People v. Garcia

• Decision Date: 23 March 1976
• Parties: The PEOPLE of the State of New York, Respondent, v. Julio GARCIA, a/k/a Pedro Cotto, a/k/a John Doe Pervugo, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 271

381 N.Y.S.2d 271

51 A.D.2d 329

The PEOPLE of the State of New York, Respondent, v. Julio GARCIA, a/k/a Pedro Cotto, a/k/a John Doe Pervugo,

Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 23, 1976.

Daniel J. Bernstein, New York City, of counsel (William E. Hellerstein and William J. Gallagher, New York City), for defendant-appellant.

Bruce M. Tenenbaum, New York City, of counsel (Mario Merola, Dist. Atty.), for respondent.

Before STEVENS, P.J., and KUPFERMAN, BIRNS, CAPOZZOLI and LANE, JJ.

STEVENS, Presiding Justice:

This is an appeal from a judgment rendered September 14, 1973 in Bronx County, convicting defendant after a jury trial of the crime of selling a dangerous drug in the third degree and sentencing him to an indeterminate ten year term of imprisonment, which conviction arises out of a sale of narcotics which occurred on March 20, 1973.

At trial, Pilar Ferrer, an undercover police officer assigned to the Narcotics Division, testified that, on March 20, 1973, he was taken by a confidential informant to 725 Fox Street in the Bronx. After signing a log book in the lobby, they proceeded to apartment 5G, then occupied by defendant. Officer Ferrer testified that he gave defendant the sum of thirty-five dollars for the purchase of a quantity of heroin. Defendant sent a young boy from the apartment for the heroin while Ferrer waited in the apartment. When the boy returned and the heroin was deliver to Ferrer, the informant was not actually present, although he apparently was elsewhere in the apartment.

During Officer Ferrer's testimony, over defendant's objection, the public was excluded from the courtroom. At the conclusion of the People's case, a motion by defendant for the production of the informant was denied. The People offered to produce the informant for an In camera hearing before the judge, but the offer was rejected by the defense.

On appeal, defendant claims that he was denied a fair trial because of the failure to direct disclosure of the informant's identity; that defense counsel was unreasonably restricted in his cross-examination of the witnesses; that the prosecutor in summation commented adversely upon defendant's failure to take the stand and distorted the evidence as to the circumstances of defendant's arrest some five months after the alleged sale; that it was constitutionally impermissible to exclude the public during Officer Ferrer's testimony; and, that the sentence imposed is excessive in light of the fact that this was defendant's first narcotics offense.

The Sixth Amendment to the Constitution of the United States declares that a defendant is entitled to a speedy and public trial. Under the Fourteenth Amendment that guarantee applies to the states as well (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491). However, the right to a public trial is not an absolute right, nor does it demand such total recognition that exclusion of the general public for a relatively brief period constitutes an infringement of that right when the facts and circumstances so warrant.

Officer Ferrer, prior to and at the time of his testimony, was engaged in undercover narcotics investigations. The drug traffic is highly profitable and one engaged in ferreting out the sources of narcotics and the traffickers therein is embarked upon a dangerous venture. Disclosure of such person's identity will not only destroy his usefulness, but could jeopardize his life. Additionally, there is a sound public interest in stopping the traffic in drugs wherever possible, thereby protecting the health and promoting the general welfare welfare of the public. Under the circumstances here present, we find no prejudicial error in the discretionary exclusion of the public (People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265; People v. Hagan, 24 N.Y.2d 395, 300 N.Y.S.2d 835, 248 N.E.2d 588, Cert. den., 396 U.S. 886, 90 S.Ct. 173, 24 L.Ed.2d 161; People v. Pacuicca, Co.Ct., 134 N.Y.S.2d 381, affd., 286 App.Div. 996, 144 N.Y.S.2d 711).

Whether the identity of the informant should have been disclosed poses a different question, although some of the principles applicable to the exclusion of the general public when an undercover officer testifies might well be relevant to the judicial determination of whether or not to permit determination of the informant's identity. The identity of defendant as the seller was established by the testimony of Officer Ferrer. Since the informant was not present at the time of the actual transfer of the drugs, his testimony at most would have dealt with preliminaries. It does not appear from this record that disclosure of his identity was essential to a fair trial or even that it would have been of value to the defendant in the preparation or presentation of a defense. The role of the informant was to introduce the undercover officer to defendant and, by his presence, indicate that it was safe to deal with the officer. Beyond that, he took no active role in the proceeding either by way of instigation or encouragement. Before error or prejudicial error will be manifest, it must appear that the People's privilege of withholding disclosure was in some manner abused because disclosure would have been relevant to the crime charged and might have been helpful to the defense, or that nondisclosure materially affected the defendant's right to a fair trial (Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639). Otherwise, the flow of information which is essential to effective law enforcement would cease because of the dangers and risks involved.

According to Officer Ferrer's testimony, there were five other persons in defendant's apartment at the time of the sale. These persons presumably were known to defendant. While the People must prove the guilt of a defendant beyond a reasonable doubt and defendant is under no obligation to prove his innocence, yet disclosure of an informant's identity must appear warranted, either by an apparent weakness in the People's case or from a presentation by the defense (People v. Goggins and Brown, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41). Neither condition is met here. The offer of an In camera hearing with regard to the informant was rejected by the defense.

Defendant complains that the prosecutor in summation stated that the evidence was uncontroverted and uncontradicted and that the implication was to fault the defendant for not taking the stand. The defendant has no obligation to testify and if the inevitable or only reasonable conclusion to be drawn from such a statement was that of an adverse comment on the defendant's failure to testify, reversible error would have been committed. We do not so...