Opinion
August 10, 1981
Appeal by defendant from a judgment of the Supreme Court, Kings County (Held, J.), rendered November 28, 1975, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial of defendant's pro se motion for production of an informant at a suppression hearing. Case remitted to Criminal Term for the holding of an in camera hearing and the furnishing of a report to this court in accordance with the guidelines set forth in People v. Darden ( 34 N.Y.2d 177), and the appeal is held in abeyance in the interim. (See People v. Patti, 59 A.D.2d 949; People v. Bieniek, 60 A.D.2d 777; cf. People v. Havelka, 45 N.Y.2d 636; People v. Malinsky, 15 N.Y.2d 86.) Criminal Term is to file its report with all convenient speed. The record reveals that apart from the information given to the arresting officer by the informant, there was insufficient evidence to justify the detention and frisk of defendant. (Cf. Sibron v. New York, 392 U.S. 40; People v. Howard, 50 N.Y.2d 583.) Therefore the court should have held an in camera examination of the informant. (See People v. Darden, 34 N.Y.2d 177, supra.) The fact that defendant did not specifically ask for an in camera hearing is irrelevant. He did ask for the production of the informant, verification of the informant's reliability, and corroboration that in fact the informant told the officer what the officer reported on the stand. More is not needed. People v Leyva ( 38 N.Y.2d 160, 170-172) is not to the contrary. In Leyva the suppression hearing was held before the Darden decision. The requirement of an in camera examination of an informant, set down in People v. Darden (supra), was a prospective rule only. The defendant in the later case did not receive the benefit of it, nor did the defendants in People v. Huggins ( 36 N.Y.2d 827) or People v. Singletary ( 37 N.Y.2d 310). In fact, in People v Huggins (supra) the defendant specifically requested an in camera examination, but because the hearing was before the Darden decision, the Court of Appeals upheld the refusal to grant such an examination. The situation is analogous to a request for inspection of Grand Jury minutes and dismissal of an indictment for insufficiency of evidence. Such a motion is considered a motion for in camera inspection of the minutes by the court. (People v. Howell, 3 N.Y.2d 672.) That judicial rule has been codified in CPL 210.30 (subd 2). Gulotta, J.P., Cohalan, O'Connor and Bracken, JJ., concur.