STATE OF NEW JERSEY v. ISRAEL COLON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3731-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISRAEL COLON, a/k/a ERIC

FIGEROEA, BRIAN CARNEY,

Defendant-Appellant.

_______________________________________

August 29, 2012

Submitted August 13, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment

No. 09-06-934.

Joseph E. Krakora, Public Defender, attorney

for appellant (Daniel Brown, Designated

Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Israel Colon pleaded guilty to a second-degree charge of possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(2). He appeals from denials of his motions to suppress the cocaine and other evidence seized from his home and to reveal the identity of a confidential informant. He also appeals his sentence of twelve years imprisonment. We affirm.

A Middlesex County grand jury indicted defendant and two women jointly on twelve counts charging various second- and third-degree drug offenses. The indictment arose from police investigation of illegal drug sales in New Brunswick by one of the women, Raneesha Griffin. The police obtained information from confidential informants, conducted surveillance of defendant and Griffin, and arranged for controlled purchases of cocaine from Griffin by informants. They identified defendant as Griffin's boyfriend and also her supplier of illegal drugs. They obtained search warrants, including for defendant's home in Plainsboro. Upon execution of the warrant on March 16, 2009, defendant led the police to his bedroom closet, where they recovered 112 grams of cocaine and $2,502 in cash. The police also found digital scales, packaging materials, other drug paraphernalia, and a bullet-proof vest in defendant's home.

After indictment, defendant moved for disclosure of the identity of a confidential informant who had made controlled purchases of cocaine and suppression of the evidence seized from his home. The motions were denied by two different judges. Defendant then entered into a plea agreement with the State and pleaded guilty to a second-degree count of the indictment. The plea agreement subjected defendant to sentencing in the first-degree range because of his record of prior drug convictions. Defendant expressly reserved the right to appeal from the pretrial rulings on disclosure of the confidential informant and suppression of evidence. See R. 3:5-7(d), 3:9-3(f); State v. Knight, 183 N.J. 449, 470-71 (2005). On September 13, 2010, defendant was sentenced to twelve years in prison with fifty-seven months of parole ineligibility, in accordance with Brimage guidelines established by the State Attorney General for plea agreements for drug offenses where a minimum mandatory sentence may be required.1

On appeal, defendant argues:

POINT I

THE LOWER COURT ERRED IN DENYING MR. COLON'S MOTION TO COMPEL DISCLOSURE OF THE IDENTITY OF CONFIDENTIAL INFORMANT CI#2.

POINT II

THE LOWER COURT ERRED IN DENYING MR. COLON'S MOTION TO SUPPRESS PHYSICAL EVIDENCE.

POINT III

THE SENTENCING COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. COLON (NOT RAISED

BELOW).

Defendant asserts there was insufficient corroboration for the information provided by the confidential informants in support of the State's application for a search warrant for his home, and also that the identity of the confidential informant designated as CI#2 should have been disclosed to provide the defense a fair opportunity to challenge the constitutionality of the search of his home.

The affidavit in support of the search warrant was submitted by a police investigator experienced in narcotics cases who was assigned to the Gang Intelligence/Career Criminal Unit of the Middlesex County Prosecutor's Office. At some point before February 15, 2009, the affiant received information from a detective of the New Brunswick Police Department that Raneesha Griffin was selling illegal drugs in Middlesex County and that defendant Colon was her boyfriend and her drug supplier. The New Brunswick detective had previously obtained a search warrant for Griffin's residence but Griffin moved before the warrant could be executed.2

During the week of February 15, 2009, the Prosecutor's investigator received information from a confidential informant designated CI#1 that Griffin was a "runner" for defendant. CI#1 said that defendant regularly visited and stayed in the daytime at Griffin's current apartment on Phelps Avenue in New Brunswick and allegedly supplied her with illegal drugs to sell. CI#1 also told the investigator that defendant lived with another woman and his children at a specific address in Plainsboro and that he stashed drugs at that location. The informant identified a picture of Griffin.

A second confidential informant, CI#2, provided almost identical information about Griffin and defendant, including the allegation that defendant kept drugs at his Plainsboro home. The second informant also identified a picture of Griffin.

During the week of February 22, 2009, Prosecutor's investigators arranged for CI#2 to make a controlled purchase of cocaine from Griffin. The informant did so during that week under the watch of police surveillance units, which followed Griffin from her Phelps Avenue residence to the pre-arranged location for the drug sale and observed a hand-to-hand transaction between CI#2 and Griffin. The informant then turned over the cocaine that was purchased to the investigators. During the transaction, defendant's car was parked near Griffin's Phelps Avenue apartment.

Police surveillance during the week of March 4, 2009, observed defendant leaving his Plainsboro home with a duffel bag and going to Griffin's Phelps Avenue address. The activity was consistent with the information provided by the two informants.

Another controlled purchase of cocaine was arranged during the week of March 8, 2009. Police surveillance units again observed the transaction between CI#2 and Griffin and received the cocaine as evidence. The police also conducted surveillance that week of defendant's movements from his Plainsboro home to the Phelps Avenue address. Shortly before the second undercover purchase, defendant was observed going to Griffin's Phelps Avenue address from his Plainsboro home.

The investigators continued to observe defendant's car parked near the Phelps Avenue address over the next several days, and they confirmed with both confidential informants during the week of March 15, 2009, that defendant was still supplying illegal drugs to Griffin and he was still traveling from his Plainsboro home to the Phelps Avenue address to do so.

On March 16, 2009, the Prosecutor's investigator applied for search warrants for defendant's residence, car, and person, as well as those of Griffin. Warrants were issued by a Superior Court judge and the searches were conducted later that day. The police recovered cocaine and related evidence from defendant's bedroom and other locations in his house as previously described.

On appeal, defendant argues that the search warrants were invalid "[b]ecause the basis of knowledge of the informants was not established and because the hearsay statements of the informants were not verified or corroborated through the investigation cited by the affiant . . . ." We find no merit in this argument.

A police search conducted pursuant to a warrant is presumed to be lawful, and the defendant challenging the search bears the burden of proving a constitutional violation. State v. Sullivan, 169 N.J. 204, 211 (2001); State v. Valencia, 93 N.J. 126, 133 (1983). We defer to the finding of probable cause by the judge who reviewed the affidavit in support of the warrant and found sufficient probable cause for the search. State v. Chippero, 201 N.J. 14, 32-33 (2009); Sullivan, supra, 169 N.J. at 211.

To establish probable cause for the issuance of a search warrant, the police must demonstrate "a 'well-grounded' suspicion that a crime has been or is being committed." State v. Johnson, 171 N.J. 192, 214 (2002) (quoting Sullivan, supra, 169 N.J. at 211); see State v. Waltz, 61 N.J. 83, 87 (1972); State v. Kasabucki, 52 N.J. 110, 117 (1968).

Where an informant provides evidence to establish probable cause, the court considers the veracity, reliability, and basis of knowledge of the informant. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 543 (1983); State v. Jones, 179 N.J. 377, 389 (2004); Sullivan, supra, 169 N.J. at 213. The court must consider the totality of circumstances shown by the affidavit in support of a search warrant. Gates, supra, 462 U.S. at 230-32, 103 S. Ct. at 2328-29, 76 L. Ed. 2d at 543-44; Jones, supra, 179 N.J. at 389; State v. Novembrino, 105 N.J. 95, 123 (1987).

In State v. Keyes, 184 N.J. 541, 548-50 (2005), the Court considered the adequacy of probable cause for issuance of a warrant to search a residence where information had been obtained from a confidential informant. After reiterating the standards we have described from prior cases, id. at 553-55, the Court stated that the veracity of the informant "may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations[,]" id. at 555 (citing Sullivan, supra, 169 N.J. at 213). In this case, the investigator's affidavit stated that both CI#1 and CI#2 had provided reliable information to the police in the past resulting in arrests of suspects involved in narcotics activity and seizures of evidence.

In Keyes, the Court also said that the informant's basis of knowledge may be inferentially established if "'the nature and details revealed in the tip . . . imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source.'" Id. at 556 (quoting State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)). Here, the personal information provided by the informants and the details regarding the activities of defendant and Griffin imply the informants' personal knowledge.

Moreover, the Court in Keyes stated that independent police corroboration of the accuracy of tips from an informant will establish their reliability even if the affidavit in support of the search warrant does not adequately establish the informant's veracity or basis of knowledge. Ibid. Here, the police corroborated the information from CI#1 and CI#2 in several ways. First, the matching tips of the two informants corroborated each other. Second, the Prosecutor's investigator had similar information from the New Brunswick detective who had earlier investigated Griffin and defendant based on information provided by other informants. Third, the police conducted surveillance and personally verified the movements of defendant in conformity with the drug-supplying activity described by the informants.

Most important, the investigators arranged for two undercover purchases of cocaine from Griffin to confirm that the drug sales were continuing to the time of the search warrants. When Griffin was observed in pre-arranged hand-to-hand drug transactions with CI#2, defendant's car was parked in the vicinity of Griffin's residence. These observations corroborated the informants' claims that defendant was supplying the drugs sold by Griffin.

The multiple means of police corroboration provided ample evidence of the reliability of the two informants' tips. The totality of circumstances shown by the affidavit in support of the search warrant established probable cause for its issuance. In sum, we reject defendant's argument that the trial court erred in denying his motion to suppress the fruits of the search of his home.

Defendant also argues that the identity of CI#2 should have been disclosed so that he and his attorney could mount a challenge to the search warrant.

The informer's privilege is codified by statute, N.J.S.A. 2A:84A-28, and our Rules of Evidence, N.J.R.E. 516.3 The State may decline to disclose the identity of a police informant in order to protect the free flow of information regarding criminal activity as well as the informant's safety. Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957); State v. Milligan, 71 N.J. 373, 380-83 (1976); State v. Oliver, 50 N.J. 39, 42 (1967).

In this case, CI#2 was involved in undercover purchases of cocaine from Griffin. CI#2 never had any face-to-face interaction with defendant in the course of the two undercover purchases. Consequently, the informant's participation had little relevance to the alleged entrapment of defendant with respect to a substantial quantity of cocaine and other evidence of drug distribution activity seized from defendant's home.

Furthermore, the indictment did not charge defendant with distribution of cocaine based on the controlled purchases. Rather, the indictment charged conspiracy and related narcotics offenses based on the evidence seized directly by law enforcement authorities pursuant to search warrants on March 16, 2009. Thus, the potential testimony of the informant was tangential to the specific charges on which defendant was indicted.

Similar to the Supreme Court's holding in Milligan, supra, 71 N.J. at 390, we conclude that defendant did not make a "special showing of how disclosure of the informer's identity would be helpful to his defense[,]" and therefore, he did not demonstrate entitlement to CI#2's identity.

Finally, defendant challenges his twelve-year sentence and fifty-seven month period of parole ineligibility as excessive. At the time of sentencing, however, defendant and his attorney did not object to imposition of the sentence precisely in accordance with his plea agreement and Brimage sentencing guidelines. Defendant had a criminal record that included twenty-five prior arrests, seven indictable convictions, and about an equal number of municipal court convictions. He had four prior convictions for serious narcotics offenses, all resulting in state prison sentences. The drug convictions made him subject to a mandatory extended term sentence within the first-degree range, in accordance with N.J.S.A. 2C:43-6f.

Defendant does not dispute that imposition of an enhanced sentence was warranted. His only argument on appeal is that the sentencing court erroneously found aggravating factor eleven applicable to his sentence, N.J.S.A. 2C:44-1a(11), namely, that "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices . . . ." The State concedes that this aggravating factor should not have been applied to a second-degree conviction with no prospect of a potential non-custodial sentence. See State v. Dalziel, 182 N.J. 494, 503 (2005). As the State argues, however, the sentencing court's consideration of this single extraneous aggravating factor was harmless in the imposition of a Brimage sentence in accordance with the plea agreement.

The court properly found four other aggravating factors and no mitigating factors applicable. Given the highly deferential standard of review of the trial court's finding of aggravating and mitigating factors, State v. Bieniek, 200 N.J. 601, 608-09 (2010), and also of the court's discretionary decision on the length of the sentence imposed within an appropriate sentencing range, State v. Roth, 95 N.J. 334, 364-66 (1984), we find no error or abuse of discretion in defendant's sentence.

Affirmed.

1 State v. Brimage, 153 N.J. 1 (1998); see Office of the Attorney Gen., Revised Attorney Gen. Guidelines for Negotiating Cases under N.J.S.A. 2C:35-12 (Nov. 18, 2004), available at http://

www.state.nj.us/lps/dcj/agguide/directives/brimagerevision.htm.

2 Although the affidavit for the search at issue in this appeal incorporates by reference the New Brunswick detective's earlier affidavit in support of the unexecuted search warrant, neither party has provided a copy of that affidavit. From other information in the record, we gather that the earlier affidavit described undercover purchases of illegal drugs from Griffin by confidential informants other than CI#2. Because we have not been provided the date of the prior affidavit or the circumstances of prior undercover purchases, we cannot assess their relevance to this appeal.

3 The statute and the evidence rule state:

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

[N.J.S.A. 2A:84A-28; N.J.R.E. 516.]