(concurring in part and dissenting in part). I agree with my brethren that the judgment of conviction must be reversed and a new trial ordered. I differ from them concerning the procedure to be followed on the new trial.
The identity of an informant must be disclosed to the defendant in a criminal action when it is “ relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause ” (Roviaro v. United States, 353 U. S. 53, 60-61). That admittedly general test is rounded out more significantly in the language of the court in Wilson v. United States (59 F. 2d 390, 392): “If what is asked is useful evidence to vindicate the innocence of the accused or lessen the risk of false testimony or is essential to the proper disposition of the case, disclosure will be compelled.”
Nonetheless, the rule itself is but an exception to a larger doctrine — the common-law privilege extended to a police informer against disclosure (see 8 Wigmore, Evidence [McNaughton rev.], § 2394). That privilege is intended to encourage assistance to the State in rooting out and prosecuting crime ; moreover, in modern context, the privilege protects the undisturbed use of undercover agents and ongoing investigations and *231prevents retaliation against informers and their families by coercive means employed by the accused or his associates.
Thus, whether the exception allowing disclosure may be given effect becomes essentially a balancing process to strike the proper breaking point between the interest of the State and the interest of the individual — the traditional role of due process under the Constitution. It is the trial court which must decide whether the exception shall be recognized for the proper safeguard of the individual'at the trial. In order that the balancing test can be fairly determined between the competing interests, the proceedings by which the test is carried out should be held in camera, without the presence of the prosecutor or the defendant and his counsel (cf. People v. Delgado, 40 A D 2d 554) .1
In camera procedure is sanctioned by the Federal courts (United States v. Jackson, 384 F. 2d 825, cert. den. 392 U. S. 933; United States v. Winters, 420 F. 2d 523; cf. United States v. Day, 384 F. 2d 464, 470 [concurring opn.]; United States v. Bell, 464 F. 2d 667; United States v. Slocum, 464 F. 2d 1180). “ Realistically, the trial court can perform its function only if it has access to more of the facts than it may ultimately be willing to reveal to the parties -or to the public. To deny the judge the identity of the informer and whatever evidence he may be able to offer may prevent an effective evaluation of possible effect on the defendant’s interests” (United States v. Lopez, 328 F. Supp. 1077, 1091).2
Moreover, the procedure has received approval in the Federal revised proposed Rules of Evidence. Rule 510 (subd. [c], par. [2]) provides that “ the judge shall give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the judge may direct that testimony be taken if he finds that the matter cannot be resolved satisfactorily upon affidavit. * * * Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.”
*232Hence, in this case I would direct that an in camera hearing be held in connection with the new trial, in order to determine whether disclosure should be required. The Trial Justice after obtaining the facts, is in a far better position to make that decision than we are on this record. I therefore concur in the reversal and the direction of a new trial, but dissent from, the direction for disclosure without an in camera hearing, conducted under the conditions stated herein.
Munder, Gulotta and Christ, JJ., concur with Shapiro, J.; Hopkins, Acting P. J., concurs in the reversal and the direction of a new trial, but dissents from the direction for disclosure without an in camera hearing, with an opinion.
Judgment of the Supreme Court, Kings County, rendered June 11, 1971, reversed, on the law, and new trial ordered.
. The absence of the defendant does not violate the confrontation clause of the Constitution of the United States (McCray v. Illinois, 386 U. S. 300, 313 — 314).
. In Camera procedure has also been adopted in civil cases (Westinghouse Elec. Corp. v. City of Burlington, 351 F. 2d 762).