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1
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OPINION
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EXTRACTED KEY WORDS
TRIAL COURT APPELLANT DEFENDANT ARRESTING OFFICER MEMORANDUM DEFENSE COUNSEL RESPONDENT ANDREW APPELLATE DIVISION UNDERCOVER POLICE OFFICER BACKUP DRUG SALE INSTRUCTION GONZALEZ NY2D RADIO JUDGE INQUIRY TRIAL DEFENSE HUERTAS INASMUCH REVIEW ACTING CHIEF JUDGE CHIEF JUDGE SIMONS JUDGES KAYE TITONE HANCOCK BELLACOSA SMITH CONCUR |
THE PEOPLE &C., RESPONDENT, v. CHRISTOPHER LYONS, APPELLANT.
81 N.Y.2d 753, 609 N.E.2d 129, 593 N.Y.S.2d 776 (1992).
December 21, 1992
2 No. 280
Decided December 21, 1992
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Andrew H. Freifeld, for Appellant.
Andrew J. Barovick, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was arrested in a "buy and bust" street narcotics exchange
involving a transactional undercover police officer, backup officers
and a designated "arresting officer". The perpetrator was convicted of
a criminal drug sale in the third degree. At trial, defense counsel
requested a missing witness instruction to the jury because the
designated "arresting officer" was not called to testify by the
People.
The Appellate Division correctly concluded that, under the rationale
of People v Gonzalez (68 NY2d 424), defendant did not qualify for the
sought-after instruction and that it was properly rejected by the
trial court. The designated "arresting officer", who recorded the
undercover officer's radio description of defendant and "who was a few
blocks away from the location of the drug sale, was not in a position
to have knowledge of material issues or to have observed anything that
would make his testimony relevant to any material issue in the case"
(178 AD2d 492, 493 (citations omitted); see, People v Gonzalez, supra,
at 427).
The defendant-appellant also claims that the trial court erred in not
allowing defense counsel to cross-examine the backup police officers
concerning some identification details transmitted by radio between
the team of officers. Appellant does not claim that the trial court
erred in sustaining the People's hearsay objection, but instead, on
appeal for the first time, suggests an alternative limited
justification for allowing the line of inquiry trial defense counsel
wished to pursue (see, People v Huertas, 75 NY2d 487, 492). Inasmuch
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