PEOPLE v. JOHNSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Roderick JOHNSON, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND LAWTON, JJ. Shirley A. Gorman, Albion, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [1] ).   We reject defendant's contention that reversal is required based on County Court's refusal to give a circumstantial evidence charge.   Where, as here, the proof at trial consists of both “circumstantial and direct evidence, the court need not so charge the jury” (People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  see also People v. Holmes, 204 A.D.2d 243, 244-245, 612 N.Y.S.2d 153, lv. denied 84 N.Y.2d 868, 618 N.Y.S.2d 14, 642 N.E.2d 333).   Contrary to the further contention of defendant, he was afforded effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant's contention that the court erred in failing to require the People to reveal the identity of a confidential informant who disposed of what appeared to have been the murder weapon also is lacking in merit.  “[T]he truly crucial factor in [determining whether an informer's identity should be disclosed] is the relevance of the informer's testimony to the guilt or innocence of the accused” (People v. Goggins, 34 N.Y.2d 163, 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).   Here, the confidential informant “played a marginal part” in the crime by disposing of a weapon, and that participation does not impact upon “ the guilt or innocence of the accused” (id.).   Thus, the court did not err in refusing to disclose the identity of the confidential informant.

 Contrary to the further contention of defendant, his arrest was based on probable cause.   Indeed, the record establishes that, when the police discovered defendant hiding behind a piece of furniture, defendant admitted that he was the subject of an outstanding warrant (see People v. Gary, 19 A.D.3d 1118, 796 N.Y.S.2d 820).   Finally, the direct and circumstantial evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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

MEMORANDUM: