People v. Lesiuk , 560 N.Y.S.2d 711 ( 1990 )

Yesawich, Jr., J. (dissenting).

We respectfully dissent.

The majority’s analysis equates a defendant’s right to the production of an essential witness with his right to discover exculpatory material, a protection accorded by the Due Process Clause of the 14th Amendment. Considered in this context, resort to the reasonable probability standard, which finds constitutional error when the prosecutor fails to release exculpatory evidence only if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result [reached by the jury] would have been different” (United States v Bagley, 473 US 667, 682), appears appropriate. But we perceive defendant’s right to the production of a favorable witness to be a compulsory process concern governed by the 6th Amendment. And while it is not entirety clear what a defendant must show to demonstrate that his constitutional right to compulsory process has been violated, it is clear that what needs to be shown is considerably less than that required to establish a due process violation. We find no foundation in the case law to justify invoking the reasonable probability standard, used to determine whether a defendant’s right to disclosure has been breached, to measure whether his 6th Amendment right to have a witness produced has been violated.

The 6th Amendment Compulsory Process Clause guarantees at a minimum "that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt” (Pennsylvania v Ritchie, 480 US 39, 56). Compulsory process has been characterized as a fundamental right (see, People v Chipp, 75 NY2d 327, 336-337). Admittedly, the exact configuration of the Compulsory Process Clause has yet to be fully articulated (Pennsylvania v Ritchie, supra, at 55); and whether and how its guarantees differ from those of the 14th Amendment have yet to be decided by the United States Supreme Court (supra, at 56). A useful analogue, however, is the Supreme Court’s analysis of those cases in which the government has deported an eyewitness. In this situation, a defendant need only demonstrate "some plausible explanation of the assistance he would have received from the testimony of the deported witnesses” to establish a Compulsory Process Clause violation (United States v Valenzuela-Bernal, 458 US 858, 871). This is a far cry from having to establish a reasonable probability that the absent witness’s testimony would have changed the outcome of the defendant’s trial.

While our Court of Appeals also has not yet defined the parameters of compulsory process, it specifically observed in People v Jenkins (41 NY2d 307) that the standards for resolving due process and compulsory process issues are not identical, noting: "[W]e are not here involved with an obligation to produce any claimed or demonstrated exculpatory nonwitness evidence as in Brady v Maryland [373 US 83] or United States v Agurs [427 US 97]. Requirements * * * to produce exculpatory nontestimonial evidence or to produce a witness under prosecutorial control touch tangentially upon the question presented in this case. [Nor are we] here directly concerned with the rules governing [Brady] situations for, although they too are concerned with the relevance and materiality of the evidence sought with respect to the question of guilt, [they are] subject to somewhat differing standards” (People v Jenkins, supra, at 311 [emphasis supplied]). Significantly, the court concluded that even where the prosecution diligently albeit unsuccessfully attempts to locate a missing witness informant, a defendant is nevertheless entitled to have the charges dismissed or a new trial ordered if he can affirmatively "demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution’s case” (supra, at 310-311 [emphasis supplied]; see, People v Wicks, 76 NY2d 128, 133 [denying a defendant’s 6th Amendment right to the assistance of counsel at a preliminary hearing is harmless error only if there is no reasonable possibility that the error might have contributed to the defendant’s conviction]).

That something less than "reasonable probability” is the appropriate standard of review is further borne out by the Jenkins majority’s concession that "the dissenter would be persuasive if, but only if, there was the slightest suggestion in the record that [the missing informant’s] testimony would to the slightest degree establish any of the facts influencing the issue of guilt or innocence of the defendant” (People v Jenkins, supra, at 313 [emphasis supplied]).

Frequently defendants are unable to affirmatively show how an informant’s testimony would be exculpatory; here, however, defendant had no such difficulty. Discovering, shortly before trial commenced, that Charles Harvey would not testify, defendant immediately requested the presence of this missing witness. Harvey, an active and central participant in the alleged transaction, "was the only witness in a position to amplify or contradict the testimony of [the] government witness” (Roviaro v United States, 353 US 53, 64). At trial it was revealed that although Harvey’s whereabouts were unknown, he had contacted the State Police by telephone and told them, "You are not going to like my testimony.” After the trial was completed, defendant secured a fairly detailed affidavit from Harvey in which he avers that on December 4, 1986, at about 9 o’clock at the Viking Lanes parking lot in Dryden, New York: "[Defendant] did not sell me (or anyone else), or give me (or anyone else), any marijuana. Mr. Roney [the undercover police officer] gave me marijuana to take to [defendant’s] car. [Defendant] looked at what was in the bag, I told [defendant] that Mr. Roney wanted to buy a lot more marijuana like this. [Defendant] told me that he did not do that sort of thing and could not get any marijuana for Mr. Roney. While I was in [defendant’s] car * * * Mr. Roney was standing over by his car, which was parked a couple of cars away. * * * After I left [defendant’s] vehicle I gave Mr. Roney back the marijuana and he put the bag in his trunk. * * * I told [the State Police] that [defendant] did not have any marijuana * * *. I told [the police] that [they] would not like what I had to say if I testified, but no attempt was made to contact me to testify at [defendant’s] trial.” Irrespective of Harvey’s credibility, it is obvious that had he testified, his testimony would have tended to support defendant’s contention that the grounds for his arrest were falsely concocted and could have had a vital impact on the ultimate issue of whether he is innocent or guilty. At all events, given the language of Jenkins (supra) it can fairly be said that the People’s failure to secure this witness deprived defendant of a fair trial (see, People v Brown, 84 AD2d 910; see also, People v Jenkins, supra; People v Canales, 75 AD2d 875; cf., People v Watson, 120 AD2d 866, 867; People v McKinney, 82 AD2d 895). The favorable missing witness charge defendant was accorded is no substitute for his right to compulsory process (cf., People v White, 57 AD2d 967, 968). Accordingly, the conviction should be reversed and the matter remitted for a new trial and the judgment rendered June 7, 1989, should be stayed pending resolution of the new trial.

Mahoney, P. J., and Mercure, J., concur with Levine, J.; Mikoll and Yesawich, Jr., JJ., dissent and vote to reverse in an opinion by Yesawich, Jr., J.

Decision withheld, and matters remitted to the County Court of Tompkins County for further proceedings not inconsistent with this court’s decision.