People v. Pena

• Citation: 339 N.E.2d 149,37 N.Y.2d 642,376 N.Y.S.2d 452
• Parties: , 339 N.E.2d 149 The PEOPLE of the State of New York, Appellant, v. Domingo PENA, Respondent.
• Decision Date: 30 October 1975
• Court: New York Court of Appeals

Page 452

376 N.Y.S.2d 452

37 N.Y.2d 642, 339 N.E.2d 149

The PEOPLE of the State of New York, Appellant, v. Domingo PENA, Respondent.

Court of Appeals of New York.

Oct. 30, 1975.

Eugene Gold, Dist. Atty. (Robert Dublirer and Roger Bennet Adler, Brooklyn, of counsel), for appellant.

Philip L. Weinstein and William E. Hellerstein, New York City, for respondent.

FUCHSBERG, Judge.

On this appeal by the People, the sole issue is whether the trial court properly denied defendant's application for disclosure of the identity of a confidential informer.

After a trial by jury, the defendant was convicted on all counts of an indictment charging him with the sale and possession of dangerous drugs. The Appellate Division, Second Department (45 A.D.2d 1038, 357 N.Y.S.2d 899), by a divided court, reversed the judgment and ordered a new trial so that the informer can be produced. For the reasons which follow, we believe that order should be reversed. ¹

The identity of persons communicating information to prosecutorial agencies concerning the commission of crimes has long been accorded the privilege of confidentiality. Such communications have been encouraged as an aid to law enforcement and, in order to keep the sources of information from drying up, it has been found necessary to deny disclosure of the communicants in order to protect them from physical and other reprisals as well as the social stigma such activities engender in some. (8 Wigmore, Evidence (McNaughton rev. 1961), § 2374; Matter of Langert v. Tenney, 5 A.D.2d 586, 173 N.Y.S.2d 665, app. dsmd. 5 N.Y.2d 875, 182 N.Y.S.2d 25, 155 N.E.2d 870; Donnelly, Judicial Control of Informants, Spies, Stool Pigeons and Agents Provocateurs, 60 Yale L.J. 1091; see, generally, Accused's Rights-Informer-Identity, Ann., 76 A.L.R.2d 262.)

However, as with most privileges, there are limitations. A basis one is that it may not stand in the way of a fair trial. (McCormick, Evidence (2d ed.), § 111, p. 238.) Therefore, when, 'taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors', it appears that a fair trial would otherwise be imperiled, the privilege must yield. (Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 629, 1 L.Ed.2d 639.)

Recently, in People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. den. 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 and People v. Brown, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. den. 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286, ² where we laid down guidelines which we reiterate with undiminished force today, we made it clear that the initial burden to compel disclosure is on the defendant. As Judge Wachtler there put it (p. 169, 356 N.Y.S.2d p. 575, 313 N.E.2d p. 44), 'Bare assertions or conclusory allegations by a defendant that a witness is needed to establish his innocence will not suffice. Instead he must show a basis in fact to establish that his demand does not have an improper motive and is not merely an angling in desperation for possible weaknesses in the prosecution's investigation' (citation omitted). On that basis, we concluded that an applicant's burden may be met when weakness is found in the case against him, whether manifested during the People's or the defendant's case, or when the issue of identification appears to be a close one. A less restricted rule than that would result in too ready resort to demands for disclosure, not because a defendant has genuine reason to believe that production or revelation of the identity of the informer would significantly aid rather than hurt his cause, but in pursuit of a stratagem to extract an unmerited dismissal from a prosecutor willing to pay that price to protect a reliable informer from exposure.

In the last analysis, 'the truly crucial factor in every case is the relevance of the informer's testimony to the guilt or innocence of the accused.' (Goggins, supra, 34 N.Y.2d p. 170, 356 N.Y.S.2d p. 576, 313 N.E.2d p. 45.) '(I)f upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.' (Marks v. Beyfus, 25 QBD 494, 498.)

With Goggins and Brown as guideposts, we now look to the proof here:

On April 19, 1972, Patrolman Daniel A. Pantano, a police officer with three years' experience in narcotics law enforcement, drove to Knickerbocker Avenue and Stanhope Street in Brooklyn in the company of a confidential informer. The latter was officially registered as such with the New York City Police Department. Arriving at that location at 2:30 P.M., the two men got out of the car and the informer introduced Pantano to a man called 'Indio'. 'Indio' later turned out to be the defendant Pena. The informer told Pena that Pantano was a friend 'looking (to buy narcotics).' Pena then said he was 'doing' ('selling' in drug trade vernacular) 'dimes' (packets of heroin retailing for $10). At this point the informer left; he was not present during any of the subsequent negotiations or at the time of the purchase itself.

Pantano testified that thereafter Pena sold him two 'dimes'. The officer had taken careful note of Pena's height, weight, features and other identifying physical characteristics, as well as of his mode of dress, all of which he had recorded shortly after the meeting. As soon as the transaction was completed the officer drove to Goodwin Place and Grove Street, a prearranged location nearby, to meet his backup team. There the drugs he had purchased were vouchered and sealed until they could be submitted for chemical analysis, which later revealed that they were indeed heroin.

A week later, on April 26, in broad daylight on a clear day, Pantano again met the man he had come to know as 'Indio', this time at Knickerbocker Avenue's intersection with Menah Street in the same neighborhood. Pantano asked what he was 'doing'. 'Indio' replied that he was doing 'half spoons' (an amount of heroin greater in both quantity and cost than a 'dime'). After some conversation, Pantano handed over $45 and received three bags of heroin. Although the informant had accompanied Pantano to the neighborhood this day too, no proof was offered to indicate that he was present at the initiating conversation, the negotiations, or the consummation of the sale itself. In short, he witnessed no phase of the transaction. Members of the undercover them, consisting of two other officers in plain clothes, did, however, observe the negotiations from a car parked only 45 feet away.

Fifteen minutes after the April 26 sale, both Pantano and his backup team each separately drove past the actual corner where the sale had taken place. 'Indio' was still there. As Pantano went by, before any arrest was made, he used the radio in his own unmarked police car to confirm to the team that the man on the corner was the seller. He also personally observed the actual arrest in order to be positive that no mistake in identity occurred. He found no difficulty in identifying the man arrested, whose true name he later learned to be Pena, as the same individual from whom he had bought the drugs that day as well as on April 19.

At trial, after Patrolman Pantano described how he had originally been introduced to Pena by an informer, defense counsel requested that the trial court order disclosure of the informer's name and address. The request was denied by the court, which, instead, thereafter conducted an In camera hearing concerning the existence of the informer, during which it solicited questions from counsel. At its conclusion the ruling against disclosure was adhered to. In giving identification testimony, Pantano did not rely on any information secured from the informer or...