STATE OF NEW JERSEY v. ANTONIO BREA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1066-04T41066-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTONIO BREA,

Defendant-Appellant.

___________________________________

 

Submitted December 7, 2005 - Decided March 1, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 03-04-0731.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and

on the brief).

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Karyn M. Pizzelanti,

Assistant Prosecutor, on the brief).

PER CURIAM

A Hudson County grand jury indicted defendant on seven counts relating to possession of a controlled dangerous substance, including possession with intent to distribute a controlled dangerous substance within 500 feet of a public housing facility zone, a second-degree offense, in violation of N.J.S.A. 2C:35-7.1; and possession with intent to distribute a controlled dangerous substance within a school zone, a third-degree offense subject to a five-year term of imprisonment, with three years of parole ineligibility, in violation of N.J.S.A. 2C:35-7.

Defendant was tried before a jury, and was convicted of possession of cocaine, N.J.S.A. 2C:35-10a(1), but acquitted of all of the remaining, more serious charges. The court sentenced defendant to a one-year term of probation, and imposed the mandatory fines and penalties. Defendant now appeals raising the following arguments:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT.

A. Factual Introduction.

B. The Circumstances Of The Present Case Were Such As To Warrant The Disclosure Of The Confidential Informant's Identity.

POINT TWO

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM THE PRIMARY STATE'S WITNESS CONNECTING THE DEFENDANT WITH THE SALE OF DRUGS. (PARTIALLY RAISED BELOW)

POINT THREE

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TESTIMONY ELICITED BY THE PROSECUTOR DURING REDIRECT EXAMINATION OF THE PRIMARY STATE'S WITNESS CONNECTING THE DEFENDANT WITH CRIMINAL CONDUCT DESPITE THE FACT THE TRIAL COURT HAD RULED IMMEDIATELY PRIOR THERETO SUCH TESTIMONY WAS INADMISSIBLE. (PARTIALLY RAISED BELOW)

POINT FOUR

THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY AND PROMPTLY RESPOND TO A QUESTION BY THE JURY DURING DELIBERATIONS. (NOT RAISED BELOW)

POINT FIVE

THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT I WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT SIX

THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT I WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.

We reject these arguments and affirm. Although none of the arguments raised by defendant have sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), we will, in the interest of clarity, briefly address defendant's argument raised in Point I. Before doing so, we will summarize the salient facts as disclosed from the evidence presented at trial.

On January 25, 2003, Detective Juan Laffont of the West New York Police Department was working undercover, and dressed to give the appearance that he was homeless. He was assigned to the southern end of Bergenline Avenue, a main commercial street running the length of the Town of West New York. Laffont was working with a confidential informant ("C.I."). The plan was to have the C.I. introduce Laffont to defendant, in an attempt to purchase drugs from him. Prior to executing the plan, Laffont met with the informant and gave the C.I. money to purchase drugs from defendant, for which the police paid the C.I. $20.

From his vantage point, Laffont observed the informant approach defendant and purchase what appeared to be drugs from him. Defendant was not arrested at that point, because Laffont wanted to attempt to purchase drugs from defendant as well.

When Laffont made the attempt, defendant asked him where he (Laffont) knew him from. Laffont responded that he knew defendant from a friend, known as "Canno." This seemed to ease defendant's initial apprehension, because defendant then told Laffont that he remembered him and that Laffont should follow him.

After walking approximately fifteen feet, defendant asked Laffont to give him the money. The officer gave defendant a twenty dollar bill, whose serial number had previously been recorded at police headquarters. Defendant then removed a piece of crack cocaine from his mouth and gave it to Laffont. The transaction completed, the officer and defendant departed in different directions.

Detective John Vializ was in an unmarked vehicle with Detective Acosta as part of the surveillance team. Laffont informed Vializ that he had completed the drug transaction and that they should move in and make the arrest. At this point, Vializ arrested defendant. The search, incident to the arrest, recovered a twenty dollar bill with the same serial number as had been previously recorded at headquarters, as well as a second twenty dollar bill. According to Laffont, the illicit drug transaction took place within 1,000 feet of a public school and 500 feet of a public housing facility zone.

Prior to trial, defendant moved to have the prosecutor disclose the identity of the C.I. After hearing oral argument, the trial court denied the motion without prejudice, leaving open the possibility for defendant to present additional evidence. Approximately one month later, the court reconvened on this matter. At this hearing, Detective Vializ testified concerning the events leading up to and including the drug transaction between defendant and the undercover officer. The matter was carried until November 7, 2003. At this point, the evidentiary hearing was closed, and, after considering the arguments of counsel, the court denied defendant's application to disclose the identity of the C.I.

The issue resurfaced on March 12, 2004, during a N.J.R.E. 104 hearing on defendant's application to compel the State to release the cellular telephone records of the West New York Police Department. Detective Laffont testified at this hearing. In deciding defendant's latest attempt to discover the identity of the C.I., the trial judge considered conflicting accounts of the two police officers (Laffont and Vializ) and the police reports that had been previously entered into evidence.

The discrepancies between the officers' testimony and the reports pertained to five topics: 1) the precise location of the surveillance team and whether the officer had knowledge of the team's location; 2) the ownership and location of the phone used by the C.I. to contact Laffont to inform him that the C.I. had spoken with defendant; 3) the precise time of preparation and drug sale; 4) the method of transportation utilized for the informant and the officer to arrive in the general area before proceeding on foot to make the purchase; and 5) the extent to which the C.I. introduced the undercover agent to defendant. Defendant, however, did not contest that the officer made the second purchase and that the informer was not present during the purchase. On March 19, 2004, after considering all the evidence, the judge reaffirmed his earlier ruling, denying defendant's motion to disclose the identity of the C.I.

N.J.R.E. 516 provides:

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.

The purpose of the privilege is to encourage private individuals to report misconduct, thus permitting continuous flow of information to law enforcement officials. Grodjesk v. Faghani, 104 N.J. 89, 96-97 (1986); State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003). The privilege to withhold the identity of an informant is important to advance the public interest in successful law enforcement and is "particularly important in the enforcement of the narcotic laws." State v. Milligan, 71 N.J. 373, 381 n.3 (1976). There is a presumption against disclosure that is only overcome by a "'substantial showing of a need' for the disclosure." Cashen v. Spann, 77 N.J. 138, 142 (1978) (quoting State v. Oliver, 50 N.J. 39, 47 (1967).

The privilege is not absolute, State v. Milligan, supra, 71 N.J. at 383, and will not apply where: 1) disclosure is essential to a fair trial; 2) the C.I. is an essential witness on a basic issue in the case; 3) the C.I. is an active participant in the crime for which defendant is prosecuted; 4) where a defense of entrapment seems reasonably plausible; or 5) disclosure is required due to principles of fairness. State v. Milligan, supra, 71 N.J. at 383-84; State v. Williams, supra, 356 N.J. Super. at 604.

In Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957), the Supreme Court rejected the notion of a fixed rule to determine when a C.I.'s identity must be disclosed. In so doing, the Court indicated that a trial court must balance "the public interest in protecting the flow of information [to law enforcement officials] against the [defendant's] right to prepare his defense." Id. 353 U.S. at 62, 77 S. Ct. at 629, 1 L. Ed. 2d at 646; State v. Milligan, supra, 71 N.J. at 384. The trial court should be guided by "the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro v. United States, supra, 353 U.S. at 62, 77 S. Ct. at 629, 1 L. Ed. 2d at 646. In reviewing the denial of disclosure, we must determine whether "the trial court abused its discretion after weighing the competing considerations of the balancing test" in deciding a motion to disclose a C.I.'s identity. State v. Milligan, supra, 71 N.J. at 384.

 
Here, the conviction rested entirely on the transaction between the undercover police officer and defendant himself. The C.I.'s involvement was, at best, a preliminary peripheral step, far removed from the direct evidence establishing defendant's culpability. In this light, we discern no legal basis to conclude that the trial court misapplied its discretion in denying defendant's pretrial motion for disclosure of the C.I.'s identity.

Affirmed.

(continued)

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A-1066-04T4

March 1, 2006