE COURT: He will. Okay.
MS. WILLIAMS: I'm asking if the Court --
THE COURT: If he wants to; he doesn't have to. He can use his number, if you'd rather go by number. That's fine with me.
MS. WILLIAMS: Okay.
MR. VERCHICK [defense counsel]: Well, I will object.
THE COURT: Over the Defense's objection, he cannot state his name. I think that's reasonable."
This ruling clearly violated defendant's right of confrontation under our decision in People v Stanard (, 42 NY2d 74 ). We held in Stanard that a witness may be permitted to remain anonymous only where the prosecution makes "some showing of why the witness should be excused from answering" a question related to his identity. We said that "[e]xcuse may arise from a showing that the question will harass, annoy, humiliate or endanger the witness" ( id. at 84). Even upon such a showing, anonymity is not granted automatically; the defendant is entitled to show "the materiality of the requested information to the issue of guilt or innocence", and "the court must engage in a balancing process which compares the rights of the defendant to cross-examination . . . with the interest of the witness in retaining some degree of anonymity" ( id.). Here, Supreme Court conferred anonymity on the witness sua sponte, although the prosecutor offered to have the witness use his name and did not try to make the showing Stanard requires.
The People's only argument on this branch of the case
is that defense counsel's statement "I will object" was not
Accordingly, I would affirm the Appellate Division's order on the ground that Supreme Court erred in allowing the undercover officer to testify anonymously.