PEOPLE v. PENA MARTINEZ (1997)

Following a reversal of his judgment of conviction by this Court (People v. Pena-Martinez, 206 A.D.2d 858, 614 N.Y.S.2d 850, lv. denied 84 N.Y.2d 938, 621 N.Y.S.2d 535, 645 N.E.2d 1235), defendant was retried and convicted of criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1] ) and criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1] ).   During the retrial, the undercover officer was asked on cross-examination to disclose the name of the confidential informant who was present during meetings subsequent to the sale.   Supreme Court, rejecting defendant's contention that the question was relevant under People v. Goggins, 34 N.Y.2d 163, 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, sustained the prosecutor's objection.   Although the informant's identity was not disclosed, a missing witness charge based upon the People's failure to call the informant as a witness was given.

We reject defendant's contention that the court erred in sustaining the prosecutor's objection.   While the central purpose of “the Goggins mandate * * * is to make an informant possessing material and relevant information available to the defense for examination at trial” (People v. Jenkins, 41 N.Y.2d 307, 309, 392 N.Y.S.2d 587, 360 N.E.2d 1288), Goggins does not establish that defendant has the right to disclosure of an informant's identity to the jury without first seeking a ruling from the court.   By failing to move for disclosure of the informant's identity or to set forth a basis for disclosure, defendant failed to preserve for our review his contention that the court should have directed the prosecutor to disclose the informant's identity (see, People v. Medina, 53 N.Y.2d 951, 441 N.Y.S.2d 442, 424 N.E.2d 276).  “Since the [prosecutor] was obviously unwilling to permit the witness to disclose the informant's identity, it was incumbent upon defendant to seek a judicial ruling on the question if he believed that disclosure would be helpful to his case” (People v. Medina, supra, at 952, 441 N.Y.S.2d 442, 424 N.E.2d 276).   We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously affirmed.

MEMORANDUM: