People v. Pena
| Decision Date | 29 July 1974 |
| Citation | 357 N.Y.S.2d 899,45 A.D.2d 1038 |
| Parties | The PEOPLE, etc., Respondent, v. Domingo PENA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before GULOTTA, P.J., and HOPKINS, MARTUSCELLO, SHAPIRO and CHRIST, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 28, 1972, convicting him, after trial, of criminally selling a dangerous drug in the third degree (two counts) and criminally possessing a dangerous drug in the fourth and sixth degrees (four counts) and imposing concurrent terms of 5 to 15 years, 2 1/3 to 7 years, and 1 year, respectively. He is presently serving his sentence.
Judgment reversed and new trial ordered.
In this case the court held an In camera hearing to determine whether there was in fact an informer. He decided that there was on the basis of the police officer's testimony that the informer was registered with the police department. However, he refused defendant's request that the name of the informer be disclosed so that the latter could be called as a witness. In view of the undisputed fact, as testified to by the police officer, that he was introduced to the defendant by the informer, the words of Judge Wachtler in People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41, affg. 42 A.D.2d 227, 346 N.Y.S.2d 381 apply. He there said (pp. 169--170, 356 N.Y.S.2d p. 576, 313 N.E.2d p. 44):
'On this point the nature of the informant's role is of some significance. Undoubtedly the strongest case for disclosure is made out when it appears that the informant was an eyewitness or a participant in the alleged crime. (Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, Supra.) But disclosure of the informant's identity may also be appropriate when, by introducing the parties to each other or performing some other preliminary function he may be considered to have been
While in this case the defendant did not take the stand he produced some evidence, albeit weak, through the testimony of his aunt that he was elsewhere at the time and place when the police said the drug transaction took place.
Under the circumstances People v. Goggins, Supra, requires that the judgment appealed from be reversed and a new trial be had at which the informer can be produced.
In our opinion the trial court correctly refused to permit disclosure of the identity of the informant who introduced the undercover...
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People v. Pena
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People v. Pena
...1975 the Court of Appeals reversed the order of this court and remitted the case to this court for review of the facts (People v. Pena, 45 A.D.2d 1038, 357 N.Y.S.2d 899, revd., 37 N.Y.2d 642, 376 N.Y.S.2d 452, 339 N.E.2d Judgment affirmed. The trial court properly refused to compel disclosu......