PEOPLE v. WADE (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).   We reject defendant's contention that reversal is required based on County Court's refusal to disclose the identity of a confidential informant. “[T]he strongest case for disclosure is made out when it appears that the informant was an eyewitness or a participant in the alleged crime․ When[,] however[,] he [or she] has played a marginal part by, for instance, merely furnishing a tip or some information to the police, the privilege should prevail absent an extremely strong showing of relevance” (People v. Goggins, 34 N.Y.2d 163, 169-170, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. denied 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286).   Defendant failed to make that showing.   Defendant was arrested in an apartment following a police officer's purchase of drugs at that location, and the confidential informant provided information concerning the presence of drugs in that apartment a week earlier.   Thus, the information provided by the confidential informant had no bearing on the issue whether defendant possessed drugs on the date of his arrest (see People v. Rice, 30 A.D.3d 172, 815 N.Y.S.2d 563, lv. denied 7 N.Y.3d 817, 822 N.Y.S.2d 492, 855 N.E.2d 808;  see generally People v. Johnson, 21 A.D.3d 1395, 804 N.Y.S.2d 162, lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484).

 Contrary to the further contention of defendant, the court properly refused to admit in evidence the certificate of conviction of another person arrested at the crime scene inasmuch as the proffered evidence had only slight probative value and strong potential for undue prejudice and confusion (see People v. Primo, 96 N.Y.2d 351, 356-357, 728 N.Y.S.2d 735, 753 N.E.2d 164).   Defendant failed to meet his burden of establishing that he was entitled to a missing witness charge with respect to a police officer.   The record establishes that the officer's testimony would have been cumulative, and thus a missing witness charge was not warranted (see People v. Comfort, 31 A.D.3d 1110, 1112, 817 N.Y.S.2d 811, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71).

 Finally, defendant contends that the court erred in permitting a police officer to provide expert testimony concerning the operation of drug houses in Rochester because the People failed to establish a foundation for the admission of that testimony (see People v. Radesi, 11 A.D.3d 1007, 1008, 782 N.Y.S.2d 341, lv. denied 3 N.Y.3d 760, 788 N.Y.S.2d 676, 821 N.E.2d 981).   Defendant failed to preserve that contention for our review (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: