81 N.Y.2d 485 (1993)
When the prosecution fails to produce a confidential informant, the defendant must demonstrate that the informant’s testimony would tend to be exculpatory or create a reasonable doubt as to the reliability of the prosecution’s case to warrant dismissal.
Summary
Defendant was convicted of criminal sale of marihuana. A confidential informant, Harvey, involved in the transaction, was unavailable at trial. Defendant moved to set aside the verdict based on Harvey’s affidavit stating defendant did not sell him marihuana. The Appellate Division remitted for a determination of the materiality of Harvey’s testimony, applying a “reasonable probability” standard. After a hearing, the motion was denied, and the Appellate Division affirmed. The Court of Appeals affirmed, holding that the defendant seeking dismissal due to the prosecution’s failure to produce an unavailable informant must show the testimony would be exculpatory or create reasonable doubt.
Facts
An undercover officer observed defendant handing a bag of marihuana to informant Harvey in exchange for $1,650. The arrest was delayed due to the officer’s involvement in another investigation and attempts to use Harvey for another transaction with the defendant. The prosecution attempted to locate Harvey for trial but was unsuccessful.
Procedural History
Defendant was convicted in County Court. He moved to dismiss the indictment, arguing the delay between the crime and arrest violated due process. He also moved to set aside the verdict based on Harvey’s affidavit. The County Court denied the motions. The Appellate Division withheld decision and remitted to County Court to determine the materiality of Harvey’s testimony. Upon remittal, the County Court denied the motion, and the Appellate Division affirmed. The defendant appealed to the Court of Appeals.
Issue(s)
Whether the Appellate Division applied the proper standard in considering whether the testimony of the unavailable informant, had he been produced at trial, would have created a different result in the outcome of the case.
Holding
Yes, because when a defendant seeks dismissal of an indictment for the prosecution’s failure to produce a witness unavailable through no intention of the prosecutors, the defendant must 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.
Court’s Reasoning
The Court relied on People v. Jenkins, which established that when a confidential informant is unavailable, the People have a duty to produce them or exert diligent efforts to do so. To compel production or dismissal, the defendant must show the informant’s testimony would be exculpatory or create reasonable doubt. The Court rejected the argument that Harvey’s subsequent statements created reasonable doubt, deferring to the County Court’s assessment of Harvey’s credibility. The Court also addressed the delay between the incident and arrest, finding it justified by ongoing investigations. Quoting People v Singer, the court stated that “a determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense.” Finally, the Court found that the trial court’s inquiry into the juror’s unavailability was proper and complied with precedent.