PEOPLE v. MILLS (2006)

Judgment, Supreme Court, New York County (John Cataldo, J. at Hinton hearing and Civil Rights Law § 50-a application;  William A. Wetzel, J. at jury trial and sentence), rendered July 12, 2004, convicting defendant of two counts of criminal sale of a controlled substance in the third degree, and sentencing him to concurrent terms of 4 1/212 to 9 years, unanimously affirmed.

 The court properly permitted the undercover officer to testify using only his shield number, and without revealing his name to the defense.   The officer was involved in ongoing investigations in the vicinity of the instant sales, and had frequently been threatened and assaulted during undercover operations.   The concerns for the officer's safety are appropriate reasons for a court to maintain his anonymity.   That decision did not violate defendant's right of confrontation (see People v. Waver, 3 N.Y.3d 748, 750, 788 N.Y.S.2d 630, 821 N.E.2d 934 [2004];  People v. Granger, 26 A.D.3d 268, 810 N.Y.S.2d 451 [2006];  see also United States v. Rangel, 534 F.2d 147, 148 [9th Cir.1976], cert. denied 429 U.S. 854, 97 S.Ct. 147, 50 L.Ed.2d 129 [1976] ).   The court also properly determined there was no basis to grant defendant's request for the court to subpoena the undercover officer's personnel file for an in camera inspection (see Civil Rights Law § 50-a [2];  People v. Valentine, 160 A.D.2d 325, 326, 554 N.Y.S.2d 8 [1990], lv. denied 76 N.Y.2d 797, 559 N.Y.S.2d 1002, 559 N.E.2d 696 [1990] ).   We need not determine whether, under these circumstances, defendant's burden under Civil Rights Law § 50-a(2) should be reduced since the argument was not raised below.

 The court properly precluded impeachment of the undercover officer concerning the omission of a certain detail from his testimony before the grand jury and from his buy report.   The omitted fact was not a proper prior inconsistent statement, because neither the grand jury questioning nor the buy report called for this information, and because, in each instance, the omission of the additional detail from the officer's brief narrative was not unnatural (see People v. Bornholdt, 33 N.Y.2d 75, 88, 350 N.Y.S.2d 369, 305 N.E.2d 461 [1973], cert. denied sub. nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109 [1974];  People v. Green, 299 A.D.2d 267, 750 N.Y.S.2d 594 [2002], lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740 [2003];  compare People v. Montalvo, 285 A.D.2d 384, 728 N.Y.S.2d 448 [2001], lv. denied 96 N.Y.2d 941, 733 N.Y.S.2d 381, 759 N.E.2d 380 [2001] ).

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.