
    The People of the State of New York, Appellant, v. Phillip Goggins, Respondent. The People of the State of New York, Respondent, v. Robert Brown, Appellant.
    Argued February 21, 1974;
    decided May 15, 1974.
    
      
      Eugene Gold, District Attorney (Roger Bennet Adler of counsel), for appellant in the first above-entitled action.
    The Trial Judge properly denied the motion to compel disclosure of the confidential informant’s identity. (People v. Goggins, 42 A D 2d 227; Roviaro v. United States, 353 U. S. 53; United States v. Alvarez, 472 F. 2d 111; United States v. Kelly, 449 F. 2d 329; United States v. Russ, 362 F. 2d 843, 385 U. S. 923; United States v. Ortega, 471 F. 2d 1350; United. States v. Skeens, 449 F. 2d 1066; United States v. James, 466 F. 2d 475; United States v. Poms, 484 F. 2d 919; United States v. Clark, 482 F. 2d 103.)
    
      Steven Lloyd Barrett and William E. Hellerstein for respondent in the first above-entitled action.
    The disclosure of the confidential informant who had arranged the narcotics transactions with which defendant was charged was properly ordered. He alone could offer definitive testimony with regard to the identity of “ Abdul ” and was thus indispensible to the defense’s assertion that defendant had been mistakenly identified by less competent witnesses. (Roviaro v. United States, 353 U. S. 53; United States v. Barnett, 418 F. 2d 309; People v. Goggins, 42 A D 2d 227; People v. Willis, 41 A D 2d 660; United States v. Soles, 482 F. 2d 105; Alderman v. United States, 394 U. S. 165.)
    
      Henry J. Boitel for appellant in the second above-entitled action.
    I. Defendant was denied a fair trial by the court’s refusal to allow discovery of the identity of the addict-informer, thereby denying the defense access to the only other eyewitness who could have contradicted the damning testimony of the undercover officer. (Roviaro v. United States, 353 U. S. 53; McCray v. Illinois, 386 U. S. 300; Smith v. Illinois, 390 U. S. 129; Alford v. United States, 282 U. S. 687; United States v. Robinson, 325 F. 2d 391; United States v. Hurse, 453 F. 2d 128; United States v. Skeens, 449 F. 2d 1066; Lopez-Hernandez v. United States, 394 F. 2d 820; United States v. Roberts, 388 F. 2d 646; Gilmore v. United States, 256 F. 2d 565.) II. Defendant was severely and irreparably prejudiced before the jury by the remarks of the Assistant District Attorney during his opening statement and summation. (People v. Luedecke, 22 A D 2d 636; People v. Castelo, 24 A D 2d 827; People v. Gould, 25 A D 2d 160; People v. Carborano, 301 N. Y. 39; People v. Tassiello, 300 N. Y. 425; People v. Wright, 17 A D 2d 151; People v. Broady, 5 N Y 2d 500; People v. Hickman, 34 A D 2d 831; People v. Figueroa, 38 A D 2d 595.) III. Defendant was unfairly denied an opportunity to present a defense by the court’s refusal to allow him to testify in his own behalf without revealing his prior criminal convictions. (United States v. Coleman, 420 F. 2d 1313; Jones v. United States, 402 F. 2d 639; Brown v. United States, 370 F. 2d 242; United States v. Palumbo, 401 F. 2d 270, 394 U. S. 947; United States v. Puco, 453 F. 2d 539; People v. Palmieri, 58 Misc 2d 288.) IV. Probable cause to arrest defendant did not exist at the time he was taken into custody. Therefore, the seizure of defendant’s person was illegally obtained and the consequent identification of defendant on trial through this illegal procedure was improper. (Weeks v. United States, 232 U. S. 383; Mapp v. Ohio, 367 U. S. 643; United States v. Edmons, 432 F. 2d 577; Nardone v. United States, 308 U. S. 338; Wong Sun v. United States, 371 U. S. 471; People v. Scharfstein, 52 Misc 2d 976; People v. Dannic, 30 A D 2d 679; People v. Christman, 61 Misc 2d 1084; People v. Mendez, 28 N Y 2d 94.)
    
      
      Eugene Gold, District Attorney (Roger Bennet Adler of counsel), for respondent in the second above-entitled action.
    I. The court properly declined to order the disclosure of the informant’s identity. (Roviaro v. United States, 353 U. S. 53; United States v. Kelly, 449 F. 2d 329; Unted States v. Ortega, 471 F. 2d 1350; United States v. Alvarez, 472 F. 2d 111; United States v. Russ, 362 F. 2d 843, 385 U. S. 923; United States v. Skeens, 449 F. 2d 1066; United States v. James, 466 F. 2d 475; United States v. Poms, 484 F. 2d 919; United States v. Clark, 482 F. 2d 103; United States v. Hurse, 453 F. 2d 128.) II. The prosecutor’s remarks during his opening statement and summation were proper. To the extent that error was committed, it was harmless. (People v. Gates, 24 N Y 2d 666; People v. Friola, 11 N Y 2d 157; United States v. Sawyer, 347 F. 2d 372; Henderson v. United States, 218 F. 2d 14, 349 U. S. 920; United States v. Wasko, 473 F. 2d 1282; United States v. Private Brands, 250 F. 2d 554, 355 U. S. 957; United States v. Davis, 487 F. 2d 112; People v. Tassiello, 300 N. Y. 425; United States v. Drummond, 481 F. 2d 62; People v. Adams, 21 N Y 2d 397.) III. The Trial Judge did not abuse his discretion in denying appellant’s oral motion to preclude cross-examination of prior criminal convictions. (People v. Sorge, 301 N. Y. 198; Luck v. United States, 348 F. 2d 763; United States v. Palumbo, 401 F. 2d 270, 394 U. S. 947; Gordon v. United States, 383 F. 2d 936; United States v. Kahn, 472 F. 2d 272; United States v. Pfingst, 477 F. 2d 177.) IV". The preindictment identification of appellant was proper. (People v. Vidal, 26 N Y 2d 249; People v. Gates, 24 N Y 2d 666; People v. Morales, 22 N Y 2d 55, sub nom. Morales v. New York, 396 U. S. 102; People v. Pounds, 35 A D 2d 969; People v. Valerius, 36 A D 2d 671, 31N Y 2d 51.)
   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 thereafter departed from the immediate area. The undercover officer then made a purchase, left the scene, and the defendant was later arrested by other officers relying on information supplied by the undercover agent. At the trial the defendant challenged-the reliability of the undercover officer’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 Gog gins 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 (34 N Y 2d 177), this category is in a sense procedural 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 considerations related to,the right to confrontation, due process, 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 Barden opinion we have concluded that, in the probable cause cases, the proper balance between the defendant’s rights and the 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; cf. 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 prosecution which may establish his innocence (Brady v. Maryland 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 (pp. 61, 65, n. 15).

Since this bears directly on the issues being tried in the main case, defendant’s right to the full benefit of the adversary system should not be denied, nor qualified by impairing 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 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 represented would, in our view, arguably trifle with the constitutional right to confrontation and the right to counsel.

Nevertheless, these principles do not suggest or require that disclosure of privileged information concerning evidence 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 privileged matter affecting the substantive issues must be disclosed, and that the issue is one to be determined in the exercise of a sound discretion by the Trial Judge (353 U. S., at p. 61, n. 9, p. 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 weaknesses in the prosecution’s investigation (see Roviaro v. United States, supra, pp. 53-65).

On this point the nature of the informant’s role is of some significance. Undoubtedly the strongest case for disclosure 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 been “ an active participant in setting the stage ”. (Gilmore v. United States, 256 F. 2d 565, 567; see, also, United States v. Roberts, 388 F. 2d 646, 647, 649; Price v. Superior Ct., 1 Cal. 3d 836.) When however he has played a marginal part by, for instance, 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 v. United States, 163 F. 2d 627; Portemene v. United States, 221 F. 2d 582, 583-584; Gilmore v. United States, supra, at p. 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 informer’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 a minor role. In other words the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innoncence of the accused.

The defendant of course may lay his foundation for disclosure by a showing in pretrial motion or upon the development of testimony in the main trial. (With respect to a pretrial motion see Roviaro v. United States, supra, at p. 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 however that in the usual case either the course and quality of the prosecutor’s proof may suggest the need for disclosure or the defendant, rather than showing weaknesses 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 established on both of these grounds. In Brown disclosure was not justified on either ground, nor was there any other circumstance 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 downstairs while the officer returned to the defendant’s apartment and once again purchased cocaine.

On the night of the arrest, the officer waited in a car while his backup team escorted defendant from his apartment. 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 backup team then placed defendant under arrest. The undercover officer reconfirmed his initial identification of defendant by viewing him from approximately 30 feet away when he was being brought into the precinct house to be booked.

Groggins was also charged with selling drugs to an undercover policeman, Luther Barnes, on two occasions. Barnes testified that on the first occasion he went to a Brooklyn bar 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 ‘1 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 backup team to tell them to arrest the seller who was in the bar. Barnes had previously described the seller to the backup team, but his description of the seller on the evening of the arrest appears to be somewhat sketchy. The backup 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 weaknesses in the prosecutor’s case. Police Officer Barnes gave but a sketchy description to his backup 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 corporeal identification of defendant by Barnes. Thus it was apparent that who was truly the man designated as Abdul ” was in issue arid 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 Portemene v. United States, supra [cited with approval in Roviaro v. United States, supra, p. 82, n. 12]; Smith v. Illinois, 390 U. S. 129, 130; cf. United States v. Polisi, 416 F. 2d 573, 578-579.)

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 arrested, rather than in a public bar as in Goggins. Most important, after the arrest of Brown, the officer who made the purchase went to the station house after the backup team had arrested the defendant and identified him as the seller. On 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 resolved by disclosure of the informant’s identity.

Of course, as indicated, the defendant might become entitled to disclosure not by showing weaknesses in the prosecution 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.

Brown, on the other hand, presented no significant defense 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 substantive issue in the case, the disclosure should not be ex parte or without either party present even if in camera. Such a drastic 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 than the risks of disclosure, it will have to forego 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 judgment 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, Brooklyn. Accompanying Barnes was a confidential police informer. The informer introduced Barnes to a man addressed 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 re-entered the bar. Barnes remained for several minutes more and then departed with the informer. He then rendezvoused with his backup team at a prearranged location and placed the glassine containers in an evidence envelope and sealed it. Detective Lorenzo, a member 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 re-enter 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 exchanged. The informer remained in the bar. He did not participate in the negotiations and did not witness the transaction. There is no evidence that any words of introduction 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 observed 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 signaled 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. Defendant’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 continuously 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 (six counts).

On this record I am unable to conclude, as does the majority, that disclosure of the informer’s identity was required. 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. (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 occasion. On neither occasion did he participate in the negotiations, nor was he even within hearing distance (see Gilmore v. United States, 256 F. 2d 565, 567) and he did not witness the most crucial step — the actual exchange of drugs—which occurred outside the bar. (See United States v. Paz-Sierra, 367 F. 2d 930, 931; United States v. Russ, 362 F. 2d 843, 845.)

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, Ann., Accused’s Rights — Informer — Identity, 76 ALR 2d 262, § 13, subd. [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.)

Also, the identification 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 identified the defendant as he slowly cruised by the arrest scene. His in-court identification was positive and Lorenzo testified 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 transactions 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, informers play a crucial role and the privilege should yield only for the most cogent reasons. Indeed, it has been estimated that 95% of all Federal narcotics cases are obtained as the result of the work of informers. (Williams, The Defense of Entrapment and Belated 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 complaining witness and of necessity must rely on informers, frequently 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 disclosure is required where the informer merely brought the undercover agent and the drug seller together on one occasion. 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 enforcement to deal effectively with the drug problem and to penetrate 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 Division should be reversed and the judgment of conviction reinstated.

In People v. Goggins: Order affirmed.

Chief Judge Breitel and Judges Jones, Stevens and Rabin concur with Judge Wachtler ; Judge Jasen dissents and votes to reverse in a separate opinion in which Judge Gabrielli concurs.

In People v. Brown: Order affirmed.

Chief Judge Breitel and Judges Jones, Stevens and Rabin concur with Judge Wachtler; Judges Jasen and Gabrielli concur in result only. 
      
       The existence of the informer was brought out only on cross-examination of Barnes. In presenting their ease, the People did not rely in any manner on information supplied by the informer.
     