People v. Castro , 29 N.Y.2d 324 ( 1971 )

Breitel, J. (dissenting).

I agree entirely with the dissenting opinion by Chief Judge Fuld. It is desirable to add only that the argument by the majority that the prophesied detail provided by the alleged informer, proven correct, supported the reliability of the informer is the purest circular reasoning. It assumes, although the assumption is elided, the existence of the alleged informer, an issue to which the disclosure of the identity of the informer is addressed. If there were no informer, the testimony of the officer would have been the same. If perchance the informer had not so prophesied concerning the detail which the majority finds so convincing, the defense, without disclosure of the identity of the informer, would have no way of showing that the informer had not or could not have given such information to the police.

Accordingly, I dissent and vote to reverse and remit the action for a further hearing on the motion to suppress with opportunity to the People to be relieved of the improvident stipulation which excludes the dropping of the cigarette package as a relevant and essential circumstance to establish probable cause.

Judges Scileppi, Bergan and Jasen concur with Judge Gibson ; Chief Judge Full dissents and votes to reverse in an opinion in which Judges Burke and Breitel concur; Judge Breitel dissents in a separate opinion in which Judge Burke also concurs.

Order affirmed.