People v. Williams

OPINION OF THE COURT

Friedman, J.

Defendant was convicted of selling two glassine containers of heroin to an undercover police detective. At trial, the People presented two witnesses, the detective who purchased the heroin (UC 22152) and the arresting officer. Of these two witnesses, only UC 22152 testified to having witnessed the transaction. UC 22152’s identification testimony was not corroborated by any other evidence. Although the officers’ testimony established that the undercover team included a “ghost” assigned to observe the transaction, the People did not call any “ghost” to testify. Further, the People did not offer any prerecorded “buy” money or additional drugs alleged to have been recovered from defendant. Although the witnesses described defendant as having worn a distinctive blue hat with white flowers, the hat, as the People acknowledge, did not appear in defendant’s arrest photograph, nor was the hat offered in evidence.

In his summation, defense counsel, who had not presented any evidence, characterized the prosecution case as “skeletal,” emphasizing the lack of corroboration of UC 22152’s identification of defendant. In this regard, counsel stressed the People’s failure to call a “ghost” to testify as an eyewitness to the drug sale with which defendant was charged.

The court’s charge to the jury included the following language:

“[Y]ou must 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 courtroom. Do not speculate on the whereabouts of people whose names are mentioned as having been at the alleged scene of the crime who were not called as witnesses. No one is required to come to court and testify. Don’t speculate on their non-appearance, or what they might have said if they would have come. Judge the evidence that you saw and heard here which you actually saw and heard in this courtroom. Does that evidence convince you beyond a reasonable doubt or not; is it sufficient or is it insufficient.” (Emphasis added.)

At the close of the charge, defense counsel objected to the highlighted language in the above-quoted passage, asserting that it was substantially the same as a proposed handwritten charge that the court had withdrawn upon counsel’s objection during precharge proceedings. Counsel noted, in substance, that the charge, as given, undercut his summation, in which he referred to the fact that the jury had not heard testimony from a “ghost.” Counsel asserted that the aggregate effect of the court’s charge was to tell the jurors that they were “to consider the lack of evidence, but they’re not to consider the lack of evidence.” The court responded: “I didn’t say they’re not to consider; I said not to speculate. . . .” The court declined to give the jury further instructions to clarify this point, and noted that defendant had an exception. The case was then submitted to the jury, which returned a guilty verdict.

On appeal, defendant argues that, in charging the jury, the trial court committed reversible error in using the highlighted language in the above-quoted passage, which, he claims, deprived his trial counsel’s comments concerning the People’s failure to call the “ghost” of any force or effect. In this regard, defendant correctly points out that, even if the criteria for a missing witness charge (see People v Keen, 94 NY2d 533, 539 [2000]) were not entirely satisfied, his trial counsel was entitled to comment in summation on the People’s failure to call a “ghost” witness, since such comments, to which the prosecutor raised no objection, had an adequate foundation in the record (see e.g. People v Tankleff, 84 NY2d 992, 994-995 [1994], rearg denied 93 NY2d 1034 [1999]; People v Williams, 301 AD2d 369, 370 [2003], lv denied 99 NY2d 659 [2003]; People v Negroni, 280 AD2d 497 [2001], lv denied 96 NY2d 832 [2001]; People v Ruine, 258 AD2d 278 [1999], lv denied 93 NY2d 929 [1999]; People v Wood, 245 AD2d 200, 201 [1997], lv denied 91 NY2d 946 [1998]; People v Barroso, 228 AD2d 196 [1996]; People v Smith, 190 AD2d 522 [1993], lv denied 81 NY2d 977 [1993]). We agree with defendant that a new trial is required on this ground.

We acknowledge that the portion of the court’s charge directing the jury not to speculate about the substance of the hypothetical testimony of a person mentioned as an uncalled witness was not incorrect in itself (cf. 1 CJI[NY] 8.54, 8.55 [1983] [the pattern missing witness charges in effect at the time of defendant’s trial included admonitions “not . . . [to] speculate or guess” as to the substance of the uncalled witness’s testimony]). Nonetheless, the direction not to speculate on the substance of an uncalled witness’s testimony, unaccompanied by any comment clarifying that the jury could still give such weight as it chose to the People’s failure to call that witness (see Ruine, 258 AD2d at 278), may well have misled the jurors to believe that they were not permitted to draw any inference from the People’s failure to call the witness. This is not the law (see Tankleff, 84 NY2d at 994 [approving summation comments on witnesses not called by defense that “were not made in bad faith and were merely efforts to persuade the jury to draw inferences that supported the People’s position”]). Since a missing witness charge was not being given, the court should simply have remained silent concerning the consideration the jury could properly give to the People’s failure to call the “ghost,” unless an inquiry by the jury (none was received) forced it to address the matter (see Ruine, 258 AD2d at 278). Although the court at several points in the charge stated that the jury could consider any “lack of evidence” in deciding the case, such remarks were not sufficient to cure the harm done to the defense by the error discussed above. We would further note that the court’s comment that “[n]o one is required to come to court and testify” is inaccurate. In addition, the court’s statement that the jury should decide the case based on “the evidence or lack of evidence actually presented to you in this courtroom” (emphasis added) was a needlessly confusing modification of the standard CJI charge.

Although defendant failed to preserve a claim of constitutional error, his counsel’s objection to an unanticipated portion of the charge, which protest was registered immediately after the charge was completed and prior to submission of the case to the jury, plainly did preserve a claim of nonconstitutional trial error (see CPL 470.05 [2]). Thus, contrary to the dissent’s suggestion, we review this claim on the law, not in the exercise of our “interest of justice” jurisdiction. Applying the standard of harmless error analysis appropriate to claims of nonconstitutional error (see People v Kello, 96 NY2d 740, 744 [2001]), we cannot conclude that the error in question was harmless. The proof of defendant’s guilt, consisting of an uncorroborated eyewitness identification, was, contrary to the dissent’s assertion, less than overwhelming, although plainly sufficient to support a conviction. Moreover, 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. Accordingly, it cannot be said that there was no significant probability of acquittal had the court not given the erroneous charge.

In closing, we wish to make clear that our decision does not mean that, in a prosecution based on an undercover drug purchase, the defense is entitled to a missing witness charge unless the People call a “ghost” to corroborate the testimony of the officer who made the purchase. Contrary to the dissent’s claim, nowhere do we “assert[ ] that the court was . . . required” to give such an instruction. A party is not entitled to a missing witness charge if the testimony of the uncalled witness would be merely cumulative (see Keen, 94 NY2d at 539; People v Freeman, 305 AD2d 331, 331-332 [2003], lv denied 100 NY2d 594 [2003]), even if the opposing party has called only one witness to testify on a given material issue. Nor does our decision mean that the defendant will invariably be entitled, in any such prosecution, to comment in summation on a failure to have a ghost testify. Here, however, the issue is neither a missing witness charge (which defendant apparently did not request), nor the propriety of defense counsel’s comments (to which the People did not object), but defendant’s right to mount a defense based on the lack of corroboration of the key identification evidence against him. Contrary to the view of our dissenting colleagues, defendant’s counsel did offer such a defense in this case, and, since even the People did not object to defendant’s raising that defense, defendant was entitled to a charge that did not interfere with his right to have that defense receive the jury’s due consideration.

Since the foregoing is sufficient to require that the conviction be reversed and the matter remanded for a new trial, we need not reach defendant’s remaining arguments.

Accordingly, the judgment of the Supreme Court, New York County (John E.H. Stackhouse, J.), rendered March 20, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, should be reversed, on the law, and the matter remanded for a new trial.