People v. Carpenito
| Decision Date | 07 July 1992 |
| Parties | , 599 N.E.2d 668 The PEOPLE of the State of New York, Respondent, v. Anthony CARPENITO, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
On July 26, 1988, a search warrant was issued for defendant, his wife, their residence in North White Plains and any vehicles owned or operated by them. In the application for the warrant, Detective Lawrence Burns of the Mount Pleasant Police Department stated that beginning in January of 1988, based upon information from a confidential informant, the Department had begun an investigation into cocaine trafficking within the Town. The warrant application also contained detailed information from a second informant and the results of independent police surveillance, both of which linked the defendant to this alleged drug network. On July 27, 1988, Detective Burns executed the warrant and seized drugs, hypodermic needles, weapons, sales records and other drug paraphernalia.
Defendant was indicted on charges of criminal possession of a controlled substance in the second degree, criminal possession of a weapon in the fourth degree, two counts of criminally possessing a hypodermic instrument, and unlawful possession of marihuana. Defendant moved to suppress the physical evidence and challenged certain of the statements made by the second confidential informant as false and perjurious. He requested an in camera hearing in advance of trial into the informant's existence, in accordance with this Court's holding in People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49).
By decision and order filed May 17, 1989, County Court, Westchester County, granted defendant's motion only to the extent of ordering a hearing regarding the existence of the second informant, in order "to guard against fabrication of informants." The People were unable to produce the informant for an in camera Darden examination, and at proceedings held on October 5, 1989, the People informed the Judge that the informant had been threatened with bodily harm and was too frightened to appear in court for the Darden examination. The People moved to reargue that portion of the May 17, 1989 decision in which the Judge had granted the defendant the Darden examination. In addition, the People offered to produce a detective who would, under oath and in camera, disclose the informant's name, recount conversations he had had with the informant, and describe his efforts to secure the informant's presence at the Darden examination.
The defendant again moved to suppress the physical evidence seized, and by decision and order entered November 3, 1989, the defendant's motion was granted. The People appealed and the Appellate Division reversed, holding that although it was not improper to have ordered a Darden examination in this case, the hearing court should not have ordered the evidence suppressed without considering alternative evidence regarding the existence of the informant (171 A.D.2d 45, 50-55, 574 N.Y.S.2d 218). A Judge of this Court granted defendant's motion for leave to appeal.
The People argue that the hearing court should not have ordered a Darden examination in the first instance. We are not able to consider the People's argument on this appeal. Were we to hold that the Judge indeed abused his discretion in ordering the examination, as the People urge, we would in essence be...
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...587, 360 N.E.2d 1288 ). Moreover, although he was not entitled to it, given the CI's unavailability (see People v. Carpenito, 80 N.Y.2d 65, 68, 587 N.Y.S.2d 264, 599 N.E.2d 668 [1992] ; People v. Castro, 291 A.D.2d 292, 293, 737 N.Y.S.2d 605 [2002], lv. denied 98 N.Y.2d 636, 744 N.Y.S.2d 76......
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...the People established the unavailability of the informants despite diligent efforts to locate them ( see People v. Carpenito, 80 N.Y.2d 65, 68, 587 N.Y.S.2d 264, 599 N.E.2d 668). Thereafter, the court properly considered extrinsic evidence of the informants' existence in reaching its deter......
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...that the informant is unavailable and cannot be produced through the exercise of due diligence (see, People v. Carpenito, 80 N.Y.2d 65, 68, 587 N.Y.S.2d 264, 599 N.E.2d 668, citing People v. Fulton, 86 A.D.2d 675, 450 N.Y.S.2d 392 affd. 58 N.Y.2d 914, 460 N.Y.S.2d 508, 447 N.E.2d 56; People......
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