People v. Baez

Titone, J. P.,

concurs insofar as he votes to dismiss the appeal from the order but otherwise dissents and votes to affirm the judgment of conviction, with the following memorandum: In my view, the trial court correctly found that the confidentiality of the informant should be maintained (see People v Pena, 37 NY2d 642, 644). The People’s proof on the issue of identity was exceptionally strong. The undercover officer’s trial identification was based upon an 11- to 12-minute observation of the defendant during which time the two were in close proximity to each other. 11 Indeed, for most of the time the two stood face-to-face. Moreover, since the transaction took place in broad daylight in the middle of the afternoon, the observations were made under excellent lighting conditions. In addition, defendant was hardly a stranger; he was the target of the investigation. 11 When defendant was arrested two months later, the undercover officer confirmed that he was the same person who had sold him heroin. Since the officer was trained to make an accurate identification, this showup procedure, “far from being improper, [was] actually ‘consistent with good police work’ ” (People v Morales, 37 NY2d 262, 272, quoting from United States ex rel. Cummings v Zelker, 455 F2d 714, 716, cert den 406 US 927; see, also, People v Martinez, 79 AD2d 661, affd 54 NY2d 723). 11 In stark contrast to the People’s evidence, defendant’s purported alibi was weak and incredible on its face. Defendant claimed that he was playing baseball around Union Street on the date of the sale. Since the sale took place in February, this claim, to say the least, taxes credulity almost to the breaking point. Further, defendant produced none of the other “players” to support the alibi. 11 Production of an informant is not warranted simply because the defendant presents some farfetched story (People v Pena, supra; People v Martinez, supra; People v Lloyd, 55 AD2d 171, affd 43 NY2d 686). In Lloyd, the sale similarly occurred in the presence of informants and the defendant took the stand and asserted an alibi. Because that alibi, “viewed objectively, was most unconvincing” and because the identification was strong, denial of disclosure was upheld (People v Lloyd, supra, p 174). Lloyd should control here. People v Goggins (34 NY2d 163, cert den 419 US 1012), relied upon by the majority, is plainly distinguishable. Goggins’ alibi was supported by credible witnesses, the transaction took place at night, and the undercover officer had a poor opportunity to observe the individual with whom he was dealing. In short, the alibi defense herein was *749insufficient to cast a “significant doubt on the police testimony” and, therefore, “there was no error in the exercise of discretion by the trial court in protecting the identity of the informant, and thus his continued usefulness, and perhaps his safety” (People v Colon, 39 NY2d 872, 873). 11 Finally, I would note that the majority of the trial errors were not objected to and neither individually nor collectively denied the defendant a fair trial (see People v Hopkins, 58 NY2d 1079, 1083; People v Cook, 42 NY2d 204; People v Lowen, 100 AD2d 518). Review in the interest of justice is most unwarranted, 11 The judgment should be affirmed.