People v. Fulton

Gulotta, J. P. (dissenting).

The evidence must be suppressed and the indictment dismissed, because of the People’s inability to produce the alleged informant for the repeatedly scheduled in camera hearing (see People v Darden, 34 NY2d 177; cf. People v Singleton, 42 NY2d 466). While I sympa*677thize with the People’s difficulty in producing the alleged informant after so many years, and commend the efforts made to find this person, suppression is nonetheless required. An in camera inquiry of an informant, in a case such as this, is necessary so as to insure the existence and identity of the informant, and to confirm that the informant passed along the information as testified to by the police officer. Without the informant’s confirming testimony, the People have failed to adduce sufficient evidence to justify the seizure and frisk of the defendant. I note, in addition, that this is not a case in which the People have demonstrated that the informant would have been unavailable to testify at the time of the suppression hearing, and I am therefore assuming that but for the erroneous ruling of the motion court the testimony of the said informant could have been taken in camera at that time in accordance with the dictates of People v Darden (supra).