
    The People of the State of New York, Respondent, v Thomas Jenkins, Appellant. The People of the State of New York, Respondent, v John Daniel, Appellant. The People of the State of New York, Respondent, v Benjamin Law, Appellant.
    Argued November 22, 1976;
    decided February 10, 1977
    
      
      Peter L. Yellin, Public Defender (Edward J. Nowak of counsel), Rochester, for appellants in the first and second above-entitled actions.
    
      Lawrence T Kurlander, District Attorney (Michael Nelson of counsel), Rochester, for respondent in the first and second above-entitled actions.
    
      Peter L. Yellin, Public Defender (Andrew C. Fine of counsel), Rochester, for appellant in the third above-entitled action.
    
      Lawrence T. Kurlander, District Attorney (Edward J. Spires of counsel), Rochester, for respondent in the third above-entitled action.
    
      People v Jenkins and People v Daniel
    
   Gabrielli, J.

The primary issue on this appeal is the obligation of the People to produce at trial a confidential informant once in the control of the police, who has become unavailable through no intention of the prosecutor, but through the otherwise excusable or justifiable act of the prosecutor. Because the charges against them arose from the same transaction involving the sale of narcotics, the defendants were tried together. The identity of the confidential informant, Pat Adams, was revealed on cross-examination of prosecution witnesses and at the close of the People’s case, the defendants sought the production of the informant. It was revealed that she had moved to Florida, having departed New York by means of a plane ticket provided by the Drug Enforcement Administration. The trial court denied defendants’ motion for production of the informant stating that, while disclosure was required in this case, it would not be appropriate to require production. The defendants were convicted of the criminal sale of narcotics, and the convictions have been affirmed by the Appellate Division.

In People v Goggins (34 NY2d 163, 169-170, cert den 419 US 1012), we articulated standards governing the disclosure of the identity of a confidential informant, indicating that the defendant "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” and that "the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innocence of the accused” (see, also, People v Pena, 37 NY2d 642, 644-645). We also stated that production of the witness "if appropriate” may be directed by the court. Goggins did not treat with the problems arising from the unavailability of the informant to both the prosecution and the defense at the time of trial.

We emphasize that the right to production does not flow from the right to disclosure (see United States v Gentile, 495 F2d 626; United States v Super, 492 F2d 319, cert den sub nom. Burns v United States, 419 US 876; Wilson v United States, 409 F2d 184, cert den 395 US 983; United States v Cimino, 321 F2d 509). However, once the Goggins test is satisfied, where an unavailable informant is or has been under the employ or control of law enforcement authorities, the People have a duty to produce the informant or exert diligent efforts to effect the production of the informant for the defense. This follows almost apodictically from the Goggins mandate, the essential purpose of which is to make an informant possessing material and relevant information available to the defense for examination at trial. The difficulty arises, however, when reasonable efforts to locate the informant prove unsuccessful. In this case we do not have a situation where the People intentionally removed the informant from the jurisdiction in order to prevent her from testifying at trial (e.g., Hernandez v Nelson, 298 F Supp 682, affd 411 F2d 619). The record does not suggest any such "sinister motive” or bad faith on the part of the prosecution in assisting the informant to move to Florida (see, e.g., United States v Super, 492 F2d 319, 321, n 2, supra; United States v Noah, 475 F2d 688, 691, n 2). While law enforcement authorities provided funds which enabled the informant to leave Rochester, she decided on her own initiative to move to Florida because of her stated fear for her own personal safety. Moreover, there is no indication that the People were in any way responsible for the informant’s ultimate disappearance following her arrival in Sanford, Florida.

The Trial Judge found that the prosecution undertook diligent efforts to locate the missing informant through the services of New York, Florida and Federal law enforcement agencies. Thus, the question presented in this case is whether, under these circumstances, in light of the efforts to locate the informant on the part of the People and in the absence of bad faith, the People may be required to produce an unavailable informant who had previously been under their control or, in the alternative, forfeit their case against the defendants.

The ultimate concern, as Goggins aptly articulated, is the defendant’s "right of confrontation, due process, and fairness” (supra, p 168). At the same time, the People should not be penalized when the informant has, on his or her own initiative, effectively disappeared after relinquishment of government control. Thus, in order to compel production, or dismissal of the charges under the circumstances presented in this case, we conclude that the defendant must meet a higher burden and demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution’s case either through direct examination or impeachment. While this approach has been utilized in situations involving nontestimonial exculpatory evidence withheld by the prosecution (see, e.g., United States v Agurs, 427 US 97, 110-111; Brady v Maryland, 373 US 83), we think it should apply here where a defendant seeks the production of a witness alleged to have been under the control of the People.

In sum, we are not here concerned with a case dealing with a bad faith removal of a critical or material witness. Nor, of course, does this case involve inadequate efforts to ascertain the whereabouts of a missing material witness who was once under the control of the People and whose disappearance was in any fashion due to such prosecutorial bad faith. Likewise, we are not here involved with an obligation to produce any claimed or demonstrated exculpatory nonwitness evidence as in Brady v Maryland (supra) or United States v Agurs (supra). Requirements to disclose the identity of an informant, to produce exculpatory nontestimonial evidence or to produce a witness under prosecutorial control touch tangentially upon the question presented in this case. However, we are not here directly concerned with the rules governing these situations for, although they too are concerned with the relevance and materiality of the evidence sought with respect to the question of guilt, each of these situations is subject to somewhat differing standards.

We intend by our holding to make it clear that if it is demonstrated that the prosecutor once had the informant under his control and was responsible for his disappearance, there should be a duty to produce and if this be impossible of accomplishment, then he may be faced with dismissal of the charge, or a new trial may be appropriate. However, if the prosecutor exerts reasonable good faith efforts to make the witness available, then neither dismissal of the charges may be ordered nor a new trial directed unless the defendant demonstrates affirmatively that the testimony of the informant was not only relevant but also that it is likely to have been favorable to some degree in tending to exculpate the defendant or, alternatively, he must show the existence of a significant likelihood that the witness’ testimony could be impeached to a meaningful degree creating a doubt as to the reliability of the prosecutor’s case.

Here the defendants demonstrated that the informant might give relevant testimony on a material issue, but they failed to satisfy the higher burden of establishing a likelihood that her testimony would tend, to a significant degree, to exculpate them to the extent that there should be a dismissal or a new trial.

Thus, each of the defendants initially had the burden of demonstrating the materiality and relevance of the informant’s testimony to his case under Goggins. The Trial Judge held that this burden was satisfied in this case and we do not disturb that conclusion based on the exercise of sound discretion. Once that burden is satisfied, the defendants were entitled to disclosure of the informant’s identity and, at least, diligent efforts toward the production of an unavailable informant once under the control of the People. An absolute duty of production, or, alternatively, dismissal of the prosecution’s case, is required only where the People have intentionally procured the disappearance of the informant when they knew or should have known that the testimony would be material and relevant to the defense, or have exerted inadequate efforts to locate the informant, to avoid his or her presence at trial.

In the case where diligent efforts have been exercised, however, a defendant must satisfy a higher standard of materiality and relevance. In the instant cases, where it was found that such efforts were undertaken, we conclude that the defendants have not shouldered this burden. It is claimed that Jenkins was merely used by defendant Daniel to hand over a package of heroin to a purchaser and that he had no knowledge of its contents. Jenkins chose not to testify but relied on Daniel’s testimony concerning the transaction to establish this defense. However, there was only minimal contact between Jenkins and the informer and it is not alleged in what manner the testimony of Miss Adams could have assisted him in demonstrating his lack of knowledge of the nature of the transaction in which he was concededly engaged.

Daniel based his defense on the contention that he was acting as an agent of the informant Pat Adams (cf. People v Lindsey, 16 AD2d 805, affd 12 NY2d 958) and handled the drugs only as a favor to her. Doubt was cast upon this defense by the testimony of one of Daniel’s customers who stated that he had had prior drug dealings with Daniel.

The People established their case, and defendants have not demonstrated that the testimony of the informant would tend to be exculpatory or in any way weaken the prosecution’s case against them.

The discussion by the dissenter would be persuasive if, but only if, there was the slightest suggestion in the record that Pat Adams’ testimony would to the slightest degree establish any of the facts influencing the issue of guilt or innocence of the defendants. The fact is, however, that there is nothing except defendants’ exploitation of her unavailability in order to speculate that maybe somehow, in some way, or in some fertile imagination, her testimony might provide something.

We have examined the other claims advanced by the defendants and we find them to be without merit. Hence, the convictions should not be disturbed.

Accordingly, the orders of the Appellate Division should be affirmed.

People v Law

Memorandum. We reverse the order of the Appellate Division and direct that a new trial be had.

Defendant’s plaint that the Trial Judge erred in refusing to compel production of the unavailable informant or, in the alternative, to dismiss the indictment, is rejected for the reasons stated in People v Daniel and Jenkins (decided herewith). This case involves the same informant as in the Daniel and Jenkins cases, and raises the same issue treated by our determination in those cases. The Trial Judge found, and correctly we think, that the prosecution exercised diligent efforts in attempting to locate the informant for the defense.

We conclude that the defendant has not met the burden of showing the materiality and relevance of the informant’s testimony to a significant degree sufficient to establish the likelihood that her testimony would tend to exculpate him. The defendant was charged with making two separate sales to Inspector Herritage, an undercover officer, who testified to the transactions involving the sale of narcotics. His defense, in part, was that he did not know Herritage and had never seen him. The prosecution, however, established, through the testimony of three witnesses, that meetings had taken place between the defendant and Herritage. Indeed, the Appellate Division (p 233), concluded that Law’s guilt had been "overwhelmingly established by eyewitness testimony”.

Defendant’s request, however, that the jury be instructed that possession of heroin is a lesser included offense of its sale should have been granted since, on the facts of this case, the jury was "free to accept or reject part or all of the defense or prosecution’s evidence” (People v Henderson, 41 NY2d 233, 236; People v Malave, 21 NY2d 26).

Fuchsberg, J. (dissenting).

As I see it, the primary problem. we face in this case is not so much with the articulation of legal principles but, rather, as is so often true, how they are applied to the facts at hand. That, of course, is the truest measure of the meaning of the words with which we give expression to our ideas. On my analysis, that observation has particular pertinence here because, by almost any supportable legal standard, I believe we are required to hold that (1) the unavailability of Pat Adams deprived the defendants of a fair trial and (2) the People were responsible for her unavailability

The Witness Adams’ Importance

The events in which Adams played a crucial role in this case, as well as in the companion case of People v Law, were central to the determination of the defendants’ guilt or innocence.

Without question, the Jenkins and Daniel cases are intertwined. As to each one of these defendants, the People’s chief witness was its undercover agent, Herritage, who testified that the events which concern us were initiated when Adams, a prostitute and paid confidential informer, left the agent’s car, approached Daniel on the street and there engaged him in a conversation of which Herritage did not claim he overheard any part. Since neither Herritage nor Daniel ever asserted that any other person was present at this conversation, in the absence of Adams the court could look to no one but Daniel, who took the stand in his own defense, to recount what he and Adams had had to say to one another; Daniel swore that it consisted of a plea that he find someone who would sell her drugs which she desperately needed because she was sick. Largely posited on that conversation, Daniel’s defense, i.e., that the relationship between himself and Adams, who, admittedly was then acting on behalf of the police, was that of principal and agent, a fact which, if credited, would preclude conviction (see People v Lindsey, 16 AD2d 805, affd 12 NY2d 958), could be verified or discredited by Adams alone.

Nor was that all. Herritage further testified that, following the afore-mentioned conversation, Daniel and Adams entered Herritage’s car and that, at that time, Herritage asked Daniel to sell him some heroin and advanced some money to Daniel for that purpose. At trial, Daniel denied the truth of this second conversation. Since, according to Herritage himself, no one else but the three of them were present at this second conversation, again Adams’ testimony would have gone to the heart of the matter.

At trial, Herritage went on to relate how the same three had next met at a bar a short time later that day.'Daniel, who admitted this second meeting took place, was accompanied there by Jenkins, who was a tenant of Daniel, and, according to Daniel, ignorant of the contents of a package that Daniel had asked him to hold contained heroin, which Daniel claimed he purchased earlier that day in compliance with Adams’ request. No witness contradicted Daniel’s testimony as to how Jenkins came to be present and, as a consequence, proof of the latter’s knowing participation, as a practical matter, was in this instance almost entirely dependent on whether Daniel was to be believed or not. Also, at this meeting, again according to Herritage, Jenkins, though saying nothing, handed him the package; Daniel’s testimony, on the other hand, was that Jenkins had handed the drugs to Adams, which presumably would bear out the story that it was for her and not for Herritage. Thus as to every phase of their dealings, Adams, if produced, was key to the resolution of the sharp conflict between Herritage’s and Daniel’s stories.

Not even the back-up police officers who, at the various times, had seen Adams, Herritage, Daniel or Jenkins together, were able to shed a single ray of light on the actual conversations or transactions. As Mr. Justice Robert Kennedy, the Trial Judge, noted, the informer "was the only person in a position to corroborate the testimony of either Officer Herritage or the defendant”. It seems impossible therefore to suggest that her production would not be vital to the ultimate issue of guilt or innocence and even more impossible to suggest that it was not "relevant” or "material” or adequate to satisfy the so-called "higher standard of materiality and relevance” referred to by the majority.

Review of the facts in the companion Law case, which was argued before us jointly with those of Jenkins and Daniel, serves to underline that the People were bound to know that Adams would be crucial to the defense of these cases. As to all three, the alleged crimes were committed at about the same time, the police operatives were identical and the disappearance of Adams had a like effect.

At Law’s trial, Herritage testified that, having been introduced to that defendant by Adams, he told Law that he wished to purchase heroin. According to Herritage, the three of them then went to another building, where Herritage gave the defendant $130 and the defendant handed him some packets of heroin in return. At the trial, Law denied either of these transactions. Since, aside from the undercover agent and the defendant, the only other person present was Adams, it is obvious the determination of which of them was telling the truth would likely turn on her testimony.

Herritage went on to testify to a second purchase of heroin from Law. This was three days later; once again, he claimed Adams was the only other person present. Once again, as in Jenkins-Daniel, not one of the back-up officers had overheard the conversations or seen anything pass between Herritage and Law. Obviously, then, Adams alone was the only other one in a position to bring firsthand knowledge of the events to the fact-finding process.

In the light of all the foregoing, I confess I am at a loss to understand how the majority can suggest that there is nothing to show that Adams’ testimony "in some way, or in some fertile imagination * * * might provide something” when in fact it is difficult to conceive of anyone in this case in a position to provide more. I can only speculate, therefore, that what the majority intends to say is that the defendants were required to prove that her testimony would have been favorable to them. To ask that, especially in these cases, where the informer has not only been no more, available to the defendants for interview than she was for testimony and where a shielding custodial relationship between the police and herself persisted from a time prior to the commission of the alleged crimes right through the entire period until they permitted her to vanish, would, I respectfully suggest, be but to mock the fundamental "right[s] to confrontation, due process, and fairness” of which we wrote so earnestly in People v Goggins (34 NY2d 163, 168, cert den 419 US 1012) and upon which the ability of a defendant to resist wrongful conviction is utterly dependent.

The Informer’s Unavailability

As indicated, until they assisted her in her departure for Florida, the People maintained close control of Adams; the crimes were committed in the Jenkins-Daniel case on October 25, in the Law case on October 23 and 26. The record shows that since even on an earlier date, October 11, 1973, Adams was in the custody of the Monroe County Sheriff; by November 16, 1973 the authorities at their expense had checked her into the Rochester Flagship Hotel under an assumed name where she could be kept under effective surveillance; on December 6, 1973, they took her directly from there to the airport. They certainly were aware of the fact that only Adams, Herritage and the defendants had witnessed the sales, the payments and the deliveries on which these prosecutions were grounded; for whatever they may have been worth, even the collateral issues as to credibility that arose at trial were then still matters for the future. Defendants’ motion for disclosure of the informer’s identity, albeit unsuccessful, also alerted the People both to the fact that the defendants believed Adams was being maintained at the Flagship Hotel under the People’s control and that they would probably seek Adams’ production.

It therefore challenges credulity that the People not only assisted in Adams’ departure from the jurisdiction, but appeared almost to have deliberately avoided any effort to maintain continuing contact with her thereafter. It would have been a simple matter to arrange that she be met and her intended whereabouts ascertained when she alighted in Orlando, Florida, all the more so since the co-operation of the Federal authorities, who had provided the funds for the flight, was available to the People; instead, the police never even so much as asked her for a forwarding address. Not once, until months later, when, at the trial court’s prompting, they for the first time engaged in a last-minute, overnight and, not surprisingly, fruitless attempt to learn her whereabouts, mostly limited at that eleventh hour to the use of the long distance telephone, had they lifted a finger to ascertain her location. This hardly should be described by such adjectives as "diligent”, "adequate” or "reasonable”.

It must be remembered that this picture of neglect, if that is all it was, is that of a specialized professional police unit sophisticated in the ways of confidential informers and undercover agents and highly trained in all aspects of drug law enforcement. After all, they had the occasion to learn her state of mind, to know how helpful or harmful her testimony was likely to be to each side. Indeed, it would be naive to fail to conclude from the signposts provided by this seemingly practiced avoidance of even a minimal effort to maintain contact with Adams that there was not at least a calloused unconcern, if not a conscious hope, that things would end up, as indeed as they did, with her unavailability at the time of trial. If these circumstances do not require a finding of bad, faith as such, they at least rise to the level of such reckless disregard for the elementary rights of each defendant to a fair trial as to constitute its equivalent (see United States v Agurs, 427 US 97; Brady v Maryland, 373 US 83, 87; People v Kiihoa, 53 Cal 2d 748; Hernandez v Nelson, 298 F Supp 682, affd on opn below 411 F2d 619).

Accordingly, reversal and dismissal is called for in each case.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler and Cooke concur with Judge Gabrielli; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

In People v Jenkins and People v Daniels: Order affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg dissents in part and votes to reverse and dismiss the indictment in a separate opinion.

In People v Law: Order reversed, etc. 
      
      . Pat Adams had reported to the police that threats against her had been made and her apartment had been broken into; and even after the People moved her to a hotel where she could be better protected, she continued to be fearful of her safety.
     
      
      . I would note that the presence of the informant in another State does not, strictly speaking, render the informant unavailable to the defendant. CPL 640.10 (subd 3) sets forth the procedure for securing the attendance of a witness from without the State in criminal cases, and that section itself requires the defendant to show that the witness sought is material and relevant to the defense (see People v McCartney, 38 NY2d 618).
     