# Petition for Writ of Certiorari — New York v. Goggins

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 1012

## Text

IN THE MICHAEL RODAK, JF..CLERN

Supreme Court of the United ‘States
OCTOBER TERM, 1974

No. "74 ~ 9 5 4
THE PEOPLE OF THE STATE OF NEW YORK,
Petitioner,
a: pn
PHILLIP GOGGINS,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE NEW YORK COURT OF APPEALS

EUGENE GOLD
District Attorney, Kings County
Attorney for Petitioner
400 Municipal Building
Brooklyn, New York 11201
(212) 643-5100

ROGER BENNET ADLER
Assistant District Attorney
Of Counsel

SD

INDEX

rere err err yr eer ere eT ee ee
SI MT UN aca du wes doeesneawasscdisbane
PUNE, Away ndddscbecabanewkssdnesneasas
yr reer Tyee eee rere
Constitutional Provisions Involved ..............
ROG GE Uk nic new esc den edcdsveassacces

PoINT I—Disclosure of the confidential informant’s
identity was constitutionally and procedurally un-
warranted. The Court of Appeals has miscon-
strued, misapplied, and overly extended this
Court’s decision in Roviaro v. United States (353
U.S. 53) far beyond constitutional imperatives ..

PoINT II—Jn camera examination of a confidential
informant as a condition precedent to the revela-
tion of his identity is neither violative of the right
of confrontation nor the right to the effective as-
ST EE cad a dexesucssecesacesnctes

a ee a a eee ene uhes

APPENDIX

A—Opinion of the Court of Appeals, State of New
EER rer eer rT et Tey eee

B—Order of Reversal of the Appellate Division,
Second Department .......cccccccsescces

C—Opinion of the Appellate Division, Second De-
EU Ske cease ned ecunaatacvecrenee

13

ii

CITATIONS
PAGE
Cases:
Alderman v. United States, 394 U.S. 165 (1969) 12
Brady v. Maryland, 373 U.S. 83 (1963) ...... 7, 8
Gilmore v. United States, 256 F.2d 565 (5th Cir.

SEED: Khon ends cncudenceendukessenaee ens 7
Jencks v. United States, 353 U.S. 657 (1957) ... 12
McLawhorn v. State of North Carolina, 484 F.2d

me. ok: | errr reer ser 11
People v. McShane, 50 Cal. 2d 802, 330 P.2d 33

| PEE er re re ere ore Te ee 7
Price v. Superior Court, 83 Cal. Rptr. 369, 463

a fw Se Ee 8 err 8

Roviaro v. United States, 353 U.S. 53 (1957)
2, 4, 5, 7,9, 12

State v. Davis, Mo., 450 S.W. 2d 168 (1970) .... 8
State v. Roundtree, 118 N.J. Super. 22, 285 A.2d

i: | er rrr re ere 8
United States v. Alvarez, 472 F.2d 111 (9th Cir.

1973) cert. den. 93 S. Ct. 2742 (1973) ....... 6
United States v. Bell, 464 F.2d 667 (2d Cir. 1972),

cert. den. 409 U.S. 991 ......... Ricacianes 11
United States v. Clark, 482 F.2d 103 (5th Cir.

er Pee rer TT Teer eT Tee errr 6
United States v. Davis, 487 F.2d 1249 (5th Cir.

PEEL San diceer eck vaauerieesccu nace 6

United States v. Day, 384 F.2d 464 (3d Cir. 1967) 11
United States v. Hurse, 453 F.2d 128 (8th Cir.
EE, 3k ks dcr eee ohackaneeuecuses 6
United States v. Jackson, 384 F.2d 825 (8d Cir.
1967), cert. den. 392 U.S. 9383 ............. 11

iil

PAGE
United States v. James, 466 F.2d 475 (D.C. Cir.
SN ca kus san eseeeanenkds ceun eens 6
United States v. Kelly, 499 F.2d 329 (9th Cir.
SOTO) ied cwakeee Kane wee the ows ea nees sess 6
United States v. Lopez, 328 F. Supp. 1077 (E.D.
he >) er ree er re 11
United States v. Poms, 484 F.2d 919 (4th Cir.
SE gc cb ckcann che re eRes away oes eeneees 6
United States v. Ortega, 471 F.2d 1350 (2nd Cir.
NE cana ct anevesueesak ene sane sees. 6
United States v. Roberts, $83 F.2d 646 (2d Cir.
| rrr errr rer etre res, 8
United States v. Russ, 362 F.2d 843 (2d Cir.
1966), cert. den. 385 U.S. 923 (1966) .......- 6
United States v. Skeens, 499 F.2d 1066 (D.C. Cir.
EE Sg ace ceed shan ncunee ew eeueeees 6
United States v. Soles, 482 F.2d 105 (2d Cir.
rere re eee eT eee 7
United States v. Winters, 420 F.2d 528 (3d Cir.
NE ica vnea hess covexs susan een thea 11
United States ex rel Abbott v. Twomey, 460 F.2d
A400 (7th Cir. 1972) ......--- cece eee ee eeees 6
UNITED STATES CONSTITUTION
Sixth Amendment .......-----eee eter eeeereees 2,10
MISCELLANEOUS
Amended Proposed Federal Rules of Evidence, for
the United States District Courts and Magis-
trates, Rule 510 (56 F.R.D. 183, 255) ......---- 10, 12

Williams, The Defense of Entrapment and Related
Problems in Criminal Prosecution, 28 Fordham L.
Rew SOD (IDE) 5 cia vc sc cnee cee ceanssusesoens 13

IN THE

Supreme Court of the United States

October Term, 1974

No.

THE PEOPLE OF THE STATE OF NEW YORK,
Petitioner,

—_ a

PHILLIP GOGGINS,
Respondent.

Ss
a a

PETITION FOR A WRIT OF CERTIORARI TO
THE NEW YORK COURT OF APPEALS

Statement

The District Attorney of Kings County, on behalf of
the People of the State of New York, petitions for a writ
of certiorari to review a Seay of the Court cf Appeals
of the State of New York'which affirmed an order of the
Appellate Division, Second Department which reversed
a judgment of conviction rendered in Supreme Court,
Kings County convicting Respondent of the sale and pos-
session of dangerous drugs.

*® Decided May 1S 1974,

bo

Opinions Below

The opinion of the Court of Appeals (Appendix A, pp.
la-14a) is reported at 34 N Y 2d 163. The opinion of the
Appellate Division, Second Department (Appendix C, pp.
17a-24a) is reported at 42 A.D. 2d 227.

Jurisdiction

The jurisdiction of this Court is invoked under 28 U.S.C.
1257 (3).

Questions Presented

1. Did the New York Court of Appeals misconstrue and
overly extend this Court’s holding in Roviaro v. United
States (353 U.S. 53), by requiring the State to reveal the
identity of its confidential informant who merely acted as
a catalyst in a prosecution for the sale and possession of
dangerous drugs?

2. Whether the confrontation and counsel clauses of the
Sixth Amendment prohibit in camera examination of a
confidential informant as a condition precedent to a finding
that the informant could offer relevant and helpful in-
formation to the defense and prior to revelation of the in-
formant’s identity?

Constitutional Provision Involved
The Sixth Amendment to the United States Constitution
provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses

against him... and to have the assistance of coun-
sel for his defense.”

Statement of Facts

PATKOLMAN LUTHER BARNES a member of the New York
City Police Department’s Narcotics Division was utilized
in an undercover capacity. Dressed in the garb peculiar
to buye:s of drugs his job required that he associate him-
self with known narcotic pushers and to purchase narcotics
from them. Prior to the investigation and prosecution at
bar, Barnes had made approximately one hundred danger-
ous drug purchases in the course of his duties.

On March 18, 1970 while working with a team of nar-
cotics officers he entered a bar and grill with his confidential
informant. The Jatter introduced Barnes to Goggins telling
Goggins, “Abdul (Goggins) take care of my man
(Barnes).” Barnes ascertained from Goggins that in ex-
change for $15, he would receive seven glassine envelopes
containing heroin. The terms being agreeable the trans-
action took place outside the bar and grill and at a time
when neither the actions or words of buyer or seller could
be seen or heard by the informant.

Some five days later Barnes and the informant returned
to the bar and grill. Goggins recognized Barnes and mo-
tioned for Barnes to come outside with him; Barnes did.
Once again the purchase price was seven glassine envelopes
for $15 and again the informant was not present during
negotiations or at the sale.

Pursuant to a descriptien supplied by Barnes, members
of the backup team took Goggins into custody. Barnes

confirmed that the correct person had been arrested by
cruising past the arrest scene, outside the bar and grill,
and signalling with his headlights that they had the right
man. No drugs were found on Goggins’ person when he
Was arrested.

At trial the prosecution’s case consisted of Barnes’ testi-
mony concerning his words and deeds with Goggins. De-
tective Lorenzo, a member of the backup team was able to
corroborate some of Barnes’ testimony but was unable to
see the actual transfer.

The prosecition’s case did not go unrebutted. Mary
Goggins, the defendant’s wife claimed that he was at home
_t the time the sales transpired. Respondent was sworn and
testified in his own behalf. He denied using or selling drugs
and insisted he was not even at the bar and grill on the
dates in question. Following closing statements and the
court’s charge, guilty verdicts were returned on all counts.

ARGUMENT

POINT I

Disclosure of the confidential informant’s identity
was constitutionally and procedurally unwarranted.
The Court of Appeals has misconstrued, misapplied,
and overly extended this Court’s decision in Roviaro v.

United States (353 U.S. 53) far beyond constitutional
imperatives.

Roviaro Vv. United States, (353 U.S. 53 (1957)) teaches
that the privilege not to disclose a confidential informant’s
identity calls for a balancing of the public interest in pro-

tecting the flow of information to government as and
against the individual’s right to prepare his defense. As
with any balancing test, when the particular facts of any
given criminal litigation are coupled with varying applica-
tions by appellate courts, different conclusions are suscepti-
ble of being reached. The case at bar, however, is of signal
import because in applying the balancing test, the appellate
courts of New York have travelled well beyond the para-
meters of Roviaro and its progeny, not for reasons of pe-
culiar New York law, but in the belief that Roviaro deemed
that they must. To this extent the New York courts have
been mistaken and place New York in conflict with most
federal appeals courts.

At the outset it should be noted that the informant in the
Roviaro case played a material part in bringing about the
transaction which was the subject of Roviaro’s indictment.
Indeed, the informant was actually present at the occur-
rence of the crime and was the witness in closest proximity
to Roviaro during the transaction in question. The in-
formant in Goggins was never present when the drug sales
transpired and thus was not in a position to give relevant
and competent testimony concerning what eventually tran-
spired between Goggins the drug seller and undercover of-
ficer Barnes. *

It is also highly significant that in Roviaro the informant
was the sole participant, other than the accused, in the
transaction charged (Roviaro v. United States, supra p.
64) whereas in Goggins the state produced its actual parti-

* We agree with Judge Jasen’s characterization in his dissenting
opinion in the Court of Appeals of the informant as a mere cata
lyst (14-a).

cipant in the transaction. Significantly, the sales in ques-
tion occurred on a face-to-face manner on two separate oc-
casions thus rendering the intimations of Judge Wachtler
thet identification witnesses existed, unfounded.*

At the outset it must not be overlooked that the burden is
upon the accused to demonstrate why the privilege of non-
disclosure should give way (United States v. Alvarez, 472
F.2d 111, 113 (9th Cir. 1973) cert. den. 93 S. Ct. 2742
(1973); United States v. Kelly, 449 F.2d 329, 330 (9th
Cir. 1972) ).

It has long been the practice in the federal courts not to
mandate disclosure where the informant played a minor
role in the criminal transaction. Thus when the informant
neither witnessed the crime nor transacted the criminal
business with the defendant, disclosure has been denied
(United States v. Russ, 362 F.2d 843, 844-845 (2d Cir.
1966), cert. den. 385 U.S. 923 (1966); United States v.
Ortega, 471 F.2d 1350, 1357-1359 (2d Cir. 1972); United
States v. Skeens, 449 F.2d 1066, 1970 (D.C. Cir. 1971);
United States v. James 466 F. 2d 475, 477 (D.C. Cir.
1972) ; United States v. Poms, 484 F. 2d 919, 922-923 (4th
Cir. 1973); United States v. Clark, 482 F. 2d 103, 104 (Sth
Cir. 1973): United States ex rel Abbott v. Twomey, 460
F. 2d 400, 402-403 (7th Cir. 1972) ; United States v. Hurse,
453 F. 2d 128 (8th Cir. 1972); United States v. Kelly, su-
pra); United States v. Davis, 487 F.2d 1249, 1251-1252
(5th Cir. 1973) ).

* It should not be overtcoked. as Judge Jasen noted in his dis-
senting opinion in the Court of Appeals. that the state made no
use at trial of what the informant did or said. The existence of
an informant was brought out during the cross-examination of
agent Barnes (12-a, n1)

Sax

It would appear that where one neither participates in
the actual exchange of drugs, nor witnesses the actual
transfer, the informant is simply not in a position to ren-
der the relevant or helpful testimony which the United
States Supreme Court envisioned in Roviaro.* Any infor-
mation concerning the Goggins-Barnes transaction could
only have been garnered by the informant from hearsay
sources. The informant was not present when Barnes pur-
chased the drugs from Goggins. He neither heard nor saw
what transpired between buyer and seller. It is nothing
more than the rankest speculation to assume that the in-
formant could offer relevant and competent testimony for
the defense. Absent some factuai allegation that the in-
formant! is in a posicion io offer evidence of an exculpatory
or heipful nature ‘Lrady v. Maryland 373 U.S. 83 (1963) )
the trial judge should be deemed to have acted within his
discretion in denying disclesure (United States v. Soles,
482 F.2d 105, 109 (2d Cir. 1973).

The majority opinion of the Court of Appeals cited three
decisions (5a) wherein it ciaimed that where the informant
played the role of an active parucipant in setting the stage,
motions for disclosure were proper. As will be developed,
the cases, we feel, are distinguishable. The ruling in Gil-
more ¥. United States, 256 F.2d 565 (Sth Cir. 1958) re
quiring disclosure followed because the informant set the
stage for the drug transfer, created an atmosphere of con-
{fidence between transferor and transferee, and was with-
in hearing range. The informunt’s placement in close proxi-
mity to a conversation critical to the question of Gilmore’s
crimina! liability was sufficient to require his testimony
concerning the overheard conversation.

# See People v. McShane, 50 Cal. 2d 802, 330 P. 2d 33, 36
(1958).

The Court of Appeals’ reliance upon the holding in United
States v. Roberts, 388 F. 2d 646 (2d Cir. 1968) is mis-
placed. The Court of Appeals reversed an order of the
District Court and remanded for an evidentiary hearing
on the issue whether, apart from the cross-examination ox
a Government agent, an inquiry concerning an informant’s
whereabouts was made of responsible Government person-
nel, and if so, whether that inquiry alone or in conjunction
with the interrogation of the agent, amounted to a sufficient
request by the defense for the informant’s whereabouts.
The trial judge’s posture on a post-judgment motion for a
new trial, and not a review of Judge Cannella’s application
of Roviaro mandated the remand for further proceedings.

Similarly, in Price v. Superior Court, 83 Cai. Rptr. 369,
463 P2d 721, 725 ‘Cal. Sup. Ct.) the decision to order
disclosure of the informant was made in the context of his
role in overhearing a conversation between persons known
by him to have been present at the scene of ithe shvoting in
question and, indeed, the strong likelihood of the in-
furmant’s presence at the shooting.

The testimony of agent Barnes was more than sufficient
to support the judgment of conviction. Because this case
does not involve a claim of entrapment* er a claimed vio-
lation of the obligations set forth in Brady v. Maryland
(373 U.S. 83 [1963]), the only two competent witnesses
to the transfer in question, Barnes and Gogyins, testified.
That the jury chose to believe Barnes and discount Gog-
gins was a proper function of the fact finding process. It

* C.F. State v. Davis, MO. . 450 S.W. 2d 168, 172 (Sup.
Ct. 1970): Stare v. Roundtree, 118 “J. Super. 22, 285 A. 2d
564, 568 (App. Div. 1971).

Xo]

is simply too late in the day to raise the red herring of
“informant”, speculate on his alleged usefulness, and then
vacate an otherwise properly entered judgment of convic-
tion. The privilege against disclosure must often give way,
but in this case a proper application of the rule laid down
in Roviaro simply does not dictate or suggest such a result.

POINT Il

In camera examination of a confidential informant as

a condition precedent to the revelation of his identity is
neither violative of the right of confrontation nor the

right to the effective assistance of counsel.

Assuming arguendo that the facts in this case were suffi-
cient to make a colorable showing that the informant could
offer helpful evidence for the defense, we feel that an in
camera setting is the proper forum for the testing of this
assertion. To the extent that the Court of Appeals dis-
missed such an examination for constitutional reasons
(2a) and not for reasons of state policy, the court’s mis-
reading violates accepted constitutional doctrine to the
prejudice of prosecutor’s everywhere. *

' In the ease at bar, Barnes was introduced to the seller
Goggins, by the confidential informant. Goggins apparently
had faith and confidence in the latter, for wher: informant
exclaimed “Abdul [Goggins] take care of [sell to] my man
| Barnes |jthe resolution to deal with a heretofore unknown
buyer was cemented.

. >

* The resort to in camera examination was found acceptable to
Justice Hopkins who expressed his views in an accompanying
opinion at the Appellate Division level (23a, 24a). We concur
in and adopt his reasoning.

10

That Goggins dealt with Barnes on two separate occasions
was established by Barnes’ testimony at trial. Absent any
factual basis that the informant could offer relevant and
helpful testimony*, surely the prosecutor has the right to
demonstrate that the motion for disclosure was a ploy or
that because of the operative facts in the case, that the in-
formant actually was not in a position to render aid or as-
sistance to the defendant and hence his testimony would
not be used. It seems patently unfair to allow prosecutorial
efforts to find, train, and prepare people for dangerous
work as informants, turn them over to defense counsel for
examination and possible use only to find that the defense
resolves, subsequent to disclosure that the informant is of
no value.

We submit that court conducted in camera examination
is a fitting and proper theater for the resclution of the dis-
closure decision where the court makes its determination,
from the propounding of submitted questions from oppos-
ing counsel. We further submit that the New York appel-
late courts hkeve misread and misapplied the sixth Amend-
ment confrontation and counsel clauses in ruling out, as
matters of constitutional mandate, resort to in camera ex-
amination as a too! for resolving the competing interests
highlighted in Roviaro.

Both decisions emanating from several federal circuit
courts of appeals and the Amended Proposed Federal Rules
of Evidence, Rule 510 ‘subd. t(¢), par. (2)) apply with ap-
proval the in camera concept as an aid in the evaluative bal-
ance of corapeting interests for and against disclosure.

* As Judge Jasen noted in his dissenting opinion, it was never
exp ained at trial why disclosure was warranted (12a).

11

In Uniied States v. Jackson, 384 F2d 825 (3d Cir. 1967)
cert. den. 392 US 933 the Court of Appeals discussed and
approved in camera examinations in developing the facts
and resolving the delicate balance of informant’s disclosure,

“There [referring to the Court’s earlier decision in
United States v. Day, 384 F2d 464 (3d Cir. 1967) ] the
trial judge conducted an in-camera confrontation with the
informer, who was made to take the oath and testify as to
any relevant knowledge he had pertaining to the crime. A
record of that in camera session was transcribed and sealed
so that only an appellate court could have access to its con-
tents. The advantage of the procedure is that it enables
the court to view with a keener perspective the factual cir-
cumstances upon which it must rule and attaches to the
court’s ruling a more abiding sense of fairness than could
otherwise have been realized.” (United States v. Jackson,
supra at p. 827; see also United States v. Winters 420 F 2d
523, 524 (3d Cir. 1970)); McLawhorn v. State of North
Carolina, 484 F2d 1, 5-6 n. 13 (4th Cir. 1973) ).

The resort to in camera proceedings is a well recognized
device in assessing governmental claims of privilege. The
recent spate of air piracy and hijacking which culminated
in the development of a “highjacker’s profile” resulted in an
in camera procedure to protect its premature divulgence
and hence resulting obsolescence unless the interests of jus-
tice so require (see United States v. Lopez, 328 F. Supp
1077 (E.D.N.Y. 1971) ; United States v. Bell, 464 F2d 667
(2d Cir. 1972) cert. den. 409 U.S. 991).

Although under normal and routine circumstances the
defense attorney can and should judge the use and worth

12

of testiriony and evidence,* his primacy is modified when
he wades in the pools of privilege maiter. Thus, this Court,
concededly in a reference by way of dicta observed that in
camera €xamination may be utilized to resolve tie Roviaro
balancing test (see Alderman v. United States, 394 U.S.
165, 182 n, 14 [1969]).

A study of proposed Federal Rules of Evidence is worth-
while and enlightening. Rule 510(c) (2) provides for ix
camera machinery to resolve governmentai claims of privi-
lege. As the advisory committee noted in its commentary
to proposed Rule 510, the ‘x camera hearing is a peculiarly
well suited forum for allowing the prosecutor to demon-
strate why the informer’s privilege should be upheld ‘see
56 FRD, 183, 257-258).

The exclusion of possible use of in camera examination
because of seeming consiitutional impediments was a gross
misreading of the sound guidelines utilized by several
federal appeals courts and in derogation of prop sed fed-
eral evidentiary guidelines. Had the New York Court of
Appeals concluded either to extend greater due process
to those accused of selling dangerous drugs i= a reading of
New York constitutional, statutory or case law we would
not find ourselves as petitioners to this Court. By conelud-
ing that they could not constitutionally permit an iv camera
approach, the majority of the Court of Appeais crievously
misread the United States Constitution and unwittingly
and unfortunately placed an increased unnecessary barrier

* See Jencks v. United States, 353 U.S. 657 (1957).

Ee

13

in the path of responsible prosecutors everywhere who must
rely to some degree on informants.*

A constitutional sanction of in camera examinations
would constitute a vital too! in the arsenal of those who
must free the innecent and convict the guilty.

* It has been estimated that 95% of all Federal narcotics cases
are obtained as a result of the work of informers (Williams,
The Defense of Entrapment and Related Problems in Criminal
Prosecutions, 28 Fordham L. Rev. 399, 403) [13a]. If disclosure
may be granted in cases such as this one, future cooperation by
informants, who fear retribution, may dry up.

CONCLUSION

For the foregoing reasons, the petition for a writ of
certiorari should be granted.

Dated: Brooklyn, New York
July, 1974

Respectfully submitted,

EUGENE GOLD
District Attorney
Kings County

RoGER BENNET ADLER
Assistant District Attorney
of Counsel

la

APPENDIX A

Opinion of the Court of Appeals State of New York “i

COURT OF APPEALS
STATE OF NEW YORK

——--—- +
No. 141 A
THE PEOPLE &c.,
Appellant,
Vs.
PHILLIP GOGGINS,
Respondent.
No. 141 B
THE PEOPLE, &c.,
Respondent,
vs.
ROBERT BROWN,
Appellant.

—___—_-—-> -- -------- ---

WACHTLER, J.:

Both of these cases raise a common issue concerning a
defendant’s right to disclosure of the identity of a police
informant. In each case the informant introduced an
undercover police officer to a drug seller and shortly there-

Dee dtd May 1S, I1G74,

2a

Appendix A—Opinion of the Court of Appeals
State of New York

after departed from the immediate area. The undercover
officer then made a purchase, left the scene, and the defend-
ant was later arrested by other officers relying on informa-
tion supplied by the undercover agent. At the trial the
defendant chalienged the reliability of the undercover of-
ficer’s identification and urged the court that a proper
resolution of that issue required that the prosecutor be
directed to reveal the identity of the informant who initially
brought the parties together.

In Brown, where the sale and arrest occurred at the
defendant’s apartment and the proof of identification was
virtually unassailed, the court denied disclosure. In the
Goggins case, involving a sale and subsequent arrest in or
around a public bar, a close identity question emerged at
the trial and the appellate division directed that disclosure
be made. We affirm in both cases.

Problems created by demand for disclosure of police
undercovermen, special police agents, informant witnesses
and informant tipsters divide into two categories. The first
concerns the establishing of probable cause for arrest and
search. As indicated in the companion decision, People v.
Darden, (— N Y 2d —), this category is in a sense pro-
cedural and reflects constitutional and policy considerations
designed to inhibit unreasonable intrusions on the privacy
of individuals. The second category at issue on this appeal
is substantive and involves constitutional and policy con-
siderations related to the right to confrontation, due proc-
ess, and fairness. Most important, it is related to the
risk of wrongfully convicting the innocent.

For the reasons and under the circumstances set forth
in the Darden opinion we have concluded that, in the prob-

3a

Appendix A—Opinion of the Court of Appeals
State of New York

able cause cases, the proper balance between the defend-
ant’s rights and th® competing interests of the state is
achieved by granting an ex parte in-camera hearing with
respect to the existence of the informer and the alleged
communications from him. In the probable cause setting,
there is no inflexible federal constitutional standard of
disclosure applicable in every case involving an informant
(McCray V. Illinois, 386 U.S. 300, 312-314; c7., People v.
Malinsky, 15 N Y 2d 86, 92-93).

When however, as in the case at bar the defendant’s
guilt or innocence is at issue, the decision as to whether
the informant’s identity should be disclosed must not be
resolved in an ex parte proceeding.

Limiting the adversary stance in criminal prosecutions,
the state is obliged to disclose to a defendant evidence and
potential witnesses possessed by or known to the prosecu-
tion which may establish his innocence. (Brady Vv. Mary-
land, 373 U.S. 83, 86-87; see also Moore v. Illinois, 408
U.S. 786, 794-795). That such evidence or knowledge may
involve prosecutorial privileges of one sort or another is to
no avail (Roviaro v. United States, 353 U.S. 53, 60-61).
The privileges must yield to the overriding consideration of
avoiding the risk of convicting the innocent, unless, of
course, the prosecution should elect to abandon its case
rather than allow disclosure (Jd. at 61 and 65, fn. 15).

Since this bears directly on the issues being tried in the
main case, defendant’s right to the full benefit of the ad-
versary system should not be denied, nor qualified by im-
pairing his right by interposing the “neutral” judge to
assess whether the disclosure is relevant or material (cf.,
People v. Rosario, 9 N Y 2d 286, 290). On the other side of

4a

Appendix A—Opinion of the Court of Appeals
State of New York

the coin, it may be a disservice to the prosecution also to
leave that determination to the “neutral” judge without the
prosecution represented in in-camera proceedings.

Perhaps, most important, an in-camera examination of
the witnesses, that is ex parte or without the parties repre-
sented would, in our view, arguably trifle with the con-
stitutional right to confrontation and the right to counsel.

Nevertheless, these principles do not suggest or require
that disclosure of privileged information concerning evi-
dence or witnesses must be available for the asking. The
Roviaro case (supra) makes it clear that some foundation,
that is, some initial showing, must be made before privi-
leged matter affecting the substantive issues must. be dis-
closed, and that the issue is one to be determined in the
exercise of a sound discretion by the trial judge (353 U.S.
at 61, fn. 9, and 62).

Bare assertions or conclusory allegations by a defendant
that a witness is needed to establish his innocence will not
suffice. Instead he must show a basis in fact to establish
that his demand does not have an improper motive and is
not merely an angling in desperation for possible weak-
nesses in the prosecution’s investigation (see Roviaro v.
United States at 58-65, supra).

On this point the nature of the informant’s role is of
some significance. Undoubtedly the strongest case for dis-
closure is made out when it appears that the informant was
an eyewitness or a participant in the alleged crime.
(Roviaro v. United States, supra.) But disclosure of the
informant’s identity may also be appropriate when, by
introducing the parties to each other or performing some
other preliminary function he may be considered to have

“-

5a

Appendix A—Opinion of the Court of Appeals
State of New York

been “an active participant in setting the stage”. (Gil-
more V. United States, 256 F. 2d 565, 567; see also United
States v. Roberts, 388 F. 2d 646, 647, 649 [2d Cir.] ; Price
v. Superior Court, 463 P. 2d 721, 725, Calif. Sup. Ct.)
When however he has played a marginal part by, for in-
stance, merely furnishing a tip or some information to the
police, the privilege should prevail absent an extremely
strong showing of relevance. (See e.g. Sorrentino Vv. United
States, 163 F. 2d 627; Portemene v. United States, 221 F.
2d 582, 583-584; Gilmore v. United States, supra at 566;
United States v. Lloyd, 400 F. 2d 414, 416; United States
v. Barnett, 418 F. 2d 309, 311.)

But although the extent of the inforiuer’s role cannot be
overlooked, it should not be overemphasized. Thus when,
for example, the identity of the culprit rests upon evidence
which is equally balanced, the informer’s testimony should
not be minimized merely because he played an minor role.
In other words the truly crucial factor in every case is the
relevance of the informer’s testimony to the guilt or in-
nocence of the accused.

The defendant of course may lay his foundation for dis-
closure by a showing in pretrial motion or upon the de-
velopment of testimony in the main trial. (With respect
to a pretrial motion see Roviaro v. United States, supra,
at 65 n. 15, and People v. Taylor, 70 Misc. 2d 970, 972.) It
is impossible to predict every setting which would call for
disclosure of the informer’s identity. It is anticipated how-
ever that in the usual case either the course and quality
of the prosecutor’s proof may suggest the need for dis-
closure or the defendant, rather than showing weaknesses

6a

Appendix A—Opinion of the Court of Appeals
State of New York

in the prosecutor’s case, might become entitled to disclosure
by the development of his own defense.

In the Goggins case the right to disclosure was estab-
lished on both of these grounds. In brown disclosure was
not justified on either ground, nor was there any other cir-
cumstance demonstrating that the defendant’s demand was
anything more than a purely speculative gesture designed
to uncover evidence which might offer some support to his
case or unveil some weakness in the prosecution.

Brown was convicted of selling drugs on two occasions
to an undercover police officer. On the first occasion an
informer took the officer to the defendant’s apartment and
told the defendant “this is my friend, take care of him.”
The informer left and the defendant sold cocaine to the
officer. On the second occasion the informer waited down-
stairs while the officer returned to the defendant’s apart-
ment and once again purchased cocaine.

On the night of the arrest, the officer waited in a car
while his back-up team escorted defendant from his apart-
ment. The undercover officer viewed defendant through
binoculars, and determined he was the person who had
sold the officer the drugs. By a prearranged signal, the
undercover officer blinked the headlights of the car. The
back-up team then placed defendant under arrest. The
undercover officer reconfirmed his initial identification of
defendant by viewing him from approximately thirty feet
away when he was being brought into the precinct house
to be booked.

Goggins was also charged with selling drugs to an under-
cover policeman, Luther Barnes, on two occasions. Barnes
testified that on the first occasion he went to a Brooklyn bar

Ta

Appendix A—Opinion of the Court of Appeals
State of New York

accompanied by an informant who introduced him to a drug
dealer and stated “Abdul, take care of my man.” Leaving
the informant behind, Barnes followed the dealer “Abdul”
out of the bar and purchased drugs from him. Several days
later Barnes and the informer returned to the bar. Once
again the informant was left behind while “Abdul” and
Barnes proceeded outside the bar where the second drug
sale was completed. On both occasions Barnes was face to
face with the dealer for approximately two minutes.

On the evening of defendant’s arrest, Barnes left the bar
and called his back-up team to tell them to arrest the seller
who was in the bar. Barnes had previously described the
seller to the back-up team, but his description of the seller
on the evening of the arrest appears to be somewhat
sketchy. The back-up team entered the bar at dusk, and
arrested the defendant. As they walked out of the bar
holding defendant, Barnes drove by them at approximately
15 miles per hour looking askance to make certain they
arrested the right man. Satisfied they had the right man
he left without returning to the precinct to make further
identification. The next time Barnes saw the defendant
was approximately one year later when he identified him
in court as the man from whom he had bought the heroin.

In the Goggins case there were certainly gaps and weak-
nesses in the prosecutor’s case. Police Officer Barnes gave
but a sketchy description to his back-up team preceding the
arrest, and except for a fleeting glance at the defendant
made under less than favorable conditions, more than a
year elapsed between the sale and the corporal identifica-
tion of defendant by Barnes. Thus it was apparent that
who was truly the man designated as “Abdul” was in issue

«

8a

Appendix A—Opinion of the Court of Appeals
State of New York

and that the defendant was entitled to disclosure of the
name of the man who set up the sale by Abdul to the police
officer and introduced them to each other. This informer
could clearly play a decisive role in resolving the very
colorable factual dispute between Barnes and Goggins.
(See e.g. accord Smith v. Illinois, 390 U.S. 129, 180; Porte-
mene V. United States, supra |cited with approval in
Roviaro v. United States, supra, p 82, n 12]; ef. United
States v. Polisi, 416 F 2d 573, 578-579 [2d Cir].)

The transaction in People v. Brown offers an appropriate
contrast. In Brown, the sale was made in a particular
apartment in which the defendant was found when ar-
rested, rather than in a public bar as in Goggins. Most
important, after the arrest in Brown, the officer who made
the purchase went to the station house after the back-up
team had arrested the defendant and identified him as the
seller. Of these facts, the trial court properly exercised its
discretion in denying disclosure. Here the risk of mistaken
identification was minimal. Significantly the defendant
has failed to focus on any weak point in the prosecutor’s
case or closely contested issue of fact which might be re-
solved by disclosure of the informant’s identity.

Of course, as indicated, the defendant might become en-
titled to disclosure not by showing weaknesses in the prose-
cution case but by the development of his defense. Thus, in
Goggins, defendant had no arrest record and was gainfully
employed. Goggins also gave a creditable explanation for
his presence in the bar when arrested, denied being present
in the bar at the time of the sale, and was corroborated
in this respect by his now estranged wife.

9a

Appendix A—Opinion of the Court of Appeals
State of New York

Brown, on the other hand, presented no significant de-
fense and his demand for disclosure fails on this ground as
well.

In sum the record in the Goggins case, but not in Brown,
presents both a plausible issue as to guilt and less than
trouble-free identification testimony, and either would
have been enough. Hence, disclosure should have been
directed in Goggins, and even, if appropriate, production
of the informant-witness; but since it relates to a substan-
tive issue in the case, the disclosure should not be ex parte
or without either party present even if in-camera. Such a
drastice requirement of full disclosure or production will,
of course, influence the trial court’s discretion lest the
prosecutorial privileges be untowardly brushed aside; but
that is fair enough since the privileges are important. Of
course, if the prosecution concludes that conviction of the
defendant is less important that the risks of disclosure, it
will have to fo.ego pursuing the case against the defendant.

The orders appealed from are affirmed.

JASEN, J. (dissenting) :

I dissent and vote to reverse and to reinstate the judg-
ment of conviction on the ground that the trial court did
not abuse its discretion in denying defendant’s request for
disclosure of the informer’s identity.

At about 3:00 P.M., on March 18, 1970, Luther Barnes,
an undercover officer assigned to the Narcotics Division of
the City of New York Police Department, entered a bar
and grill located at Christopher and Belmont Streets,

10a

Appendix A—Opinion of the Court of Appeals
State of New York

~

Brooklyn. Accompanying Barnes was a confidential police
informer. The informer introduced Barnes to a man ad-
dressed as Abdul by saying, “Abdul, take care of my man.”
Abdul then motioned to Barnes to follow him outside the
bar. There the two conversed for several minutes and Abdul
gave Barnes seven glassine envelopes, later determined to
contain heroin, in exchange for $15. The informer remained
inside the bar and did not participate in the negotiations or
witness the transaction. After the exchange was completed,
Abdul and Barnes reentered the bar. Barnes remained for
several minutes more and then departed with the informer.
He then rendezvoused with his backup team at a pre-
arranged location and placed the glassine containers in an
evidence envelope and sealed it. Detective Lorenzo, a mem-
ber of the backup team, who had been seated in a parked car
on Christopher Street approximately 50-60 feet from the
intersection of Belmont Street, observed Barnes enter the
bar and grill with the informer, emerge and converse and
shake hands with another man and then reenter the bar.
At trial, Barnes identified the defendant as the man Abdul
who had sold him the heroin and Lorenzo identified the
defendant as the man he had seen conversing and shaking
hands with Barnes outside the bar.

This sequence was repeated on March 23, 1970. On that
day at about, 3:30 P.M., Barnes and the informer entered
the same bar at Christopher and Belmont Streets. Abdul
was present and motioned to Barnes to go outside the bar
with him. A brief conversation ensued, glassine envelopes,
later determined to contain heroin, and money were ex-
changed. The informer remained in the bar. He did not
participate in the negotiations and did not witness the

~

lla

Appendix A—Opinion of the Court of Appeals
State of New York

transaction. There is no evidence that any words of intro-
duction were spoken on Barnes’ behalf as on March 18.
As on the previous occasion, from a car parked about 50
feet away on Christopher Street, Detective Lorenzo ob-
served Barnes and another man, identified at trial as the
defendant, conversing and shaking hands outside the bar.

On March 27, 1970, at about 6:00 P.M., Barnes entered
the same bar and observed the defendant known to him as
Abdul. He remained for a few minutes and then reported
to his backup team that the suspect was at the bar and
furnished them a description. The backup team, Detective
Lorenzo and another, then entered the bar and arrested
the defendant. No drugs were found in his possession.
Barnes then drove past the bar at about 15 miles per hour,
observed the defendant in custody on the sidewalk outside
the bar and signalled to the team that they had the right
man.

At trial, the defendant denied having made sales of
heroin on March 18 and March 23 or any other date. He
testified that on each of these days he had been at home
with his wife until 3:45 P.M. when he left for work. De-
fendant’s wife testified to the same effect. On cross-
examination, however, it was determined that during 1970
she and the defendant had not been living together con-
tinuously and that she could not recall exactly which days
in March her husband had spent at home. The jury then
returned a verdict of guilty of possession, possession with
intent to sell, and sale of dangerous drugs incident to each
of these two transactions (6 counts).

On this record I am unable to conclude, as does the ma-
jority, that disclosure of the informer’s identity was re-

12a

Appendix A—Opinion of the Court of Appeals
State of New York

quired. In the interest of fairness, disclosure should be
allowed where the informer is a material witness on the
issue of guilt. Roviaro v. United States, 353 U. S. 53,
60-61.) But there is and cannot be any fixed rule for
resolving this issue in particular cases. In the final analysis,
each case turns on its own peculiar circumstances. (Jd., at
p. 62.)

Here, unlike in the Roviaro case, the informer did not
play a central role in the narcotics transactions. He merely
brought Barnes and the defendant together on the first oc-
casion. On neither occasion did he participate in the negoti-
ations, nor was he even within hearing distance (see Gil-
more V. United States, 256 F 2d 565, 567 [5th Cir.]) and
he did not witness the most crucial step—the actual ex-
change of drugs—which occurred outside the bar. (See
United States v. Paz-Sierra, 367 F 2d 930, 931 [2d Cir.];
United States v. Russ, 362 F 2d 843, 845 [2d Cir.].)

Then, too, while Barnes and, to a lesser extent, Lorenzo
were vigorously cross-examined as to the accuracy of their
identification of the defendant, it was never explained why
disclosure of the informer’s identity was warranted, which
was defendant’s burden to do.’ (See generally, Anno.,
Accused’s Rights—Informer—Identity, 76 A L R 2d 262,
§ 13[b] and cases collected therein.) In evaluating the trial
court’s exercise of discretion not to order disclosure, this is
of some importance. (See United States v. Kelly, 449 F 2d
329, 330 [9th Cir.].)

1 The existence of the informer was brought out only on cross-
examination of Barnes. In presenting their casc, the People did not
rely in any manner on information supplied by the informer.

13a

Appendix A—Opinion of the Court of Avpeals
State of New York

Also, the identifi :ation testimony was, in the main, quite
sufficient. Barnes had two face-to-face encounters with the
defendant. He observed him in the bar on the evening of
the arrest and furnished a description to his backup team,
one of whom (Lorenzo) had independently observed the
defendant on the two prior occasions. Barnes also identi-
fied the defendant as he slowly cruised by the arrest scene.
His in-court identification was positive and Lorenzo testi-
fied unequivocally that the man he arrested was the man
whom he had observed conversing and shaking hands with
Barnes on the dates and at the times that the drug trans-
actions had occurred.

In balancing the public interest in protecting the flow
of information against the individual’s right to a fair trial,
something more should be required before the privilege of
nondisclosure gives way. Particularly in drug cases, in-
formers play a crucial role and the privilege should yield
only for the most cogent reasons. Indeed, it has been esti-
mated that 95 percent of all Federal narcotics cases are
obtained as the result of the work of informers. (Williams,
The Defense of Entrapment and Related Problems in
Criminal Prosecutions, 28 Fordham L. Rev. 399, 403.) It
is common knowledge that “victims” in narcotics cases
rarely complain. Hence, in enforcing the narcotics laws,
the State usually acts as policeman, prosecutor and com-
plaining witness and of necessity must rely on informers,
frequentiy drug users or sellers themselves, to lead its
agents to others involved in the chain of illicit drug traffic.
Of particular concern here is that the court holds dis-
closure is required where the informer merely brought the
undercover agent and the drug seller together on one oc-

l4a

Appendix A—Opinion of the Court of Appeals
State of New York

casion. The informer did not participate in the actual
negotiations, nor did he witness the transactions. He was
a mere catalyst, so to speak. Is disclosure to be required
in every such case? If so, sources of valuable information
will surely dry up and the ability of those in law enforce-
ment to deal effectively with the drug problem and to pene-
trate the cadres of organized drug syndicates will be
severely and irreparably impaired.

On this analysis, I do not reach the procedural issue with
regard to a disclosure hearing. Were the issue reached, like
the majority, I would hold that whether the informer’s
identity should be disclosed is a matter best resolved in the
context of a full adversarial hearing.

For the reasons stated, the order of the Appellate Di-
vision should be reversed and the judgment of conviction
reinstated. —

In People v. Goggins:

Order modified in accordance with the opinion herein
and, as so modified, affirmed. Opinion by WACHTLER,
J. All concur except JASEN, J., who dissents and votes
to reverse in an opinion in which GABRIELLI, J., con-
curs.

In People v. Brown:

Order affirmed. Opinion by WACHTLER, J. All concur,
JASEN and GABRIELLI, JJ., in result only.

15a

APPENDIX B

Order of Reversal of The Appellate Division,
Second Department

At a Term of the Appellate Division of
the Supreme Court of the State of
New York, Second Judicial Depart-
ment, held in Kings County on July
16, 1973.

A.D. 2

Before:
Hon. JAMES D. HOPKINS,
Acting Presiding Justice,

“« FRED J. MUNDER,

“« J. IRWIN SHA™IRO,
“ FRANK A. GU.. TTA,
“ Marcus G. CHRIST,

Associate Justices.

THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,

Vv.

PHILLIP GOGGINS,
Appellant.

ay
vv

In the above entitled action, the above named Phillip
Goggins, defendant in this action, having appealed to this
court from a judgment of the Supreme Court, Kings County,

16a

Appendix B—Order of Reversal of The Appellate Division,
Second Department

rendered June 11, 1971, convicting him of criminally sell-
ing a dangerous drug in the third degree (two counts),
criminal possession of a dangerous drug in the fourth de-
gree (two counts) and criminal possession of a dangerous
drug in the sixth degree (two counts), upon a jury verdict,
and imposing sentence; and the said appeal having been
argued by Steven Lloyd Barrett, Esq., of counsel for the
appellant, and by Roger Bennet Adler, Esq., of counsel for
the respondent, and due deliberation having been had there-
on; and upon this court’s opinion by Shapiro, J., decision
slip heretofore filed and made a part hereof, it is:

ORDERED that the judgment appealed from is hereby
unanimously reversed, on the law, and new trial ordered.
MUNDER, GULOTTA, and CHRIST, JJ., concur.

HOPKINS, Acting P.J., concurs in the reversal and the di-
rection of a new trial, but dissents from the direction for
disclosure without an in camera hearing, with opinion.

Enter:

IRVING N. SELKIN
Clerk of the Appellate Division

17a

APPENDIX C

Opinion of the Appellate Division,
Second Department

July 16, 1973
SUPREME COURT
APPELLATE DIVISION—SECOND JUDICIAL DEPARTMENT
42 A.D. 2d 227
Hopkins, Acting PJ.,

MUNDER, SHAPIRO, GULOTTA and CHRIST, JJ.

THE PEOPLE, ETC.

Respondent,

V.

PHILLIP GOGGINS,
Appellant.

i.
7

APPEAL from a judgment of the Supreme Court at Crim-
inal Term in Kings County (WILLIAM T. CowIN, J.), ren-
dered June 11, 1971, convicting defendant of criminally
selling a dangerous drug in the third degree (two counts),
criminal possession of a dangerous drug in the fourth de-
gree (two counts) and criminal possession of a dangerous
drug in the sixth degree (two counts), upon a jury verdict,
and imposing sentence.

18a

Appendix C—Opinion of the Appellate Division,
Second Department

WILLIAM E. HELLERSTEIN and ROBERT KASANOF

(Steven Lloyd Barrett of counsel), for appellant.

EUGENE GOLD, DISTRICT ATTORNEY

(Roger Bennet Adler of counsel), for respondent.

SHAPIRO, J.

The defendant’s conviction of various counts of an in-
dictment involving the sale and possession of narcotics
stems from two sales allegedly made by him to an under-
cover 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-examination, Barnes testified that
on the occasions of the sales he was accompanied to the bar
by an informer who ailegedly introduced him to the de-
fendant and told the latter, “Abdul, take care of my man.”
The Trial Justice ruled that the informer’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 con-
victed of a crime. He contended that his implication in the

19a

Appendix C—Opinion of the Appellate Division,
Second Department

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 a new trial.

In Roviaro v. United States (853 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 alieged 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 dis-
closure 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 de-
fenses, the possible significance of the informer’s
testimony, and other relevant factors.”

20a

Appendix C—Opinion of the Appellate Division,
Second Department

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 in-
formant’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 Vv.
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 crim-
inal 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 pre-
paring 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

{3rd Cir.]). However, later, in United States v. Barnett

2la

Appendix C—Opinion of the Appellate Division,
Second Department

(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 possi-
bility 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, ¢.g., Velarde-Villarreal Vv.
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.]; ef. United States v.
Roberts, 388 F. 2d 646 [2nd 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 informer because he was never intro-
duced 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 re-
versed, on the law, and a new trial ordered.

Hopkins, Acting P.J. (concurring in part and dissenting
in part). I agree with my brethren that the judgment of
conviction must be reversed and a new trial ordered. I
differ from them concerning the procedure to be followed
on the new trial.

a‘

22a

Appendix C—Opinion of the Appellate Division,
Second Department

The identity of an informant must be disclosed to the
defendant in a criminal action when it is “relevant and
helpful to the defense of an accused, or is essential to a
fair determination of a cause” (Roviaro v. United Siates,
353 U.S. 53, 60-61). That admittedly general test is
rounded out more significantly in the language of the
court in Wilson v. United States (59 F. 2d 390, 392):
“If what is asked is useful evidence to vindicate the in-
nocence of the accused or lessen the risk of false testimony
or is essential to the proper disposition of the case, dis-
closure will be compelled.”

Nonetheless, the rule istelf is but an exception to a larger
doctrine—the common law privilege extended to a police
informer against disclosure ‘see 8 Wigmore, Evidence
{McNaughton rev.], § 2394). That privilege is intended to
encourage assistance to the State in rooting out and prose-
cuting crime; moreover, in modern context, the priviiege
protects the undisturbed use of undercover agents and on-
going investigations and prevents retaliation against in-
formers and their families by coercive means empioyed by
the accused or his associates.

Thus, whether the exception allowing disclosure may be
given effect becomes essentially a balancing process to
strike the proper breaking point between the interest of
the State and the interest of the individual—the traditional
role of due process under the Constitution. It is the trial
court which must decide whether the exception shall be
recognized for the proper safeguard of the individual at
the trial. In order that the balancing test can be fairly
determined between the competing interests, the proceed-
ings by which the test is carried out should be held in

23a

Appendix C—Opinion of the Appellate Division,
Second Department

camera, without the presence of the prosecutor or the de-
fendant and his counsel (cf. People v. Delgado, 40 A D 2d
554).?

In camera procedure is sanctioned by the federal courts
(United States v. Jackson, 384 F. 2d 825, cert. den. sub
nom. Jackson v. United States, 392 U. S. 933; United
States v. Winters, 420 F. 2d 523; ef. United States v. Day,
384 F. 2d 464, 470 [ (concurring opinion) |; United States
v. Bell, 464 F. 2d 667; United States v. Slocum, 464 F. 2d
1180). “Realistically, the trial court can perform its func-
tion only if it has access to more of the facts than it may
ultimately be willing to reveal to the parties or to the
public. To deny the judge the identity of the informer
and whatever evidence he may be able to offer may pre-
vent an effective evaluation of possible effect on the de-
fendant’s interests” (United States V. Lopez, 328 F. Supp.
1077, 1091) .?

Moreover, the procedure has received approval in the
Federal Revised Proposed Rules of Evidence. Rule 510
(subd. [c], par [2]) provides that “the judge shall give
the government an opportunity to show in camera facts
relevant to determining whether the informer can, in fact,
supply that testimony. The showing will ordinarily be in
the form of affidavits, but the judge may direct that testi-
mony be taken if he finds that the matter cannot be re-
solved satisfactorily upon affidavit. * * * Evidence sub-

1. The absence of the defendant does not violate the confrontation
clause of the Constitution of the United States (McCray Vv. Illinois,
386 U. S. 300, 313-314).

2. In camera procedure has also been adopted in civil cases (West-
inghouse Elec. Corp. V. City of Burlington, 351 F. 2d 762).

_ 24a

Appendix C—Opinion of the Appellate Division,
Second Department

mitted to the judge shall be sealed and preserved to be
made available to the appellate court in the event of an
appeal, and the contents shall not otherwise be revealed
without consent of the government. All counsel and parties
shall be permitted to be present at every stage of proceed-
ings under this subdivision except a showing in camera, at
which no counsel or party shall be permitted to be present.”

Hence, in this case I would direct that an in camera hear-
ing be held in connection with the new trial, in order to
determine whether disclosure should be required. The Trial
Justice, after obtaining the facts, is in a far better posi-
tion to make that decision than we are on this record. I
therefore concur in the reversal and the direction of a new
trial, but dissent from the direction for disclosure without
an in camera hearing conducted under the conditions stated
herein.

oa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0298%3A1. Public record. Not legal advice.