People v Campbell

[*1] People v Campbell 2005 NY Slip Op 50975(U) Decided on June 17, 2005 Supreme Court, Kings County Goldberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 17, 2005
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

Oludare Campbell, DEFENDANT.



2316/04

Joel M. Goldberg, J.

The People's request to re-open the Mapp hearing held on May 17, 2005 and have an in camera Darden hearing, upon consideration of an undated memorandum of law and oral argument by the defendant and the People's memorandum of law, dated June 14, 2005, is granted.

FACTUAL BACKGROUND

Prior to the commencement of testimony at the May 17, 2005 Mapp hearing, defense counsel stated that because "there is a police confidential informant in this case," a Darden hearing was required in order for "the Court to independently determine the existence of the informant."

The Court stated, "[I]f I determine that it's necessary for the People to establish the existence of the informant after the suppression hearing, I will grant you the Darden hearing... I can't really decide whether or not you're entitled to a Darden hearing in a factual vacuum which is what I have, there is no written motion and there is no answer... I will hear the testimony at the suppression hearing and I will see if the informant is even necessary to decide this motion." Defense counsel agreed.



THE HEARING

The Mapp hearing to suppress a loaded gun recovered from the defendant was then held at which the People called only the arresting officer, Police Officer Matthew Francis. Officer Francis testified that on December 9, 2003 at approximately 10:30 p.m., he was in an unmarked car with his partner in the vicinity of Westbury Court and Flatbush Avenue. He went there in response to information received over the telephone about fifteen minutes before from a confidential informant stating there was a Black man on a corner there with a firearm who was described as approximately 5' 6" to 5' 7" with a [*2]shaved head and a navy blue jacket.

The Officer had no notes concerning this communication. This informant over a two-month period had previously given him information approximately three times that resulted in narcotics-related arrests. The informant had been paid for giving this information, but the Officer had no records of this.

Officer Francis parked near the corner. He saw the defendant who fit the description and observed him for approximately 5 to 7 minutes. A male approached the defendant. The defendant removed "a black shiny metallic object from his right jacket pocket with his back toward the street to show the male that approached him." The male then walked away and the defendant placed the object back in the same pocket.

Officer Francis radioed for back-up officers. When they arrived, Officer Francis and his partner exited their car and approached the defendant. The officer asked the defendant what was in the pocket. Receiving no answer, Officer Francis placed his hand on the pocket. He believed he felt the barrel and handle of a gun. He then removed a .22 caliber pistol from the pocket and arrested the defendant. On cross-examination, defense counsel, among other things, brought out the lighting conditions at the time attempting to show Officer Francis could not see what he claimed. Prosecution objections to defense questions concerning the identity of the informant were sustained.

At the conclusion of the Officer's testimony, the Court granted the People the option of producing the informant for a Darden hearing, noting that there was no evidence other than the Officer's testimony to corroborate the existence of the informant and no evidence that the informant had first-hand knowledge of what he allegedly told Officer Francis.

The People rested and stated they would not produce the informant. The defense rested without calling any witnesses. The defense did not request that an adverse inference be drawn from the People's decision not to produce the informant or, for that matter, the partner of Officer Francis who was in a position to make the same critical observations of the defendant claimed to have been made by Officer Francis.

The Court adjourned the matter to June 2, 2005 for written submissions by counsel and argument on the motion.

Following this adjournment, the Court sent a letter to counsel asking them to discuss the impact of the People's decision not to produce the informant. The Court offered the People the opportunity to re-open their case to produce the informant in camera or to produce evidence that the informant is unavailable to testify.

The People responded by communicating with the Court by telephone through my Law Clerk stating that they wished to produce the informant for a Darden hearing. This request was made known to defense counsel.

On the June 2, 2005 adjourned date, defense counsel opposed allowing the People to re-open their case, and the Court accordingly requested the above-noted written submissions from counsel.

[*3]DISCUSSION

This is not a case where the Court has found that the People have failed to meet their burden at a suppression hearing and consequently the People are now asking for "a second chance to succeed where once they had tried and failed." People v. Havelka, 45 NY2d 636, 643 (1978), quoting from People v. Bryant, 37 NY2d 208, 211 (1975). If this practice were generally allowed, a defendant who prevailed initially at a suppression hearing could be "haunted by the specter" of a "second and perhaps a third hearing." People v. Havelka, at 643.

In this case, the Court has not yet ruled on either the legality of the search or the impact of not producing the informant for a Darden hearing. If, instead, the People's request to re-open the hearing were made following an adverse ruling, it would be an abuse of discretion amounting to an error of law to allow the People to re-open the hearing to call the informant. With the benefit of knowing what the Court has found to be deficient in their original evidence, the People would have an unfair opportunity to tailor the Darden hearing testimony "to fit the Court's established requirements." People v. Havelka at 643; People v. Ferguson, 115 AD2d 615 (2d Dept. 1985).

The Court's letter to counsel asking for discussion of the impact of the People's failure to produce the informant cannot be equated with a Court decision providing guidance to the People as to what testimony should be offered at a re-opened hearing. Inviting legal discussion of this issue did not amount to a suggestion to the People by the Court that it would ultimately draw an adverse inference and grant the motion to suppress unless the People changed their position and produced the informant. Because defense counsel did not prior to the People resting request an adverse inference be drawn from the People's decision not to produce the informant, and because there was no evidence that the informant was, in fact, available to testify, an adverse inference may very well not have been warranted. People v. Gonzalez, 68 NY2d 424, 427 (1986).

The People maintain in their papers that they believed this would be a "bifurcated hearing" and that the People somehow reserved the right to call the informant if the Court suppressed the gun based on the Officer's testimony. Neither the record nor the law supports this argument.

As to the record, the Court ruled that because there were no motion papers, it could not rule in a vacuum on the defendant's request for a Darden hearing until after the police testified at the suppression hearing: "[A]nd I will see if the informant is even necessary to decide this motion."

Following the Officer's testimony, the Court gave the People the option to produce the informant: "If the People don't want to call the confidential informant, then I will decide the case based on what I have... Do you want to produce him or do you want to go with what you have?" The People unequivocally declined to produce the informant. The People never indicated they believed their decision not to call the informant would be final only if the Court ruled in their favor. [*4]

Despite their present assertions, clearly the People were given an opportunity to produce the informant and were never told by the Court that this would be a "bifurcated hearing" with a second opportunity to call the informant if the Court made a "preliminary" ruling suppressing the gun based on the Officer's testimony.

The law, for the reasons stated in People v. Havelka, would not allow for a "bifurcated hearing," giving the People a second opportunity to establish the lawfulness of the search in the event the Court initially ruled the search was unlawful.

The People may be confusing the law applicable to Mapp hearings with the law applicable to bifurcated Wade hearings which allows for a hearing on the question of unnecessary Police suggestiveness at an identification procedure and, if the identification has been found to be unnecessarily suggestive, a second hearing on the question of whether the witness's in-court identification has an independent source. Because there are two separate legal issues to be decided, (1) "unnecessary suggestiveness" and (2) "independent source," a bifurcated Wade hearing is permitted. See, People v. Chipp, 75 NY2d 327, 333-334 (1990); People v. Laffman, 161 AD2d 111 (1st Dept. 1990); People v. Malcolm, 139 Misc 2d 140 (Supreme Court Kings County 1988). The ruling on each branch of the bifurcated Wade hearing is based on separate sets of facts. However, because the only issue to be decided at this Mapp hearing is whether there was probable cause to arrest the defendant, the People are not permitted to have more than one full and fair attempt to establish their case. Therefore, contrary to the People's argument, this is not a situation where the People were not given a full and fair opportunity to present all their evidence concerning the confidential informant. Compare, People v. Havelka at 642 citing with approval People v. Malinsky, 15 NY2d 86 (1965) and People v. Verrecchio, 23 NY2d 489 (1969).

Although the People were given a full and fair opportunity to produce the informant and were specifically told by the Court that if the informant were not produced it would decide the case without hearing from the informant, the defendant has not demonstrated why the Court should not now grant the People's application. As noted, the Court has not ruled adversely to the People so that at the Darden hearing the People would have an opportunity to tailor their evidence to fit what the Court has told them is necessary to establish probable cause. See, People v. Brown, 122 Misc 2d 99, 103 (NYC Criminal Court 1983).

Furthermore, the request for the Court to interview the informant in camera originally came from the defendant, unlike the situation in People v. Mingo, 117 AD2d 353 (4th Dept. 1986) where the suppression court erred in holding an in camera Darden hearing at the request of the prosecution over the objection of the defendant who did not raise any issue as to the existence of the informant.

Where an informant's testimony is "necessary" to establish probable cause, a defendant's request for a Darden hearing must be granted. People v. Edwards, 95 NY2d 486, 493 (2000). An informant's testimony is "necessary" where "there is insufficient [*5]evidence to establish probable cause apart from the testimony of the arresting officer as to communications received from an informant..." People v. Edwards at 493 quoting People v. Darden, 34 NY2d 177 at 181 (1974). A defendant is not required to make a threshold showing that the confidential informant does not exist or is unreliable. People v. Edwards at 496.

Although this Court has not yet decided whether the testimony of Officer Francis standing alone is sufficient to establish probable cause, the defendant surely takes the position that probable cause has not been established by Officer Francis. Compare, People v. Moore, 13AD3d 395 (2d Dept. 2004), leave to appeal granted, __NY3d__ (May 2, 2005) (anonymous detailed tip describing man with a gun authorized police to exercise their common-law right of inquiry only and did not provide reasonable suspicion to stop and frisk the defendant, but defendant's actions in reaching towards his waistband after police ordered defendant at gunpoint not to move gave the police the requisite reasonable suspicion justifying a frisk of the defendant). According to People v. Edwards, if probable cause in this case has not been established based on the testimony of the arresting officer, then this Court erred at the conclusion of the hearing in giving the People the option to produce the informant rather than directing them to do so.

Accordingly, the People will be permitted to produce the informant for an in camera examination. Prior to such examination the defendant may submit to the Court suggested questions it wishes the Court to ask the informant during its examination. The Court will provide defense counsel with a summary report of the in camera proceedings that will be consistent with its obligation to protect the confidentiality of the informant. People v. Edwards, 95 NY2d at 492.

SO ORDERED

JOEL M. GOLDBERG

JUDGE