70 A.D.2d 884 | N.Y. App. Div. | 1979
— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 24, 1976, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. At the trial the evidence produced by the prosecution showed that the undercover police officer purchased cocaine from the defendant, after a confidential informant had introduced the officer to the defendant and had negotiated with the defendant for the purchase. The defendant requested that the court order the prosecution to produce the confidential informant. The court then held an in camera hearing pursuant to People v Goggins (34 NY2d 163, cert den 419 US 1012), at which the confidential informant appeared, together with the prosecutor. The defendant and his attorney were not present at the hearing. Following the hearing, the court denied the defendant’s request. The minutes of the hearing disclose that the court interrogated the confidential informant without having him sworn. This was error. Every witness over 12 years of age may testify only under oath, unless he suffers from a mental disease or defect which renders him unable to understand the nature of an oath (CPL 60.20, subd 2). That requirement serves two purposes — to alert the witness to the moral duty to testify truthfully and to deter false testimony through the sanction of a perjury prosecution (People v Parks, 41 NY2d 36, 45). All proceedings of a judicial character connected with a criminal trial must be governed by that requirement (cf. Matter of Steven B., 30 AD2d 442; People v Masiano, 253 App Div 454). A Goggins hearing, even though conducted in camera, means that the testimony of the confidential informant shall be taken. "The Judge 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