People v. Simpson

47 A.D.2d 665, 364 N.Y.S.2d 198, 1975 N.Y. App. Div. LEXIS 8867

Opinion

Appeal by defendant from .a judgment' of the -County Court,-Nassau County, rendered April 2, 1974, convicting him of crimi-, nal possession of a dangerous drug.in;the third degree (two .counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new-trial ordered. • No determinati<$H has.'been made, with respect to the facts. The trial court .-.erred in its failure to require disclosure'of the identity of -a police informant. A police officer testified that, he, in tSe company pf the informant; went tqan apartment where be arranged to purchase a large quantity of mark juana from defendant. Another' person, one Tiritle, was arrested hi, another room of the apartment. Defendant testified .that’he had been in-the apartment, hut was there) to purchase marijuana' from. Tintlé who, like defendant, wore a beard... He saw) thA police officer andranother man in the apartment,, but did not off<ir, to. sell them marijuaria; nor did he possess marijuana in the apartment. .The prosecution’s ."privilege to'withhold disclosure of the identity, of an informant mtist" give way “ where tiré-disclosure of an informer’s identity * * *- ,is relevant-and "helpful to the. defense of- an. aeeused," or is essential tó a-fair determination of a Causé,” ¿Roviaro v. United States, 353 U. S. 53, • 60-61). In this case, a closely contested fact issue was presented, as to' whether the seller Had been Tint{e dr. defendant.) Under these circumstances, the failure to order disclosure .was'erroneous and requires that' a new' trial "be ordered (see People v. Goggins, 34 N Y 2d .163), Cohalan, Acting P.. J,, Brennan, -Benjamin,» Munder and Shapiro, jJ., concur,