| People v Givans |
| 2017 NY Slip Op 09066 [156 AD3d 1470] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v AlA. Givans, Appellant. |
Coutu Lane, PLLC, Buffalo (Kevin A. Lane of counsel), for defendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (George R. Shaffer, III, of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (James P. McClusky, J.), renderedMarch 31, 2016. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the third degree and criminally using drug paraphernalia in thesecond degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toJefferson County Court for further proceedings in accordance with the following memorandum:On appeal from a judgment convicting him upon a jury verdict of criminal possession of acontrolled substance in the third degree (Penal Law § 220.16 [1]) and criminallyusing drug paraphernalia in the second degree (§ 220.50 [3]), defendant contendsthat County Court erred in denying his request for a Darden hearing (see generallyPeople v Darden, 34 NY2d 177, 181 [1974], rearg denied 34 NY2d 995 [1974]). Weagree. Where, as here, there is insufficient evidence to establish probable cause supporting asearch warrant without the statements of a confidential informant, the People must make theinformant available for questioning in camera (see People v Allen, 298 AD2d 856, 856[4th Dept 2002], lv denied 99 NY2d 579 [2003]; see generally People v Crooks, 27 NY3d 609, 612-613 [2016]). If,however, the informant cannot be produced despite the diligent efforts of the People, "the Peoplemay instead 'establish the existence of [the] confidential informant[ ] through extrinsic evidence'after demonstrating that 'the informant is legitimately unavailable' " (People vEdwards, 95 NY2d 486, 493 [2000]). Here, the court summarily denied defendant's requestupon the People's bare assertion that the informant was in California and thus unavailable.Although the People subsequently produced an unsworn letter, purportedly from the informant'sdrug treatment facility in California, stating that the informant required uninterrupted care, thatletter, without more, is insufficient to demonstrate that the informant was legitimatelyunavailable. We conclude that the People failed to establish that an exception to theDarden rule is applicable, and thus the court erred in denying defendant's request for aDarden hearing (see People v Carpenito, 171 AD2d 45, 53-54 [2d Dept 1991],affd 80 NY2d 65 [1992]). We therefore hold the case, reserve decision, and remit thematter to County Court to conduct an appropriate hearing, at which the People will not beprecluded from offering evidence that the informant is currently unavailable.Present—Whalen, P.J., Smith, Carni, Troutman and Winslow, JJ.