New York Law Review

Tag: confidential informant

  • People v. Liberatore, 79 N.Y.2d 208 (1992): Balancing Eavesdropping Notice with Informant Confidentiality

    79 N.Y.2d 208 (1992)

    When an eavesdropping warrant application includes a sealed informant’s statement, full compliance with CPL 700.70’s notice requirements may be balanced against the need to protect informant confidentiality; suppression is not automatically required if the defendant receives the warrant and other application materials, and the issuing judge determines ex parte that the sealed statement is not germane to the defendant’s case and that probable cause exists even without it.

    Summary

    Defendant was convicted of drug offenses based on evidence obtained through eavesdropping and search warrants. The warrants relied on information from a confidential informant whose statement was sealed by court order. Although the prosecution provided almost 300 pages of warrant-related documents, they did not provide the sealed informant’s statement. Defendant argued this violated CPL 700.70, requiring suppression of all evidence. The Court of Appeals held that while strict compliance with eavesdropping statutes is necessary, a balance could be struck between notice requirements and informant protection. The case was remitted to determine if the sealed statement was indeed irrelevant to the defendant and if probable cause existed without it.

    Facts

    A narcotics investigation in Wayne County led to an eavesdropping warrant on Noemi Dessis-Carbuccia’s phone. The warrant application included a confidential informant’s statement, which the issuing judge sealed to protect the informant and the ongoing investigation. A subsequent eavesdropping warrant was issued for Samuel K. Tambe’s phone, incorporating the Carbuccia warrant. Search warrants were then issued for defendant and his vehicles, leading to the discovery of cocaine in his car. Defendant was arrested and indicted on drug possession and sale charges, and for possession of stolen property.

    Procedural History

    Defendant was arraigned in Ontario County. He moved to suppress evidence, arguing non-compliance with CPL 700.70 because he did not receive the sealed informant statement. The motion was transferred to the issuing judge, who held a probable cause hearing and denied the motion, finding the statement not germane to defendant’s case and probable cause sufficient without it. Defendant pleaded guilty, but the Appellate Division reversed, granting the suppression motion. The People appealed to the Court of Appeals.

    Issue(s)

    Whether the People’s failure to furnish the defendant with a sealed informant’s statement, used in an application for an eavesdropping warrant, constitutes a violation of CPL 700.70 requiring suppression of all evidence derived from the warrant, even where the issuing judge determined the statement was not germane to the defendant’s case and that probable cause existed without it?

    Holding

    No, because under the unique circumstances of this case, where the issuing Magistrate sealed the informant’s statement to protect the informant’s identity and found probable cause for the warrant even without the statement, and where the defendant received all other warrant-related documents, the failure to turn over the sealed statement does not automatically require suppression. The case is remitted to the Appellate Division to determine whether the hearing court was correct in finding the sealed statement irrelevant to the defendant and whether probable cause existed without it.

    Court’s Reasoning

    The Court acknowledged the need for strict compliance with New York’s eavesdropping statute, as reaffirmed in People v. Schulz, and the purpose of CPL 700.70’s notice requirement to allow defendants to challenge the validity of eavesdropping warrants. However, the Court distinguished this case from Schulz, where there was a complete failure to provide the warrant and application. Here, the defendant received all other materials, and the existence of the sealed statement was known. The court then reasoned that the case involves a conflict between the notice requirements and the need to protect informant confidentiality. The Court noted that ex parte in camera hearings are acceptable for determining probable cause when an informant’s identity is at stake. Judge Parenti determined ex parte that the statement was not germane to defendant and that there was probable cause without it, relying on information from another informant, Munoz, whose identity was disclosed. The Court emphasized that “law enforcement officials [must] be sensitive to the fact that there must be meticulous adherence to the terms of the warrant and the statute pursuant to which it [was] issued”. The court concluded that, although the ex parte determination was not impermissible, appellate review requires that the sealed statement be included in the record. The Court remitted the case to the Appellate Division to review the factual findings of the hearing court and determine whether the sealed statement was, in fact, irrelevant and whether probable cause existed without it, thus striking “a logical and commonsense balance” between the defendant’s rights and law enforcement needs. Judge Reed’s transferring the hearing was not an error, citing People v. Guerra and People v. Tambe.

  • People v. Ortega, 78 N.Y.2d 1101 (1991): The Consequences of Ex Parte Communication with Witnesses

    People v. Ortega, 78 N.Y.2d 1101 (1991)

    A trial court’s private, off-the-record communication with a witness regarding a material issue in a criminal trial violates the defendant’s rights, even if the precise impact of the communication on the court’s ultimate decision is unclear.

    Summary

    The defendant was convicted of criminal sale and possession of a controlled substance after an undercover officer, introduced by a confidential informant, purchased cocaine from him. During cross-examination, the officer refused to reveal the informant’s identity. The trial judge then held a private, unrecorded meeting with the officer to discuss the potential disclosure issue under People v. Goggins. The New York Court of Appeals reversed the conviction, holding that the private conference violated the defendant’s rights because it was a material part of the trial, and the record did not definitively show that the conference did not influence the court’s decision regarding disclosure of the informant’s identity. The court emphasized that the lack of a record made it impossible to determine whether the officer’s statements in chambers influenced the judge.

    Facts

    A confidential informant introduced an undercover police officer to the defendant.

    The undercover officer purchased cocaine from the defendant.

    During the defendant’s trial for criminal sale and possession of a controlled substance, the undercover officer refused to disclose the identity of the confidential informant during cross-examination.

    The trial judge held an ex parte conference with the officer without the presence or knowledge of either party or counsel.

    The stated purpose of the conference was to advise the witness about a potential Goggins problem (regarding the need to disclose the informant’s identity) and to persuade him to voluntarily disclose the informant’s identity.

    Procedural History

    The defendant was convicted of two counts of criminal sale and possession of a controlled substance in the trial court.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals reversed the Appellate Division’s order and overturned the conviction.

    Issue(s)

    Whether a trial court’s ex parte communication with a witness during a criminal trial, concerning a material issue, violates the defendant’s rights when the content of the communication is unrecorded and its impact on the court’s decision is unclear.

    Holding

    Yes, because the inquiry was a material part of the trial, and there was no record to definitively show that the conference did not influence the court’s decision regarding disclosure of the informant’s identity.

    Court’s Reasoning

    The Court of Appeals found that the ex parte conference was a material part of the trial, invoking precedent such as People v. Turaine and People v. Darby which established a defendant’s right to be present during material stages of a trial. The Court emphasized the lack of a record of the conversation, stating, “There is no record, however, to show what was said in chambers or whether it contributed to the court’s decision that disclosure was not required.”

    The court reasoned that it was possible the officer presented an unrebutted view of the facts that influenced the trial court’s subsequent decision regarding disclosure. The court highlighted the potential prejudice to the defendant, noting, “At least, the conference must be viewed in that light on the present state of the record.”

    The court rejected the People’s argument that no Goggins issue was raised during the conference because the judge only intended to persuade the officer to disclose voluntarily. The court’s decision underscores the importance of transparency and the defendant’s right to be present and represented during all material stages of a trial to ensure a fair adversarial process.

  • позвонить в smith, 73 N.Y.2d 143 (1989): Дью Процесс Права Заключенных в Дисциплинарных Слушаниях

    In re позвонить в Smith, 73 N.Y.2d 143 (1989)

    В тюремном дисциплинарном производстве заключенные имеют ограниченные права на надлежащую правовую процедуру, включающие предварительное письменное уведомление о нарушении, письменное изложение доказательств, на которых основано решение, и условное право вызывать свидетелей, если это не ставит под угрозу безопасность учреждения.

    Summary

    В данном деле рассматриваются права на надлежащую правовую процедуру заключенного в дисциплинарном производстве тюрьмы, в частности право на получение письменного изложения доказательств, использованных при принятии решения, и причины отказа в вызове двух свидетелей. Суд постановил, что власти тюрьмы предоставили адекватное объяснение отказа в вызове свидетелей и что расширенное изложение доказательств, на которых основано решение, соответствовало требованиям как Конституции, так и тюремных правил. Суд также подтвердил право апелляционного отдела вернуть дело должностному лицу, проводящему слушание, для разъяснения доказательств.

    Facts

    26 октября 1987 года заключенный Джеймс Хаузер подвергся нападению в исправительном учреждении Салливана. Заявителю, также заключенному в этом учреждении, было предъявлено обвинение в совершении нападения в нарушение тюремных правил. На слушании третьего уровня сотрудник исправительного учреждения, подавший отчет о правонарушении, показал, что он разговаривал с конфиденциальным осведомителем, который был свидетелем нападения и опознал заявителя как нападавшего. Должностное лицо, проводящее слушание, также опросило осведомителя вне присутствия заявителя и без его ведома, который подтвердил эти факты и указал, что он не желает давать публичные показания из-за опасений за свою безопасность.

    Procedural History

    Заявитель обратился в Апелляционный отдел с ходатайством об отмене решения, утверждая, что власти тюрьмы нарушили его права на надлежащую правовую процедуру и свои собственные правила. Апелляционный отдел вернул дело должностному лицу, проводящему слушание, для разъяснения по поводу изложения доказательств, на которых основано решение. Апелляционный отдел отклонил ходатайство после получения расширенного изложения. Дело было передано в Апелляционный суд.

    Issue(s)

    1. Было ли отказано заключенному в надлежащей правовой процедуре из-за того, что не было предоставлено адекватное изложение доказательств, на которых основано решение?

    2. Нарушили ли власти тюрьмы правила, отказав в вызове свидетелей, запрошенных заявителем?

    3. Допустил ли Апелляционный отдел ошибку, вернув дело должностному лицу, проводящему слушание, для разъяснения?

    Holding

    1. Нет, поскольку расширенное изложение, предоставленное должностным лицом, проводящим слушание, удовлетворило требования Конституции и правил.

    2. Нет, поскольку отказ в вызове свидетелей был оправдан опасениями за безопасность учреждения и потенциальной возможностью возмездия.

    3. Нет, поскольку в деле было достаточно доказательств для поддержания решения, и возврат дела просто позволил агентству более адекватно описать характер доказательств осведомителя.

    Court’s Reasoning

    Суд постановил, что заключенный, обвиняемый в нарушении тюремного правила, которое может привести к потере кредита «примерного поведения», имеет право на минимальную защиту надлежащей правовой процедуры. Суд признал право заключенного на предварительное письменное уведомление о заявленном нарушении, а также на письменное изложение лицами, устанавливающими факты, доказательств, на которых основано решение, и причин дисциплинарного взыскания. Суд также признал условное право вызывать свидетелей, когда это не будет чрезмерно опасно для безопасности учреждения или целей исправления. Однако заключенный не имеет права на адвоката и не имеет права на очную ставку или перекрестный допрос свидетелей.

    Суд отметил, что одной из основных причин ограничения прав заключенного таким образом является необходимость снижения риска насилия между обвиняемым заключенным и теми, кто обвиняет его или предоставляет доказательства против него. Суд подчеркнул, что должностные лица тюрьмы должны иметь необходимое усмотрение, чтобы отказать в вызове свидетелей, которые могут создать риск возмездия. Кроме того, должностное лицо, проводящее слушание, может исключить определенные пункты из письменного изложения доказательств, на которых основано решение, если раскрытие информации может поставить под угрозу свидетеля.

    В отношении отказа в вызове жертвы Хаузера суд постановил, что должностное лицо, проводящее слушание, предоставило заявителю форму, подписанную жертвой, в которой он указал, что «не хочет вмешиваться» и добавил рукописное примечание, в котором говорится: «опасается возмездия». Суд постановил, что требования правила были соблюдены.

    Что касается конфиденциального осведомителя, суд постановил, что протокол показывает, что должностное лицо, проводящее слушание, опросило осведомителя в отсутствие заявителя из-за риска возмездия и отклонило просьбу заявителя о вызове осведомителя для дачи показаний вне его присутствия, потому что он уже сделал это. Таким образом, суд постановил, что в протоколе раскрывается основание для принятия решений и показано, что они были оправданы.

    Суд согласился с Апелляционным отделом в том, что должностное лицо, проводящее слушание, могло бы быть более откровенным в своем первоначальном заявлении, но расширенное заявление удовлетворило требованиям Конституции и правила. Суд отметил, что не считает роковым то, что должностное лицо, проводящее слушание, было слишком неохотно раскрывать слишком много доказательств в своем первоначальном заявлении, что было чрезмерным, но понятным в свете деликатности и новизны ситуации.

  • Matter of Perez v. Ward, 69 N.Y.2d 840 (1987): Urinalysis for Public Employees Based on Reasonable Suspicion

    Matter of Perez v. Ward, 69 N.Y.2d 840 (1987)

    A public agency may lawfully order an employee to undergo urinalysis based on reasonable suspicion of drug use, supported by substantial evidence.

    Summary

    This case involves challenges by a police officer (Perez) and correction officers (King) to their dismissals for refusing to comply with orders to submit to urinalysis based on reported drug use. The New York Court of Appeals upheld the dismissals, finding that the urinalysis orders were justified by reasonable suspicion based on information from confidential informants. The court emphasized that a public agency may order urinalysis of an employee when there is reasonable suspicion of drug use, and determined that substantial evidence supported the administrative determinations in both cases. The court found the penalty of dismissal was appropriate and rejected the petitioners’ remaining arguments.

    Facts

    Regarding Perez: A reliable confidential informant, with a history of providing accurate information, reported to the police department that Perez was using heroin. Certain allegations made by the informant were verified. On the day before the urinalysis order, the informant stated that he had just witnessed Perez using heroin.

    Regarding Melvin and Henry King: A confidential informant reported the correction officers’ use of illegal drugs at specific locations. The Inspector General’s office verified certain aspects of the information. Shortly before the urinalysis order, the informant advised the Inspector General that he had observed the officers using narcotics at the specified locations.

    Procedural History

    Perez and King separately challenged their dismissals in Article 78 proceedings. The lower courts upheld the dismissals. The cases were then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the orders for the police and correction officers to submit to urinalysis were lawful, given the standard that a public agency may order an employee to undergo urinalysis on reasonable suspicion of drug use?

    Holding

    Yes, because there was substantial evidence supporting the administrative determinations that reasonable suspicion existed to order the urinalysis in both cases.

    Court’s Reasoning

    The Court of Appeals focused on whether the “reasonable suspicion” standard for ordering urinalysis was met in each case. It highlighted the reliability of the informants and the verification of certain details they provided. Regarding Perez, the court emphasized the informant’s history of reliability and the recent sighting of Perez using heroin. Regarding the Kings, the court pointed to the informant’s report of drug use at specified locations and the Inspector General’s verification of some of that information. The court concluded that these facts constituted substantial evidence supporting the administrative determinations.

    The court referenced Pell v Board of Educ., 34 NY2d 222, indicating that the penalty of dismissal was not erroneous under the circumstances. The court explicitly stated that the parties agreed on the applicable standard – reasonable suspicion – and therefore the court did not need to rule on what the proper standard should be, focusing instead on whether that agreed-upon standard was satisfied. The court stated: “these parties have agreed that a public agency may lawfully order an employee to undergo urinalysis on reasonable suspicion of drug use. The central issue is whether, on the facts presented, that standard was satisfied here.”

    The court dismissed the petitioners’ remaining contentions as lacking merit.

  • People v. Quinones, 57 N.Y.2d 270 (1982): Admissibility of Evidence and Witness Rehabilitation

    People v. Quinones, 57 N.Y.2d 270 (1982)

    A party cannot claim error on appeal for evidentiary rulings unless a specific objection was made at trial, and a witness can be rehabilitated after an implicit claim of recent fabrication by introducing prior consistent statements.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, upholding the defendant’s conviction. The court held that the defendant’s objections to the admission of a taped conversation were insufficient to preserve the issue for appeal. Further, it found no error in allowing a police agent to refresh her recollection with notes, nor in allowing the prosecutor to rehabilitate the agent after the defense implied recent fabrication. Finally, the court determined that the prosecution’s inability to produce a confidential informant did not warrant reversal, as the informant was not an eyewitness, and their unavailability was previously explained.

    Facts

    A police agent engaged in drug transactions with the defendant. During the trial, the prosecution introduced a taped conversation between the agent and the defendant. The agent also testified, using notes to refresh her recollection. The defense cross-examined the agent regarding omissions in her “buy reports.” A confidential informant, whose identity was known to the defendant, was unavailable to testify.

    Procedural History

    The defendant was convicted. The Appellate Division affirmed the conviction. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant’s objections to the admission of the taped conversation were sufficient to preserve a hearsay argument for appellate review.
    2. Whether it was error to allow the police agent to refresh her recollection using notes.
    3. Whether it was error to allow the prosecutor to rehabilitate the agent after the defense implied recent fabrication.
    4. Whether the prosecution’s inability to produce a confidential informant warrants reversal of the conviction.

    Holding

    1. No, because the objections raised at trial were insufficient to preserve the hearsay argument for review.

    2. No, because using notes to refresh a witness’s recollection is permissible, as long as the notes are not offered into evidence.

    3. No, because when a party on cross examination implicitly asserts recent fabrication, the other party can rehabilitate the witness by eliciting testimony of prior consistent statements.

    4. No, because the informant was not an eyewitness to the drug transaction, their identity was known to the defendant, and the unavailability was explained in a prior trial.

    Court’s Reasoning

    The Court reasoned that the defendant’s objections to the taped conversation at trial (that it was “self-serving” and “not in furtherance of any conspiracy”) did not preserve the argument that it was inadmissible hearsay. The court cited People v. Gonzalez, 55 NY2d 720 in support of the proposition that specific objections are required to preserve issues for appellate review. The court further reasoned that it was permissible for the police agent to use her notes to refresh her recollection as long as the notes were not offered as evidence themselves.

    Regarding the rehabilitation of the agent-witness, the Court found that the defendant’s cross-examination opened the door for the prosecution to elicit testimony that the agent had included the defendant’s name in an earlier “buy report”. The court stated that the defense attorney had “opened the door by interrogation as to the omission of defendant’s name from her ‘buy reports’ of October 31, and November 28, 1974.” This allowed the prosecution to introduce evidence showing consistency between her testimony and her earlier reports to rebut the implication of recent fabrication.

    Finally, the Court reasoned that the absence of the confidential informant did not warrant reversal because the informant was not an eyewitness to the drug transactions, their identity was known to the defendant, and the unavailability had been explained at a prior trial. The court does not explicitly state what the explanation for the unavailability was, but this suggests that the prosecution made reasonable efforts to locate the informant.

  • People v. Clark, 54 N.Y.2d 955 (1981): Probable Cause Based on Confidential Informant Testimony

    People v. Clark, 54 N.Y.2d 955 (1981)

    A court may find probable cause for a warrantless arrest based on the testimony of a confidential informant, even without disclosing the informant’s identity to the defendant, provided the court conducts an in camera examination of the informant and the record provides a sufficient basis for the probable cause determination.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s orders, holding that the suppression court had a sufficient basis to find probable cause for the defendants’ warrantless arrest based on information from a confidential informant. The court emphasized that the suppression court complied with the procedures outlined in People v. Darden by conducting an in camera examination of the informant to maintain confidentiality while assessing the informant’s credibility. The defendants were given the opportunity to submit questions for the informant. The court concluded that the defendants, having directed their own course of action, could not later claim they were denied access to the minutes of the in camera examination.

    Facts

    The arresting officer made a warrantless arrest of the defendants. The arrest was based on information provided by a confidential informant. Prior to the arrest, the informant disclosed to the officer how they acquired personal knowledge of the relevant information.

    Procedural History

    The defendants moved to suppress evidence, arguing the warrantless arrest lacked probable cause. The suppression court denied the motion after an in camera examination of the confidential informant. The Appellate Division affirmed the suppression court’s ruling. The defendants appealed to the New York Court of Appeals.

    Issue(s)

    Whether the record before the suppression court, including the minutes of the in camera examination of the confidential informant, provided a sufficient basis to find that the arresting officer had probable cause for the warrantless arrest of the defendants.

    Holding

    Yes, because the record revealed the basis of the informant’s knowledge by detailing how the informant acquired personal knowledge, and this information was disclosed to the officer prior to the arrest.

    Court’s Reasoning

    The Court of Appeals held that the suppression court had adequately complied with the procedures specified in People v. Darden for maintaining the informant’s confidentiality while allowing the court to assess probable cause. The court emphasized that the record revealed the basis of the informant’s knowledge. It highlighted that the informant disclosed how they acquired personal knowledge to the officer before the arrest, satisfying the requirement that the information’s source and reliability be established. The court noted that the defendants were afforded the opportunity to submit questions for the court to ask the informant during the in camera examination. The court stated, “Insofar as the in camera minutes were part of the record from the court in which judgment was entered, they would properly be included in the appellate record. The denial of defendants’ motion at the Appellate Division must therefore be construed as denying only defendants’ access to those minutes.” Because the defendants had the opportunity to participate within the bounds established in Darden, they could not now claim a denial of access to the minutes of the in camera examination as a basis for reversal. The court emphasized that having “charted their own course under Darden, defendants may not now be heard to complain that they did not have access to the minutes.”

  • People v. Gilmore, 66 N.Y.2d 742 (1985): Confidential Informant Production at Trial

    People v. Gilmore, 66 N.Y.2d 742 (1985)

    A trial court need not compel the prosecution to produce a confidential informant if the defendant’s request appears to be a trial strategy ploy rather than a genuine effort to present relevant, helpful testimony, and the informant’s role in the crime was minor.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the trial court did not err in refusing to compel the prosecution to produce a confidential informant. The informant was known to the defendant, and the defense learned early in the trial that the prosecution wouldn’t call her. The defendant then absented himself from the trial. The Court of Appeals emphasized that requests for informant production must be evaluated to determine if it’s a genuine need or a trial strategy. Here, the timing of the request and the defendant’s absence suggested the latter. Furthermore, the defendant failed to specify the exculpatory testimony expected from the informant, and her role in the drug sales was minor.

    Facts

    A confidential informant, Avis Burns, introduced the defendant, Gilmore, to an undercover officer, leading to a $250 cocaine sale in Burns’ apartment on December 18, 1973. Burns was present during the transaction but in an adjoining room. A second sale occurred on January 22, 1974, at Burns’ workplace. The sale took place in the men’s room, outside Burns’ presence, though Gilmore placed a bag behind Burns’ purse before the sale. Burns had a prior narcotics arrest and faced a potential life sentence, giving her a possible motive to falsify testimony.

    Procedural History

    Gilmore was convicted of drug charges. Prior to the close of the People’s case, Gilmore’s attorney requested the production of the confidential informant, Avis Burns. The trial court denied the request. The Appellate Division affirmed the conviction, and Gilmore appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in denying the defendant’s request for the prosecution to produce a confidential informant, Avis Burns, for potential testimony.

    Holding

    No, because the timing and circumstances of the request suggested a trial strategy, the defendant failed to articulate the specific exculpatory testimony he expected, and the informant’s role in the drug sales was minor.

    Court’s Reasoning

    The Court of Appeals considered the timing of the defense’s request for production, which occurred shortly before the close of the People’s case and after the defendant had absented himself from the trial. This timing, coupled with the failure to specify the relevant exculpatory testimony Burns could provide, suggested the request was a trial ploy. The court cited People v. Jenkins, 41 N.Y.2d 307 and People v. Goggins, 34 N.Y.2d 163, emphasizing the need to weigh whether the demand for the informant is a genuine attempt to elicit relevant testimony or merely a strategic maneuver. The court also noted that Burns’ involvement in the sales was minor. Regarding the first sale, while Gilmore argued Burns could testify about whether he knew the contents of the package, he did not present this argument to the trial court. The court stated her “testimony was hardly essential to a fair trial” (citing United States v. Turbide). The court also found that there was no real issue as to identification in this case. The court reasoned that the jury was aware of the possible sentences that Burns could have faced had she not cooperated with law enforcement.

  • People v. Daniel, 48 N.Y.2d 302 (1979): Duty to Produce Confidential Informant

    People v. Daniel, 48 N.Y.2d 302 (1979)

    When a confidential informant, once under the control of law enforcement, becomes unavailable, the prosecution must make diligent efforts to produce the informant for the defense, but dismissal of the charges is only warranted if the defendant demonstrates the informant’s testimony would likely be exculpatory or create reasonable doubt.

    Summary

    Defendants Daniel and Jenkins were convicted of narcotics sales. A confidential informant, Pat Adams, was involved in the case but moved to Florida with the DEA’s assistance due to safety concerns. The defendants sought the informant’s production at trial, which the court denied. The New York Court of Appeals addressed whether the prosecution had a duty to produce the unavailable informant. The court held that while the prosecution has a duty to make diligent efforts to produce a former informant, dismissal of charges is only required if the defendant demonstrates that the informant’s testimony would likely be exculpatory or significantly impeach the prosecution’s case. The court found the defendants failed to meet this burden.

    Facts

    Defendants Daniel and Jenkins were tried together on charges stemming from the same narcotics sale. Pat Adams, a confidential informant, played a role in the events leading to their arrest.
    During cross-examination, the informant’s identity was revealed. It was also revealed that she had relocated to Florida with a plane ticket provided by the Drug Enforcement Administration (DEA) due to safety concerns. Adams later disappeared after arriving in Florida.

    Procedural History

    The defendants requested the production of the informant at trial. The trial court denied the motion, and the defendants were convicted.
    The Appellate Division affirmed the convictions. The New York Court of Appeals granted leave to appeal to determine the extent of the prosecution’s duty to produce the informant.

    Issue(s)

    Whether the People are required to produce a confidential informant who was once under their control but has become unavailable through no bad faith on the part of the prosecution, or, in the alternative, forfeit their case against the defendants?

    Holding

    No, because while the People have a duty to make diligent efforts to produce a former informant, dismissal of charges or a new trial is only required if the defendant demonstrates the informant’s testimony would likely be exculpatory or create reasonable doubt as to the reliability of the prosecution’s case.

    Court’s Reasoning

    The Court of Appeals acknowledged the defendant’s rights to confrontation, due process, and fairness, as previously articulated in People v. Goggins. However, the court also recognized that the People should not be penalized when an informant disappears on their own initiative after being released from government control.
    The court distinguished the case from situations involving bad faith removal of a witness by the prosecution, inadequate efforts to locate a missing witness, or the suppression of exculpatory evidence.
    The court established a higher burden for the defendant in cases where diligent efforts have been made to locate the informant. In such cases, the defendant must demonstrate that the informant’s testimony would likely be favorable to the defense by tending to exculpate the defendant or by creating a doubt as to the reliability of the prosecution’s case. The court referenced United States v. Agurs and Brady v. Maryland, applying a similar standard used for non-testimonial exculpatory evidence.
    The court emphasized, “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.”
    The court found that the defendants failed to satisfy the higher burden of demonstrating that the informant’s testimony would tend to be exculpatory or weaken the prosecution’s case. For example, regarding defendant Jenkins, the court noted, “there was only minimal contact between Jenkins and the informer and it is not alleged in what manner the testimony of Miss Adams could have assisted him in demonstrating his lack of knowledge of the nature of the transaction in which he was concededly engaged.”

  • People v. Adams, 43 N.Y.2d 102 (1977): Prosecution’s Duty to Grant Immunity to Informant Witnesses

    People v. Adams, 43 N.Y.2d 102 (1977)

    The prosecution is not generally obligated to grant immunity to a potential defense witness, even if that witness is an informant who could offer exculpatory testimony, unless the informant was an active participant in the crime as an agent of law enforcement.

    Summary

    Adams was convicted of drug charges. At trial, he argued entrapment and sought to call Fodderell, a confidential informant, as a witness. Fodderell, already serving a federal sentence, invoked his Fifth Amendment right against self-incrimination. The trial court urged the prosecution to grant Fodderell immunity, but they refused. Adams argued this refusal violated his rights. The New York Court of Appeals affirmed the conviction, holding that the prosecution wasn’t obligated to grant immunity because Fodderell was merely a facilitator and observer, not an active participant in the crime. The Court distinguished situations where the informant acts as an agent of law enforcement.

    Facts

    Earl Fodderell, a narcotics distributor, became a confidential informant after pleading guilty to federal charges.

    Fodderell provided information leading to the investigation of Adams and participated in planning controlled drug purchases from Adams.

    Fodderell introduced an undercover officer to Gardner, who acted as an intermediary in the drug sales, and helped arrange meetings.

    Fodderell was present at one sale where money was exchanged and details of a later transfer from Adams were arranged and may have been an eyewitness to the sale of heroin by Adams to the undercover officer.

    Procedural History

    Adams was convicted after a jury trial.

    He appealed, arguing that the prosecution’s failure to grant immunity to Fodderell was prejudicial error.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the prosecution’s failure to grant immunity to a potential defense witness who invokes their Fifth Amendment right against self-incrimination constitutes a denial of due process or the right to a fair trial when that witness is a confidential informant who could offer exculpatory testimony.

    Holding

    No, because in the circumstances of this case, the confidential informant was not an active participant in the criminal transaction, and the prosecution, therefore, had no obligation to grant immunity to make his testimony available to the defendant.

    Court’s Reasoning

    The Court reasoned that the Sixth Amendment right to compulsory process is not absolute and does not compel testimony over a valid claim of privilege, such as the Fifth Amendment right against self-incrimination. The court noted that the key consideration is whether the prosecution suppressed evidence favorable to the accused, violating due process under Brady v. Maryland. However, there was no suppression here because the defendant knew the informant’s identity and had the opportunity to interview him.

    The Court distinguished this case from situations where the informant is an active participant in the criminal transaction as an agent of law enforcement. In such cases, the prosecution might be required to grant immunity or face dismissal of the prosecution to ensure a fair trial. However, because Fodderell was merely a facilitator and observer, not an active participant, the prosecution was not obligated to grant immunity. The Court emphasized Fodderell’s limited involvement: “In the present instance, at most Fodderell was a facilitator and an observer… In short, his was the now familiar role of the informer; he was not an actor in the criminal transactions.”

    The court also rejected the argument that the defendant was prejudiced by not being able to call Fodderell to the stand and force him to invoke his Fifth Amendment right in front of the jury.

  • People v. Brown, 40 N.Y.2d 183 (1976): Warrant Based on Informant’s Reliability Established by In-Person Examination

    40 N.Y.2d 183 (1976)

    When an informant appears before a magistrate considering a search warrant application, the magistrate can assess the informant’s credibility in person, and the traditional requirement for the officer to vouch for the informant’s reliability is unnecessary.

    Summary

    This case concerns the validity of a search warrant based on information provided by a confidential informant who appeared before the issuing magistrate. A police officer applied for a search warrant based on information from an informant who claimed to have seen drugs and handguns in an apartment. The informant was brought before the judge, who spoke with him off the record and then issued the warrant. The subsequent search yielded narcotics, weapons, and cash. The defendant, arrested at the scene, argued the warrant was invalid because the officer didn’t establish the informant’s reliability in the warrant application. The New York Court of Appeals affirmed the warrant’s validity, holding that the magistrate’s in-person assessment of the informant obviated the need for the officer to vouch for the informant’s credibility.

    Facts

    A police officer applied for a search warrant for an apartment based on information from a registered police informant.

    The informant told the officer he saw drugs being packaged and handguns at the apartment on two occasions: September 5, 1972, and again on September 20, 1972.

    The officer provided the informant’s registration number and presented the informant to the judge, who spoke with him off the record.

    The warrant was issued, and a search of the apartment yielded cocaine, heroin, revolvers, drug paraphernalia, and approximately $5,000 in cash.

    The defendant, Albert Brown, was arrested at the apartment.

    Procedural History

    The defendant moved to suppress the evidence seized during the search, arguing the warrant was invalid.

    The motion to suppress was denied without a hearing.

    The defendant pleaded guilty to criminal possession of a dangerous drug in the fourth degree, satisfying an indictment charging him with weapon and narcotics offenses.

    The Appellate Division affirmed the lower court’s decision. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether a search warrant application is valid when based on hearsay information from a confidential informant who appears before the issuing magistrate, even if the police officer does not independently establish the informant’s reliability in the application.

    Holding

    Yes, because when the informant is presented to the court for examination, the court can determine credibility without the officer needing to vouch for the informant’s reliability. The court’s direct examination of the informant serves as an adequate substitute for the traditional requirement of establishing the informant’s credibility through the officer’s testimony.

    Court’s Reasoning

    The Court of Appeals applied the two-pronged Aguilar-Spinelli test for assessing hearsay information from an informant: (1) the informant’s basis of knowledge and (2) the informant’s credibility. The court noted that the first prong was satisfied because the informant claimed to have personally seen the drugs and weapons. Addressing the second prong, the court acknowledged that the officer’s testimony did not independently establish the informant’s reliability.

    However, the court reasoned that the traditional requirement to establish an informant’s reliability is a substitute approach used when the informant is not identified to the magistrate. When the informant appears before the court, the magistrate can assess credibility directly. The court emphasized that the judge noted on the record that the informant’s information “tallies” with that provided by the police officer and can be read “in a commonsense manner”.

    The court also addressed concerns about the informant’s statements not being under oath, stating that there were “adequate safeguards against the rendition of false information” because the informant could be prosecuted for falsely reporting an incident. The court also relied on the preference to be accorded warrants when the resolution of the case was “doubtful or marginal”.

    The dissenting judges argued that the constitutional requirement of “oath or affirmation” was not met for establishing the informant’s reliability because the informant’s statements to the judge were unsworn and unrecorded. They expressed concern that the decision could allow prosecutors to circumvent the requirement of proving an informant’s reliability by simply producing the informant in person before the magistrate without any sworn testimony.