People v. Goggins , 346 N.Y.S.2d 381 ( 1973 )

Shapiro, J.

The defendant’s conviction of various counts of an indictment involving the sale and possession of narcotics stems from two sales allegedly made by him to an undercover police officer, Luther Barnes. On the first occasion Barnes allegedly had a conversation with the defendant inside a bar and then went outside with him to consummate the sale. On the second occasion Barnes met the defendant inside the bar and motioned to him and they both went outside, where they consummated another sale.

Other police officers operating as Barnes’ back-up team were unable to make independent identifications of the defendant as the man they had seen in conversation with Barnes. During cross-examinations, Barnes testified that on the occasions of the sales he was accompanied to the bar by an informer who allegedly introduced him to the defendant and told the latter,4 4 Abdul, take care of my man.” The Trial Justice ruled that the informant’s name did not have to be disclosed, as he was not present during the actual commission of the crimes.

The defendant was not in possession of any narcotics at the time of his arrest. He was employed as a hand baker at the times in question and had never previously been convicted of a crime. He contended that his implication in the charges against him was a case of mistaken identity. Under these circumstances, we hold that the trial court’s refusal to compel disclosure of the informant’s name, so that he could be produced as a witness by the defendant, constituted reversible error necessitating '-cw trial.

In Roviaro v. United States (353 U. S. 53), the court recognized the public purpose to be served in protecting the identity of informants, but expressly held that where the informant, as in that case, had played an active role in bringing about the petitioner’s arrest for possession of narcotics and was present with the petitioner at the time of the occurrence of the alleged crime, justice and fair play required his disclosure. Said the court (pp. 60-62):

“A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. * * *

“ We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

In making such a balance in this case, we have concluded that disclosure of the informant’s identity should have been ordered. Although the informant was not present at the actual sale, he allegedly introduced Barnes to the defendant and was present in the bar on each occasion when Barnes met the defendant. In the absence of other identification testimony, and in light of the defendant’s denial that he had ever met Barnes, it is clear that disclosure of the informant’s identity so that he could be called as a witness on the issue of mistaken identification is essential to a fair determination of this case.

We need not, in this case, set forth a general rule as to whether disclosure, when required, should take place in open court or at an in camera hearing. In Alderman v. United States (394 U. S. 165, 182-183, n. 14), there is an indication that compliance with Roviaro (supra) may be accomplished at an in camera hearing. (See concurring opinion by Hopkins, J., in People v. Delgado, 40 A D 2d 554, for a discussion of procedures to be followed at such a hearing.)

In the Federal system, the Third and Sixth Circuits of the Court of Appeals have remanded cases to the trial courts for in camera hearings in situations in which the informants were allegedly active participants in the criminal activities. The purpose of the hearing in each case was to determine whether the informant’s testimony would have been material and helpful to the defendant in preparing his defense and whether the informant would have been available to testify (see United States v. Lloyd, 400 F. 2d 414 [6th Cir.] ; United States v. Jackson, 384 F. 2d 825 [3d Cir.]). However, later, in United States v. Barnett (418 F. 2d 309), the Sixth Circuit, in a similar case, reversed and ordered a new trial because of the failure to call the informant and no mention was made of the possibility of an in camera hearing; nor did it refer to its earlier cases on the subject.

Other circuits of the Court of Appeals, in cases in which the informants were witnesses to the transactions, have simply reversed and ordered new trials, without directing an in camera hearing (see, e.g., Velarde-Villarreal v. United States, 354 F. 2d 9 [9th Cir.]; Lopez-Hernandez v. United States, 394 F. 2d 820 [9th Cir.]; Gilmore v. United States, 256 F. 2d 565 [5th Cir.]; cf. United States v. Roberts, 388 F. 2d 646 [2d Cir.]).

As the informant’s testimony here will be concerned with the identification of the defendant and cannot well be given without a direct confrontation, a remand for an in camera hearing, even if otherwise proper, would not be feasible. In any event, if, contrary to the defendant’s claim that he knows of no informgr because he was never introduced to Barnes, the latter is telling the truth, there would be no public purpose served in withholding the name of the informer, since his identity would already be known to the defendant.

Accordingly, the judgment of conviction should be reversed, on the law, and a new trial ordered.