| People v Givans |
| 2019 NY Slip Op 02220 [170 AD3d 1638] |
| March 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v AlA. Givans, Appellant. |
Law Offices of Kevin A. Lane PLLC, Buffalo (Kevin A. Lane of counsel), fordefendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (Zakary I. Woodruff of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (James P. McClusky, J.), renderedMarch 31, 2016. The appeal was held by this Court by order entered December 22, 2017,decision was reserved and the matter was remitted to Jefferson County Court for furtherproceedings (156 AD3d 1470 [2017]). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,those parts of the omnibus motion seeking to suppress tangible property and statements aregranted, the indictment is dismissed, and the matter is remitted to Jefferson County Court forproceedings pursuant to CPL 470.45.
Memorandum: We previously concluded that County Court erred in denying defendant'srequest for a Darden hearing, and we therefore held the case, reserved decision, andremitted the matter for the court to conduct an appropriate hearing (People v Givans, 156AD3d 1470, 1470-1471 [4th Dept 2017]). Upon remittal, the court held a hearing in defendant'sabsence. The People offered only the alleged confidential informant's death certificate, which thecourt received in evidence. There was no testimony. Before the hearing, defendant was provideda redacted copy of the death certificate and was allowed to submit questions. After the hearing,the court concluded that the People could not produce the informant despite their diligent effortsand had established the existence of the informant through extrinsic evidence. That was error.We therefore reverse the judgment, grant those parts of defendant's omnibus motion seeking tosuppress tangible property and his statements, and dismiss the indictment.
The People must produce a confidential informant for an ex parte hearing upon defendant'srequest where, as here, they rely on the statements of the confidential informant to establishprobable cause (see People v Edwards, 95 NY2d 486, 493 [2000]; People vDarden, 34 NY2d 177, 181 [1974], rearg denied 34 NY2d 995 [1974]). At such ahearing, the court "should take testimony, with recognition of the special need for protection ofthe interests of the absent defendant, and make a summary report as to the existence of theinformer and with respect to the communications made by the informer to the police to which thepolice testify. That report should be made available to the defendant and to the People, and thetranscript of testimony should be sealed to be available to the appellate courts if the occasionarises" (Darden, 34 NY2d at 181). The purpose of the Darden hearing is to verify"the truthfulness of the police witness's testimony about his or her dealing with a knowninformant" (People v Adrion, 82 NY2d 628, 635 [1993]) by ensuring that the informantexists and that he or she provided the police with information about the specified criminalactivity (see People v Jones, 149AD3d 1580, 1581 [4th Dept 2017], lv denied 29 NY3d 1129 [2017]; People v Hernandez, 143 AD3d1280, 1281 [4th Dept 2016], lv denied 29 NY3d 1080 [2017]). The goal is to allay"any concerns that the informant 'might have been wholly imaginary and the communicationfrom him [or her] entirely fabricated' " (Hernandez, 143 AD3d at 1281,quoting Darden, 34 NY2d at 182; see Adrion, 82 NY2d at 635-636).
There are, however, exceptions to the requirement that the People produce a confidentialinformant for a Darden hearing. If the People succeed in making a threshold showing thatthe informant "is unavailable and cannot be produced through the exercise of due diligence"(Adrion, 82 NY2d at 634; see Edwards, 95 NY2d at 494), they are permittedinstead to establish the existence of the informant by extrinsic evidence (see Edwards, 95NY2d at 493; People v Carpenito, 80 NY2d 65, 68 [1992]).
Even assuming, arguendo, that the People succeeded here in making such a thresholdshowing, we conclude that they nevertheless failed to establish the existence of the informant byextrinsic evidence (see People v Phillips, 242 AD2d 856, 856 [4th Dept 1997]). Theevidence establishes only that a deposition was executed in the name of the alleged confidentialinformant, that the police obtained a search warrant using the deposition, and that a deathcertificate was later issued for a person having the same name as the confidential informant.There is no evidence that the alleged informant actually made the statements attributed to her(cf. Jones, 149 AD3d at 1581; Hernandez, 143 AD3d at 1281). The People couldhave met their burden by offering the testimony of a police witness, which is evidence that isexplicitly contemplated in Darden. Yet, they did not. Without it, there is nothing to refutethe possibility that the police fabricated the statements in the informant's purported deposition inorder to conceal the fact that information critical to the probable cause inquiry was insteadobtained through illegal police action.
In light of the foregoing, we need not consider the remaining contentions in defendant's mainand supplemental briefs. Present—Whalen, P.J., Smith, Carni, Troutman and Winslow,JJ.