People v. Jenkins

• Decision Date: 10 February 1977
• Citation: 360 N.E.2d 1288,392 N.Y.S.2d 587,41 N.Y.2d 307
• Parties: , 360 N.E.2d 1288 The PEOPLE of the State of New York, Respondent, v. Thomas JENKINS, Appellant. The PEOPLE of the State of New York, Respondent, v. John DANIEL, Appellant. The PEOPLE of the State of New York, Respondent, v. Benjamin LAW, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 587

392 N.Y.S.2d 587

41 N.Y.2d 307, 360 N.E.2d 1288

The PEOPLE of the State of New York, Respondent, v. Thomas JENKINS, Appellant.

The PEOPLE of the State of New York, Respondent, v. John DANIEL, Appellant.

The PEOPLE of the State of New York, Respondent, v. Benjamin LAW, Appellant.

Court of Appeals of New York.

Feb. 10, 1977.

Peter L. Yellin, Public Defender, Rochester (Edward J. Nowak, Rochester, of counsel), for appellants in the first and second above-entitled actions.

Lawrence T. Kurlander, Dist. Atty. (Michael Nelson, Rochester, of counsel), for respondent in the first and second above-entitled actions.

Peter L. Yellin, Public Defender, Rochester (Andrew C. Fine, Rochester, of counsel), for appellant in the third above-entitled action.

Lawrence T. Kurlander, Dist. Atty. (Edward J. Spires, Rochester, of counsel), for respondent in the third above-entitled action.

GABRIELLI, Justice.

The primary issue on this appeal is the obligation of the People to produce at trial a confidential informant once in the control of the police, who has become unavailable through no intention of the prosecutor, but through the otherwise excusable or justifiable act of the prosecutor. Because the charges against them arose from the same transaction involving the sale of narcotics, the defendants were tried together. The identity of the confidential informant, Pat Adams, was revealed on cross-examination of prosecution witnesses and at the close of the People's case, the defendants sought the production of the informant. It was revealed that she had moved to Florida, having departed New York by means of a plane ticket provided by the Drug Enforcement Administration. The trial court denied defendants' motion for production of the informant stating that, while disclosure was required in this case, it would not be appropriate to require production. The defendants were convicted of the criminal sale of narcotics, and the convictions have been affirmed by the Appellate Division.

In People v. Goggins, 34 N.Y.2d 163, 169--170, 356 N.Y.S.2d 571, 575, 313 N.E.2d 41, 44, cert. den. 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286, we articulated standards governing the disclosure of the identity of a confidential informant, indicating that the defendant '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' and that 'the truly crucial factor in every case is the relevance of the informer's testimony to the guilt or innocence of the accused' (see, also, People v. Pena, 37 N.Y.2d 642, 644--645, 376 N.Y.S.2d 452, 453--454, 339 N.E.2d 149--151). We also stated that production of the witness 'if appropriate' may be directed by the court. Goggins did not treat with the problems arising from the unavailability of the informant to both the prosecution and the defense at the time of trial.

We emphasize that the right to production does not flow from the right to disclosure (see United States v. Gentile, 5 Cir., 495 F.2d 626; United States v. Super, 2 Cir., 492 F.2d 319, cert. den. Sub nom. Burns v. United States, 419 U.S. 876, 95 S.Ct. 139, 42 L.Ed.2d 115; Wilson v. United States, 9 Cir., 409 F.2d 184, cert. den. 395 U.S. 983, 89 S.Ct. 2146, 23 L.Ed.2d 771; United States v. Cimino, 2 Cir., 321 F.2d 509). However, once the Goggins test is satisfied, where an unavailable informant is or has been under the employ or control of law enforcement authorities, the People have a duty to produce the informant or exert diligent efforts to effect the production of the informant for the defense. This follows almost apodictically from the Goggins mandate, the essential purpose of which is to make an informant possessing material and relevant information available to the defense for examination at trial. The difficulty arises, however, when reasonable efforts to locate the informant prove unsuccessful. In this case we do not have a situation where the People intentionally removed the informant from the jurisdiction in order to prevent her from testifying at trial (e.g., Hernandez v. Nelson, D.C., 298 F.Supp. 682, affd. 9 Cir., 411 F.2d 619). The record does not suggest any such 'sinister motive' or bad faith on the part of the prosecution in assisting the informant to move to Florida (see, e.g., United States v. Super, 492 F.2d 319, 321, n. 2, Supra; United States v. Noah, 9 Cir., 475 F.2d 688, 691, n. 2). While law enforcement authorities provided funds which enabled the informant to leave Rochester, she decided on her own initiative to move to Florida because of her stated fear for her own personal safety. ¹ Moreover, there is no indication that the People were in any way responsible for the informant's ultimate disappearance following her arrival in Sanford, Florida. ²

The Trial Judge found that the prosecution undertook diligent efforts to locate the missing informant through the services of New York, Florida and Federal law enforcement agencies. Thus, the question presented in this case is whether, under these circumstances, in light of the efforts to locate the informant on the part of the People and in the absence of bad faith, the People may be required to produce an unavailable informant who had previously been under their control or, in the alternative, forfeit their case against the defendants.

The ultimate concern, as Goggins aptly articulated, is the defendant's 'right of confrontation, due process, and fairness' (Supra, 34 N.Y.2d p. 168, 356 N.Y.S.2d p. 574, 313 N.E.2d p. 43). At the same time, the People should not be penalized when the informant has, on his or her own initiative, effectively disappeared after relinquishment of government control. Thus, in order to compel production, or dismissal of the charges under the circumstances presented in this case, we conclude that the defendant must meet a higher burden and demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution's case either through direct examination or impeachment. While this approach has been utilized in situations involving nontestimonial exculpatory evidence withheld by the prosecution (see, e.g., United States v. Agurs, 427 U.S. 97, 108--110, 96 S.Ct. 2392, 2400--2401, 49 L.Ed.2d 342; Brady v. Maryland, 873 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215), we think it should apply here where a defendant seeks the production of a witness alleged to have been under the control of the People.

In sum, we are not here concerned with a case dealing with a bad faith removal of a critical or material witness. Nor, of course, does this case involve inadequate efforts to ascertain the whereabouts of a missing material witness who was once under the control of the People and whose disappearance was in any fashion due to such prosecutorial bad faith. Likewise, we are not here involved with an obligation to produce any claimed or demonstrated exculpatory nonwitness evidence as in Brady v. Maryland (supra) or United States v. Agurs (supra). Requirements to disclose the identity of an informant, to produce exculpatory nontestimonial evidence or to produce a witness under prosecutorial control touch tangentially upon the question presented in this case. However, we are not here directly concerned with the rules governing these situations for, although they too are concerned with the relevance and materiality of the evidence sought with respect to the question of guilt, each of these situations is subject to somewhat differing standards.

We intend by our holding to make it clear that if it is demonstrated that the prosecutor once had the informant under his control and was responsible for his disappearance, there should be a duty to produce and if this be impossible of accomplishment, then he may be faced with dismissal of the charge, or a new trial may be appropriate. However, if the prosecutor exerts reasonable good faith efforts to make the witness available, then neither dismissal of the charges may be ordered nor a new trial directed unless the defendant demonstrates affirmatively that the testimony of the informant was not only relevant but also that it is likely to have been favorable to some degree in tending to exculpate the defendant or, alternatively, he must show the existence of a significant likelihood that the witness' testimony could be impeached to a meaningful degree creating a doubt as to the reliability of the prosecutor's case.

Here the defendants demonstrated that the informant might give relevant testimony on a material issue, but they failed to satisfy the higher burden of establishing a likelihood that her testimony would tend, to a significant degree, to exculpate them to the extent that there should be a dismissal or a new trial.

Thus, each of the defendants initially had the burden of demonstrating the materiality and relevance of the informant's testimony to his case under Goggins. The Trial Judge held that this burden was satisfied in this case and we do not disturb that conclusion based on the exercise of sound discretion. Once that burden is satisfied, the defendants were entitled to disclosure of the informant's identity and, at least, diligent efforts toward the production of an unavailable informant once under the control of the Peopel. An absolute duty of production, or, alternatively, dismissal of the prosecution's case, is required only where the People have intentionally procured the disappearance of the informant when they knew or should have known that the testimony would be material and relevant to the defense, or have exerted inadequate efforts to locate the informant, to avoid his or her presence at trial.

In the case where diligent efforts have been exercised, however, a defendant must satisfy a higher standard of materiality and relevance. In the instant cases, where it was found that such...