Opinion
4842.
Decided February 1, 2007.
Motion by the prosecution for a protective order ( Criminal Procedure Law § 240.50) delaying the discovery of undercover audio recordings until the time of trial.
Defendant is charged by a two-count indictment with having allegedly committed the crimes of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1]) and criminal possession of a controlled substance in the third degree ( Penal Law Section § 220.16[1]), both class B felonies. The charges arise out of an incident allegedly occurring on May 27, 2005.
Defendant served a demand for discovery seeking copies of any tape or electronic recordings made during the course of the alleged criminal transaction which the prosecution intended to use at trial. In its response, the prosecution stated its intent to use such recordings but refused to disclose them to the defendant citing an unspecified need to protect the confidential informant. Defendant filed an omnibus motion ( Criminal Procedure Law §§ 255.10-255.20) seeking, among other things, an order directing disclosure. The prosecution again opposed disclosure on the same general grounds, but did not seek a protective order. By a decision and order of this Court dated January 4, 2007, the Court granted the Defendant's motion for disclosure and directed the prosecution to furnish the recordings to Defendant's counsel. The prosecution filed the instant motion claiming that the release of the audio recordings will compromise the safety of their confidential informant, the identity of whom, they claim, can be discerned through said audio recordings.
Criminal Procedure Law § 240.50 grants the Court broad discretion to "issue a protective order denying, limiting, conditioning, delaying or regulating discovery for good cause, including any constitutional limitations, . . . which outweighs the usefulness of discovery" ( Criminal Procedure Law § 240.50[1]). Whenever the prosecution seeks to shield a witness's identity, the court must undertake a three-step inquiry ( see People v. Waver, 3 NY3d 748, 788 NYS2d 630, 821 NE2d 934; People v. Stanard, 42 NY2d 74, 396 NYS2d 825, 365 NE2d 857). Initially, the prosecution must make a showing as to why the confidentiality of the witness must be protected. Once such a showing has been made, the burden then shifts to the defense to offer proof as to how the requested information is material to the issue of the defendant's guilt or innocence. Finally, the court must weigh the defendant's Sixth Amendment right to confront witnesses against the particular witness's interest in remaining anonymous. The court's task is to perform a substantive analysis involving "constitutional and policy considerations related to the right to confrontation, due process, and fairness . . . [and] to the risk of wrongfully convicting the innocent" ( People v. Goggins, 34 NY2d 163, 168, 356 NYS2d 571, 574, 313 NE2d 41, 44).
"Limiting the adversary stance in criminal prosecutions, the State is obliged to disclose to a defendant evidence and witnesses possessed by or known to the prosecution which may establish his innocence ( Brady v. Maryland, 373 US 83, 86-87, 83 SCt 1194, 10 LEd2d 215; see, also, Moore v. Illinois, 408 US 786, 794-795, 92 SCt 2562, 33 LEd2d 706). That such evidence or knowledge may involve prosecutorial privileges of one sort or another is to no avail ( Roviaro v. United States, 353 US 53, 60-61, 77 SCt 623, 1 LEd2d 639). 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, 77 SCt 623). ****** 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'. [ citations omitted] 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. [ citations omitted]
******
In other words the truly crucial factor in every case is the relevance of the informer's testimony to the guilt or innocence of the accused."
( Id., at 168, 356 NYS2d 574 — 576, 313 NE2d 43-45)
When the role of a confidential informant is a decisive factor in determining guilt, disclosure of identity must be made ( People v. Boyling, 84 AD2d 892, 892-893, 444 NYS2d 760, 761). Good cause for delaying disclosure of identity can only be justified when there exists actual risk of harm or intimidation of the witness, whether by Defendant's past conduct or present intention ( see People v. Robinson, 200 AD2d 693, 606 NYS2d 908, appeal denied 84 NY2d 831, 617 NYS2d 152, 641 NE2d 173; People v. Taylor, 91 AD2d 729, 457 NYS2d 1005; People v. Leon, 134 Misc 2d 757, 512 NYS2d 991).
In this case, the confidential informant is the crucial witness relating to the guilty or innocence of the Defendant since the informant set up and personally engaged in the underlying transaction with the Defendant. The prosecution has failed to make any showing whatsoever as to why the identity of the confidential informant must remain protected. Rather, only a conclusory allegation has been made that the informant's safety could possibly be in jeopardy should the information be released, without any supporting factual averments. The prosecution's bare speculations, wholly unsupported by facts, do not demonstrate good cause to delay the release of the audio recordings or the identity of the confidential informant.
There being no good cause shown for the issuance of a protective order, and the Defendant's right to the audio recordings of the alleged criminal transaction being both clearly protected by statute ( Criminal Procedure Law § 240.20[g]) and critically relevant to his guilt or innocence, the motion is in all respects denied. The prosecution is directed to disclose any and all audio recordings of the alleged criminal transaction within three (3) days of this decision and order.
IT IS SO ORDERED.
Decision and Order signed this 1st day of February, 2007, at Elizabethtown, New York.