Monday, October 6, 2008

In People v Santana (2008 NY Slip Op 07377 [4th Dept 10/308]), the Court held that there was no error in permitting the attorney for a jailhouse informant to testify that pursuant to to the his cooperation agreement, the informant was required "to provide truthful cooperation" at defendant's trial in order to receive a downward departure of his federal sentence. The Court explained that since the informant had not yet testified, his attorney could not and, indeed, did not offer any opinion whether the informant had provided such truthful cooperation. Thus,
the attorney did not implicitly testify concerning the informant's credibility in violation of the Confrontation Clause or the advocate-witness rule (cf. United States v Roberts, 618 F2d 530), nor did her testimony usurp the jury's function to assess the informant's credibility (see People v Hayes, 226 AD2d 1055, 1056 lv denied 88 NY2d 936).

Further, the Court held that since defendant raised the issue of the informant's motive for testifying and his credibility, "the People were properly permitted to elicit the bolstering aspect of the cooperation agreement, i.e., the promise by the [informant] to testify truthfully" (Hayes, 226 AD2d at 1055; see People v Poppo, 292 AD2d 859, 860, lv denied 98 NY2d 679).