The Fourth Department determined defendant’s request for a Darden hearing should not have been denied. The People did not demonstrate the informant who provided information to support a search warrant application was legitimately unavailable for the hearing:
Where, as here, there is insufficient evidence to establish probable cause supporting a search warrant without the statements of a confidential informant, the People must make the informant available for questioning in camera … . If, however, the informant cannot be produced despite the diligent efforts of the People, “the People may instead establish the existence of [the] confidential informant[] through extrinsic evidence’ after demonstrating that the informant is legitimately unavailable’ ” … . Here, the court summarily denied defendant’s request upon the People’s bare assertion that the informant was in California and thus unavailable. Although the People subsequently produced an unsworn letter, purportedly from the informant’s drug treatment facility in California, stating that the informant required uninterrupted care, that letter, without more, is insufficient to demonstrate that the informant was legitimately unavailable. We conclude that the People failed to establish that an exception to the Darden rule is applicable, and thus the court erred in denying defendant’s request for a Darden hearing … . We therefore hold the case, reserve decision, and remit the matter to County Court to conduct an appropriate hearing, at which the People will not be precluded from offering evidence that the informant is currently unavailable. People v Givans, 2017 NY Slip Op 09066, Fourth Dept 12-22-17
CRIMINAL LAW (DARDEN HEARING, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))/DARDEN HEARING (CRIMINAL LAW, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))/SEARCH AND SEIZURE (DARDEN HEARING, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))