People v. Jones

• Decision Date: 08 January 1976
• Citation: 379 N.Y.S.2d 301,85 Misc.2d 220
• Parties: The PEOPLE of the State of New York v. James JONES, a/k/a James Lee, Defendant.
• Court: New York Supreme Court

Page 301

379 N.Y.S.2d 301

85 Misc.2d 220

The PEOPLE of the State of New York v. James JONES, a/k/a James Lee, Defendant.

Supreme Court, New York County, Part 52.

Jan. 8, 1976.

A. M. Diamond, Asst. Dist. Atty., New York City, for the people.

The Legal Aid Society by Jane Denkensohn, New York City, for defendant.

BUDD G. GOODMAN, Justice:

What does justice require when the court ascertains after jury selection and Wade hearing, that the presence of a confidential informant at the sale was deliberately withheld from the defense until trial and that his whereabouts are now unknown?

The underlying facts are not in dispute. This defendant, James Lee, was arrested on September 25, 1974 for an A--3 felony sale which is alleged to have occurred in a bathroom on May 16, 1974 at a bar in New York County. The confidential informant who led the police to the location was also present when the alleged transaction took place between the undercover officer and the defendant.

On May 12, 1975, discovery proceedings were held before Justice Leon Polsky in Part 49. In the course of formulating his decision, Judge Polsky asked the Assistant District Attorney present, 'Was there an informer present at the time of the sale who the People do not intend to call as a witness?' The Assistant District Attorney replied, 'As a witness to the sale, No there was no informer present at the sale itself.'

Counsel for the defense, Jane Denkensohn, interjected, 'Is there an indication by saying that, that there was an informer present either before or after the sale?' To this, the Assistant District Attorney replied, 'I think that is a logical inference from what I said, that there was an informant involved in this case.' He then went on to add gratuitously the following, 'The People recognize their obligation to find the whereabouts of the informant and at trial time to make him available to defense counsel; if prior to trial, the People are unable to locate that informant, to turn it over to the defense counsel.'

Judge Polsky retorted, 'That is more than I would have granted.' The Assistant District Attorney then ended the colloquy by stating, 'I think we have an obligation to keep an eye on our informants.'

In December 1975, the case was sent into Part 52 for trial with the proviso that a Wade hearing be held after jury selection but before trial, with defense counsel getting daily copy of the undercover's testimony at the hearing. During the Wade hearing, from the lips of the undercover, the Court and defense counsel learned much to their surprise that the informant was in fact a witness to the sale itself. Defense counsel immediately moved for the production of the informant, stating that identification was a key issue in the case. Counsel had served, although belatedly, a notice of alibi testimony upon the People. It was indelibly clear to the court from the undercover's testimony that his identification of Mr. Lee was scanty at best. He had only seen him in a dimly-lit bar talking to other people for a few moments, and then for about 30 seconds in the bathroom where the buy took place. P The court then questioned the case Assistant District Attorney, Mr. Diamond, as to the informant's whereabouts and was told he was missing. Upon further reflection, the court granted Mr. Diamond a continuance from Monday to Thursday to enable the People to locate and retrieve the informant for the specific purpose of an interview by defense counsel.

On Thursday morning, Assistant District Attorney Diamond advised the court that he believed the informant was in Pittsburgh. He had no idea, assuming Arguendo that the informant's wife was truthful, if he could persuade the informant to return to New York. Mr. Diamond candidly admitted that the People had no hold over the informant, nor was there any speedy procedural way to force him to return to this jurisdiction, if in fact he was there.

At this juncture, Miss Denkensohn stated that she could not adequately prepare a defense without interviewing the informant, since her client steadfastly denied his presence at the sale. She then moved for dismissal of the indictment. The court, not unmindful that the granting of such a motion might constitute jeopardy (Sec. 40.30, 1(b) of the C.P.L.), had a crucial decision to make. Did the People's actions justify the ultimate step of dismissing the indictment?

At this point, it is incumbent upon the court to reflect upon the case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, 1957, and its progeny. There, the Supreme Court held that to withhold the identity of the informant was error. The court in part said, 'A further limitation on the applicability of the privilege arises from the fundamental requirement of fairness. Where the disclosure of an informant's identity . . . is relevant and helpful to the defense of an accused . . . the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.' (353 U.S. at 60--61, 77 S.Ct. at 628).

That case was soon followed by Gilmore v. U.S. (5th Cir., 256 F.2d 565 (1958)). There, the court mandated disclosure whenever the accused cannot be afforded a fair trial without the presence of the informer. This rule is followed in the 6th Circuit, U.S. v. Hanna, 341 F.2d 906, the 9th Circuit, Hurst v. U.S., 344 F.2d 327 and the 2nd Circuit, U.S. v. Fay, 344 F.2d 625.

In January 1970, the Supreme Court of California in Eleazer v. The Superior Court of Los Angeles County, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42, took a further step by stating 'When * * * through police tactics or happenstance the informer becomes a material witness, the police should make such inquiries and arrangements as are reasonably necessary to enable the prosecution and defense to locate him.' In denying a writ of prohibition but ordering a hearing, the court En banc went on to state, 'Due process requires only that the police and the district...