People v. Pena-Martinez

Appellate Division of the Supreme Court of New York

People v. Pena-Martinez

244 A.D.2d 899, 665 N.Y.S.2d 207, 1997 N.Y. App. Div. LEXIS 12242

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

DecidedNovember 19, 1997

StatusPublished

Cited by1 cases

This text of 244 A.D.2d 899 (People v. Pena-Martinez) 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. Pena-Martinez, 244 A.D.2d 899, 665 N.Y.S.2d 207, 1997 N.Y. App. Div. LEXIS 12242 (N.Y. Ct. App. 1997).

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Opinion

—Judgment unanimously affirmed. Memorandum: Following a reversal of his judgment of conviction by this Court (People v Pena-Martinez, 206 AD2d 858, lv denied 84 NY2d 938), defendant was retried and convicted of criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]) and criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]). During the retrial, the undercover officer was asked on cross-examination to disclose the name of the confidential informant who was present during meetings subsequent to the sale. Supreme Court, rejecting defendant’s contention that the question was relevant under People v Goggins (34 NY2d 163, cert denied 419 US 1012), sustained the prosecutor’s objection. Although the informant’s identity was not disclosed, a missing witness charge based upon the People’s failure to call the informant as a witness was given.

We reject defendant’s contention that the court erred in sustaining the prosecutor’s objection. While the central purpose of “the Goggins mandate * * * is to make an informant possessing material and relevant information available to the defense for examination at trial” (People v Jenkins, 41 NY2d 307, 309), Goggins does not establish that defendant has the right to disclosure of an informant’s identity to the jury without first seeking a ruling from the court. By failing to move for disclosure of the informant’s identity or to set forth a basis for disclosure, defendant failed to preserve for our review his contention that the court should have directed the prosecutor to disclose the informant’s identity (see, People v Medina, 53 NY2d 951). “Since the [prosecutor] was obviously unwilling to permit the witness to disclose the informant’s identity, it was incumbent upon defendant to seek a judicial ruling on the question if he believed that disclosure would be helpful to his case” (People v Medina, supra, at 952). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal [900]*900from Judgment of Supreme Court, Monroe County, Sheridan, J.—Criminal Sale Controlled Substance, 1st Degree.) Present—Denman, P. J., Pine, Wisner, Balio and Boehm, JJ.

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—Judgment unanimously affirmed. Memorandum: Following a reversal of his judgment of conviction by this Court (People v Pena-Martinez, 206 AD2d 858, lv denied 84 NY2d 938), defendant was retried and convicted of criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]) and criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]). During the retrial, the undercover officer was asked on cross-examination to disclose the name of the confidential informant who was present during meetings subsequent to the sale. Supreme Court, rejecting defendant’s contention that the question was relevant under People v Goggins (34 NY2d 163, cert denied 419 US 1012), sustained the prosecutor’s objection. Although the informant’s identity was not disclosed, a missing witness charge based upon the People’s failure to call the informant as a witness was given.

We reject defendant’s contention that the court erred in sustaining the prosecutor’s objection. While the central purpose of “the Goggins mandate * * * is to make an informant possessing material and relevant information available to the defense for examination at trial” (People v Jenkins, 41 NY2d 307, 309), Goggins does not establish that defendant has the right to disclosure of an informant’s identity to the jury without first seeking a ruling from the court. By failing to move for disclosure of the informant’s identity or to set forth a basis for disclosure, defendant failed to preserve for our review his contention that the court should have directed the prosecutor to disclose the informant’s identity (see, People v Medina, 53 NY2d 951). “Since the [prosecutor] was obviously unwilling to permit the witness to disclose the informant’s identity, it was incumbent upon defendant to seek a judicial ruling on the question if he believed that disclosure would be helpful to his case” (People v Medina, supra, at 952). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal [900]*900from Judgment of Supreme Court, Monroe County, Sheridan, J.—Criminal Sale Controlled Substance, 1st Degree.) Present—Denman, P. J., Pine, Wisner, Balio and Boehm, JJ.

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244 A.D.2d 899, 665 N.Y.S.2d 207, 1997 N.Y. App. Div. LEXIS 12242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pena-martinez-nyappdiv-1997.

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