Opinion
1483 KA 16–00732
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Al A. GIVANS, Defendant–Appellant.
COUTU LANE, PLLC, BUFFALO (KEVIN A. LANE OF COUNSEL), FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (GEORGE R. SHAFFER, III, OF COUNSEL), FOR RESPONDENT.
COUTU LANE, PLLC, BUFFALO (KEVIN A. LANE OF COUNSEL), FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (GEORGE R. SHAFFER, III, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ) and criminally using drug paraphernalia in the second degree (§ 220.50[3] ), defendant contends that County Court erred in denying his request for a Darden hearing (see generally People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974], rearg. denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613 [1974] ). We agree. Where, as here, there is insufficient evidence to establish probable cause supporting a search warrant without the statements of a confidential informant, the People must make the informant available for questioning in camera (see People v. Allen, 298 A.D.2d 856, 856, 747 N.Y.S.2d 862 [4th Dept. 2002], lv denied 99 N.Y.2d 579, 755 N.Y.S.2d 715, 785 N.E.2d 737 [2003] ; see generally People v. Crooks, 27 N.Y.3d 609, 612–613, 36 N.Y.S.3d 440, 56 N.E.3d 222 [2016] ). If, however, the informant cannot be produced despite the diligent efforts of the People, "the People may instead ‘establish the existence of [the] confidential informant [ ] through extrinsic evidence’ after demonstrating that ‘the informant is legitimately unavailable’ " ( People v. Edwards, 95 N.Y.2d 486, 493, 719 N.Y.S.2d 202, 741 N.E.2d 876 [2000] ). Here, the court summarily denied defendant's request upon the People's bare assertion that the informant was in California and thus unavailable. Although the People subsequently produced an unsworn letter, purportedly from the informant's drug treatment facility in California, stating that the informant required uninterrupted care, that letter, without more, is insufficient to demonstrate that the informant was legitimately unavailable. We conclude that the People failed to establish that an exception to the Darden rule is applicable, and thus the court erred in denying defendant's request for a Darden hearing (see People v. Carpenito, 171 A.D.2d 45, 53–54, 574 N.Y.S.2d 218 [2d Dept. 1991], affd 80 N.Y.2d 65, 587 N.Y.S.2d 264, 599 N.E.2d 668 [1992] ). We therefore hold the case, reserve decision, and remit the matter to County Court to conduct an appropriate hearing, at which the People will not be precluded from offering evidence that the informant is currently unavailable.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Jefferson County Court for further proceedings.