People v. Pena-Martinez

Nov 19, 1997
Versions:244 A.D.2d 899
665 N.Y.S.2d 207
1997 N.Y. App. Div. LEXIS 12242

—Judgment unanimously affirmed. Memorandum: Following a reversal of his judgment of conviction by this Court (People v Pena-Martinez, 206 AD2d 858, lv denied 84 NY2d 938), defendant was retried and convicted of criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]) and criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]). During the retrial, the undercover officer was asked on cross-examination to disclose the name of the confidential informant who was present during meetings subsequent to the sale. Supreme Court, rejecting defendant’s contention that the question was relevant under People v Goggins (34 NY2d 163, cert denied 419 US 1012), sustained the prosecutor’s objection. Although the informant’s identity was not disclosed, a missing witness charge based upon the People’s failure to call the informant as a witness was given.

We reject defendant’s contention that the court erred in sustaining the prosecutor’s objection. While the central purpose of “the Goggins mandate * * * is to make an informant possessing material and relevant information available to the defense for examination at trial” (People v Jenkins, 41 NY2d 307, 309), Goggins does not establish that defendant has the right to disclosure of an informant’s identity to the jury without first seeking a ruling from the court. By failing to move for disclosure of the informant’s identity or to set forth a basis for disclosure, defendant failed to preserve for our review his contention that the court should have directed the prosecutor to disclose the informant’s identity (see, People v Medina, 53 NY2d 951). “Since the [prosecutor] was obviously unwilling to permit the witness to disclose the informant’s identity, it was incumbent upon defendant to seek a judicial ruling on the question if he believed that disclosure would be helpful to his case” (People v Medina, supra, at 952). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal *900from Judgment of Supreme Court, Monroe County, Sheridan, J.—Criminal Sale Controlled Substance, 1st Degree.) Present—Denman, P. J., Pine, Wisner, Balio and Boehm, JJ.