Opinion
288 KA 16–00732
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Al A. GIVANS, Defendant–Appellant.
LAW OFFICES OF KEVIN A. LANE PLLC, BUFFALO (KEVIN A. LANE OF COUNSEL), FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (ZAKARY I. WOODRUFF OF COUNSEL), FOR RESPONDENT.
LAW OFFICES OF KEVIN A. LANE PLLC, BUFFALO (KEVIN A. LANE OF COUNSEL), FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (ZAKARY I. WOODRUFF OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, those parts of the omnibus motion seeking to suppress tangible property and statements are granted, the indictment is dismissed, and the matter is remitted to Jefferson County Court for proceedings pursuant to CPL 470.45.
Memorandum: We previously concluded that County Court erred in denying defendant's request for a Darden hearing, and we therefore held the case, reserved decision, and remitted the matter for the court to conduct an appropriate hearing ( People v. Givans , 156 A.D.3d 1470, 1470–1471 [4th Dept. 2017] ). Upon remittal, the court held a hearing in defendant's absence. The People offered only the alleged confidential informant's death certificate, which the court received in evidence. There was no testimony. Before the hearing, defendant was provided a redacted copy of the death certificate and was allowed to submit questions. After the hearing, the court concluded that the People could not produce the informant despite their diligent efforts and had established the existence of the informant through extrinsic evidence. That was error. We therefore reverse the judgment, grant those parts of defendant's omnibus motion seeking to suppress tangible property and his statements, and dismiss the indictment.
The People must produce a confidential informant for an ex parte hearing upon defendant's request where, as here, they rely on the statements of the confidential informant to establish probable cause (see People v. Edwards , 95 N.Y.2d 486, 493, 719 N.Y.S.2d 202, 741 N.E.2d 876 [2000] ; 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] ). At such a hearing, the court "should take testimony, with recognition of the special need for protection of the interests of the absent defendant, and make a summary report as to the existence of the informer and with respect to the communications made by the informer to the police to which the police testify. That report should be made available to the defendant and to the People, and the transcript of testimony should be sealed to be available to the appellate courts if the occasion arises" ( Darden , 34 N.Y.2d at 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 ). The purpose of the Darden hearing is to verify "the truthfulness of the police witness's testimony about his or her dealing with a known informant" ( People v. Adrion , 82 N.Y.2d 628, 635, 606 N.Y.S.2d 893, 627 N.E.2d 973 [1993] ) by ensuring that the informant exists and that he or she provided the police with information about the specified criminal activity (see People v. Jones , 149 A.D.3d 1580, 1581, 53 N.Y.S.3d 776 [4th Dept. 2017], lv. denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ; People v. Hernandez , 143 A.D.3d 1280, 1281, 38 N.Y.S.3d 500 [4th Dept. 2016], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ). The goal is to allay "any concerns that the informant ‘might have been wholly imaginary and the communication from him [or her] entirely fabricated’ " ( Hernandez , 143 A.D.3d at 1281, 38 N.Y.S.3d 500, quoting Darden , 34 N.Y.2d at 182, 356 N.Y.S.2d 582, 313 N.E.2d 49 ; see Adrion , 82 N.Y.2d at 635–636, 606 N.Y.S.2d 893, 627 N.E.2d 973 ).
There are, however, exceptions to the requirement that the People produce a confidential informant for a Darden hearing. If the People succeed in making a threshold showing that the informant "is unavailable and cannot be produced through the exercise of due diligence" ( Adrion , 82 N.Y.2d at 634, 606 N.Y.S.2d 893, 627 N.E.2d 973 ; see Edwards , 95 N.Y.2d at 494, 719 N.Y.S.2d 202, 741 N.E.2d 876 ), they are permitted instead to establish the existence of the informant by extrinsic evidence (see Edwards , 95 N.Y.2d at 493, 719 N.Y.S.2d 202, 741 N.E.2d 876 ; People v. Carpenito , 80 N.Y.2d 65, 68, 587 N.Y.S.2d 264, 599 N.E.2d 668 [1992] ).
Even assuming, arguendo, that the People succeeded here in making such a threshold showing, we conclude that they nevertheless failed to establish the existence of the informant by extrinsic evidence (see People v. Phillips , 242 A.D.2d 856, 856, 662 N.Y.S.2d 875 [4th Dept. 1997] ). The evidence establishes only that a deposition was executed in the name of the alleged confidential informant, that the police obtained a search warrant using the deposition, and that a death certificate was later issued for a person having the same name as the confidential informant. There is no evidence that the alleged informant actually made the statements attributed to her (cf. Jones , 149 A.D.3d at 1581, 53 N.Y.S.3d 776 ; Hernandez , 143 A.D.3d at 1281, 38 N.Y.S.3d 500 ). The People could have met their burden by offering the testimony of a police witness, which is evidence that is explicitly contemplated in Darden. Yet, they did not. Without it, there is nothing to refute the possibility that the police fabricated the statements in the informant's purported deposition in order to conceal the fact that information critical to the probable cause inquiry was instead obtained through illegal police action.
In light of the foregoing, we need not consider the remaining contentions in defendant's main and supplemental briefs.