People v. Martinez

79 A.D.2d 661, 433 N.Y.S.2d 841, 1980 N.Y. App. Div. LEXIS 14038

Opinions

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 2, 1978, convicting him of criminal sale of a controlled substance in the second degree (two counts), upon a jury verdict, and imposing sentence. Judgment affirmed. Defendant was convicted of two separate heroin sales to an undercover officer, one each in October and November of 1976. On appeal defendant’s primary contention is that the trial court’s premature termination of an in camera hearing to determine whether a confidential informant could and should be produced at trial deprived him of his rights to confront witnesses and to a fair trial. This contention is without merit. A defendant’s right to obtain disclosure of the identity of a police informant turns on “the relevance of the informer’s testimony to the guilt or innocence of the accused” (People v Goggins, 34 NY2d 163, 170). In this case it was not an abuse of discretion to deny disclosure because the informant’s role in the actual sales was minimal and the evidence of defendant’s guilt was overwhelming. The informant’s role in the sales was to introduce the undercover officer to the seller, but he did not witness or otherwise participate in the sales (see People v Lee, 39 NY2d 388; People v Pena, 37 NY2d 642; People v Medina, 56 AD2d 582). Although defendant presented an alibi defense in his testimony, we do not believe there was a close identity question. The undercover officer observed defendant on two occasions at close range for a total of more than 30 minutes under good lighting conditions. His identification of defendant at trial was positive and unhesitating. The inconsistencies in the officer’s descriptions of defendant were minimal. Defendant was identified by voice as well as appearance, and the jury had an opportunity to listen to the tapes of what was purportedly defendant’s voice. Various other corroborative evidentiary materials were introduced. Against this, the jury was justified in rejecting defendant’s testimony (see People v Pena, supra; People v Colon, 39 NY2d 872; People v Lloyd, 55 AD2d 171, affd 43 NY2d 686). Finally, the subsequent showup identification of defendant does not cast doubt upon the undercover officer’s testimony. Aside from his substantial independent basis for identifying defendant, it was proper for the officer to have viewed defendant at a showup to make certain that the correct person had been arrested (see People v Morales, 37 NY2d 262). Even had there been an obligation to produce the confidential informant, no reversible error occurred because the prosecutor made a diligent, good faith effort to produce him and defendant failed to meet his burden of showing a need for this witness (see People v Jenkins, 41 NY2d 307). The efforts exerted over a three-day period to locate the confidential informant at his last known home address and workplace, and the efforts to locate him through addresses supplied by the Probation and “Welfare” Departments were all that could be reasonably expected. At the time the trial court denied defendant’s request for a further adjournment, the prospects for locating the witness were no more promising than they had been three days earlier. As already discussed, the value of locating the informant was dubious. In choosing to continue with the trial, then in its third week, the trial court wisely exercised its discretion so that the time lapse between the trial testimony and the jury’s deliberations would not be prejudicially long. Accordingly, the judgment is affirmed. Mollen, P. J., Hopkins and O’Connor, JJ., concur.