People v. Ortega

Appellate Division of the Supreme Court of New York

People v. Ortega

175 A.D.2d 573

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 12, 1991

StatusPublished

This text of 175 A.D.2d 573 (People v. Ortega) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Ortega, 175 A.D.2d 573 (N.Y. Ct. App. 1991).

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— Judgment reversed on the law and new trial granted. Memorandum: Defendant was convicted, following a jury trial, of criminal sale of a controlled substance in the second degree (Penal Law §220.41 [1]), criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), and two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1], [12]). The conviction stems from defendant’s sale of a quantity of cocaine to an undercover police officer who was introduced to defendant by a confidential informant.

At trial, defense counsel repeatedly sought disclosure of the identity of the informant, but that was denied. On cross-examination by defense counsel, the officer refused to disclose the identity of the confidential informant who was with him when he purchased the cocaine. The court, apparently without the knowledge or consent of either side, conducted an in camera conference in chambers with the undercover officer in the absence of defendant and all counsel. The court subsequently placed on the record that the purpose of this conference was to advise the witness about a potential Goggins problem (see, People v Goggins, 34 NY2d 163, cert denied 419 US 1012) and to persuade him to "change his mind about disclosing” the informant’s identity.

Defendant contends that the trial court’s actions in conferring with the People’s principal witness in the absence of defendant and all counsel violated his statutory and constitutional rights to be present with counsel at all material stages of the proceeding against him (see, US Const 6th, 14th Amends; NY Const, art I, § 6; CPL 260.20; People v Velasco, 77 NY2d 469, 472; People v Cain, 76 NY2d 119, 123; People v Mullen, 44 NY2d 1, 4-5). We agree (see, People v Insogna, 28 AD2d 771, 773). When the defendant’s guilt or innocence is at issue, the decision whether the informant’s identity should be disclosed must not be resolved in an ex parte proceeding (People v Goggins, supra, at 168).

All concur, except Denman and Boomer, JJ., who dissent and vote to affirm, in the following Memorandum.

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— Judgment reversed on the law and new trial granted. Memorandum: Defendant was convicted, following a jury trial, of criminal sale of a controlled substance in the second degree (Penal Law §220.41 [1]), criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), and two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1], [12]). The conviction stems from defendant’s sale of a quantity of cocaine to an undercover police officer who was introduced to defendant by a confidential informant.

At trial, defense counsel repeatedly sought disclosure of the identity of the informant, but that was denied. On cross-examination by defense counsel, the officer refused to disclose the identity of the confidential informant who was with him when he purchased the cocaine. The court, apparently without the knowledge or consent of either side, conducted an in camera conference in chambers with the undercover officer in the absence of defendant and all counsel. The court subsequently placed on the record that the purpose of this conference was to advise the witness about a potential Goggins problem (see, People v Goggins, 34 NY2d 163, cert denied 419 US 1012) and to persuade him to "change his mind about disclosing” the informant’s identity.

Defendant contends that the trial court’s actions in conferring with the People’s principal witness in the absence of defendant and all counsel violated his statutory and constitutional rights to be present with counsel at all material stages of the proceeding against him (see, US Const 6th, 14th Amends; NY Const, art I, § 6; CPL 260.20; People v Velasco, 77 NY2d 469, 472; People v Cain, 76 NY2d 119, 123; People v Mullen, 44 NY2d 1, 4-5). We agree (see, People v Insogna, 28 AD2d 771, 773). When the defendant’s guilt or innocence is at issue, the decision whether the informant’s identity should be disclosed must not be resolved in an ex parte proceeding (People v Goggins, supra, at 168).

All concur, except Denman and Boomer, JJ., who dissent and vote to affirm, in the following Memorandum.

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175 A.D.2d 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ortega-nyappdiv-1991.

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