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

The PEOPLE of the State of New York, Respondent, v. Ernest E. WILSON, Also Known as E, Appellant.

Decided: May 26, 2005

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. John J. Goodman Jr., Greenwich, for appellant. William J. Gibbons, District Attorney, Cooperstown (John F. Lambert of counsel), for respondent.

Appeal from a judgment of the County Court of Otsego County (Coccoma, J.), rendered February 23, 2004, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

 Indicted on criminal sale of a controlled substance in the third degree and found guilty as charged following a jury trial, defendant appeals.   At trial, it was established that defendant sold crack cocaine to an undercover police investigator inside a vehicle.   According to this investigator, she was with defendant for approximately 5 to 10 minutes during which time they had “face-to-face conversations.”   She unequivocally testified that defendant was indeed the person from whom she purchased the drugs.   A police detective surveilling the transaction also unequivocally testified that he observed defendant exit the subject vehicle.   This detective had seen defendant on at least 50 occasions prior to this time.

 Given these positive and unequivocal identifications of defendant by two trained police officers who had an ample opportunity to observe him, we discern no abuse of discretion by County Court in failing to disclose the identity of a confidential informant who facilitated the drug purchase that day and was present in the car during the transaction (see People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41 [1974], cert. denied 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 [1974];  People v. Perez, 301 A.D.2d 434, 435, 755 N.Y.S.2d 23 [2003], lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296 [2003];  People v. Ford, 204 A.D.2d 859, 612 N.Y.S.2d 456 [1994], lv. denied 84 N.Y.2d 825, 617 N.Y.S.2d 146, 641 N.E.2d 167 [1994];  People v. Yattaw, 106 A.D.2d 679, 680, 484 N.Y.S.2d 140 [1984] ).   In other words, defendant did not assert a sufficient factual basis at trial to justify disclosure of the identity of the confidential informant since the issue of defendant's identification, although challenged, was not closely contested (see People v. Yattaw, supra;  cf. People v. Stanfield, 7 A.D.3d 918, 920-921, 777 N.Y.S.2d 546 [2004] ).1

Finally, we are unpersuaded that the principles espoused in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] were implicated in this case.

ORDERED that the judgment is affirmed.


1.   Even though County Court denied defendant's request for disclosure of the confidential informant's identity, it nevertheless granted the defense a missing witness charge regarding this person.   Although, in our view, the defense was not entitled to this charge (see People v. White, 265 A.D.2d 843, 695 N.Y.S.2d 795 [1999], lv. denied 94 N.Y.2d 868, 704 N.Y.S.2d 544, 725 N.E.2d 1106 [1999];  People v. Williams, 242 A.D.2d 917, 662 N.Y.S.2d 896 [1997], lv. denied 91 N.Y.2d 899, 669 N.Y.S.2d 13, 691 N.E.2d 1039 [1998];  People v. Morris, 159 A.D.2d 934, 552 N.Y.S.2d 803 [1990], lv. denied 76 N.Y.2d 793, 559 N.Y.S.2d 998, 559 N.E.2d 692 [1990] ), granting same alleviates any possible prejudice from the court's failure to disclose the informant's identity.   Stated differently, any error in failing to disclose the identity of the confidential informant was harmless given this instruction to the jury.



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