The issue on which this appeal turns is whether the People should have been required to disclose the names of the two confidential informants. In modifying, the majority of this court relies principally upon People v Brown (34 NY2d 163), which was decided jointly with People v Goggins.
In Brown the refusal to disclose the name of the informant was held to be proper; in Goggins the refusal was held to be improper. I believe that the facts here come within the Gog-gins rationale and I therefore dissent and vote to reverse the judgment and order a new trial.
The only resemblance between this case and Brown is that, in each, the alleged sale took place in the home of the defendant. However, in Brown, the defendant "presented no significant defense” (p 173). Here, however, the defendant took the stand and unequivocally denied that she was present at the time of the alleged sales and fully explained her whereabouts at that time. Her testimony was corroborated by a disinterested witness and, circumstantially, by the records of a taxi company which showed that two persons had left defendant’s home at the time she and her alibi witness said they had left by taxi.
Here the police officers who allegedly made the purchases » were not present at the time of the defendant’s arrest and, concededly, had not seen the defendant for about three years after the sales. In Brown, as the Court of Appeals noted (p 171), "[o]n the night of the arrest, the officer waited in a car while his backup team escorted defendant from his apartment. The undercover officer viewed defendant through binoculars, and determined he was the person who had sold the officer the drugs.” The court, in distinguishing the Brown and Goggins cases, said (pp. 167-170):
"Both of these cases raise a common issue concerning a *176defendant’s right to disclosure of the identity of a police informant. In each case the informant introduced an undercover police officer to a drug seller and shortly thereafter departed from the immediate area. The undercover officer then made a purchase, left the scene, and the defendant was later arrested by other officers relying on information supplied by the undercover agent. At the trial the defendant challenged the reliability of the undercover officer’s identification and urged the court that a proper resolution of that issue required that the prosecutor be directed to reveal the identity of the informant who initially brought the parties together.
"In Brown where the sale and arrest occurred a the defendant’s apartment and the proof of identification was virtually unassailed, the court denied disclosure. In the Goggins case, involving a sale and subsequent arrest in or around a public bar, a close identity question emerged at the trial and the Appellate Division directed that disclosure be made. We affirm in both cases * * *
"Bare assertions or conclusory allegations by a defendant that a witness is needed to establish his innocence will not suffice. Instead he must show a basis in fact to establish that his demand does not have an improper motive and is not merely an angling in desperation for possible weaknesses in the prosecution’s investigation (see Roviaro v United States, supra, pp. 53-65).
"On this point the nature of the informant’s role is of some significance. Undoubtedly the strongest case for disclosure is made out when it appears that the informant was an eyewitness or a participant in the alleged crime. (Roviaro v United States, supra.) * * *
"But although the extent of the informer’s role cannot be overlooked, it should not be overemphasized. Thus when, for example, the identity of the culprit rests upon evidence which is equally balanced, the informer’s testimony should not be minimized merely because he played a minor role. In other words the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innoncence [sic] of the accused.
"The defendant of course may lay his foundation for disclosure by a showing in pretrial motion or upon the development of testimony in the main trial. (With respect to a pretrial motion see Roviaro v United States, supra, at p. 65, n. 15, and People v Taylor, 70 Mise 2d 970, 972.) It is impossible to *177predict every setting which would call for disclosure of the informer’s identity. It is anticipated however that in the usual case either the course and quality of the prosecutor’s proof may suggest the need for disclosure or the defendant, rather than showing weaknesses in the prosecutor’s case, might become entitled to disclosure by the development of his own defense.”
The court concluded (p 172): "In sum the record in the Goggins case, but not in Brown, presents both a plausible issue as to guilt and less than trouble-free identification testimony, and either would have been enough. Hence, disclosure should have been directed in Goggins, and even, if appropriate, production of the informant-witness” (emphasis supplied).
At the trial, in denying the defendant’s motion for disclosure (which had been denied without prejudice at the Wade hearing), the court said: "Mr. Brandt [defense counsel], I would call to your attention that according to the testimony which we heard in the Wade hearing from the police officers, there were, apparently, according to their testimony, six witnesses to this alleged sale: The defendant, some friend of the defendant’s whose name and last address has been testified to, two confidential informants, and two police officers. Now, at this point undoubtedly the two police officers, undercover officers will be testifying. That accounts for two of the witnesses. So far as this Court is aware, you and/or the defendant have control over two of the other witnesses, namely, the defendant and her friend. With those thoughts, as well as the other questions raised by the testimony and so forth, at this time in balancing the equities, if you will, that is, the public interests, necessity for confidential informants, that entire argument, vis-á-vis, the rights and possible prejudices to the defendant by non-disclosure, I would again, at this time, based on this record, deny your motion and request.”
The reason given by the trial court should receive short shrift. In the first place the record fails to show that the alleged "friend” was under the control of the defendant. Furthermore the record affirmatively discloses efforts by the defendant to ascertain her whereabouts. Those efforts revealed that she was released from prison and that her lawyer did not know where she was. Certainly, under such circumstances, it should not be held that the defendant should be denied the crucial testimony of two eyewitnesses—the informants who *178were present at the time of the alleged transaction—because she failed to call a convicted criminal as her witness, even assuming her availability.
When, as here, a defendant testifies and produces other plausible evidence to establish an alibi, it is an unconstitutional denial of such defendant’s right to a fair trial to refuse disclosure to her of eyewitnesses to the occurrence, even though they are confidential informants. In this connection too, it should be recalled that about three years elapsed since the alleged purchases by the police officers so that the continued utility to them of the informers may well be doubted. However that may be, the defendant could not constitutionally be deprived of an opportunity to ascertain the names and whereabouts of those witnesses and of the right to call them in an attempt to establish the verity of her defense for, as the court said in Roviaro v United States (353 US 53, 60-61): "Where the disclosure of an informer’s identity * * * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of nondisclosure] must give way.” There was here "a plausible issue as to guilt” (People v Goggins, 34 NY2d 163, 172, supra) and it was therefore basic prejudicial error to deny disclosure. I would reverse the judgment and order a new trial.
Damiani, Rabin and Titone, JJ., concur with Margett, Acting P. J.; Shapiro, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.
Judgment of the County Court, Nassau County, rendered March 5, 1975, modified, on the law, by reversing the convictions of criminal possession of a dangerous drug in the fourth degree (two counts), and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed.