STATE OF NEW JERSEY v. TYRONE A. FURLOW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE A. FURLOW,

Defendant-Appellant.

________________________________

July 30, 2014

 

Submitted July 21, 2014 Decided

 

Before Judges Harris and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County,

Indictment No. 11-10-2371.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Tyrone A. Furlow appeals from the November 30, 2012 judgment of conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and third-degree possession of a CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1). We affirm.

I.

In June 2011, police officers in Berlin Township received information from a confidential informant that Furlow was selling crack cocaine in West Berlin. Lieutenant Leonard Check of the Berlin Township Police Department teamed with Detective Michael Chuppe of the Voorhees Township Police Department to investigate the tip.

On June 13, 2011, while Chuppe was present and listening, a telephone call was placed by the confidential informant to Furlow, "asking if [Chuppe] could accompany the informant to [Furlow's] house to purchase $50 worth of hard, which is crack cocaine." The confidential informant and Chuppe then drove to the house, "pulled into the driveway, [Furlow] came out of the rear of the residence, entered [the] vehicle, [Furlow] told us to drive around the block, . . . [Furlow] told us [to] stop the vehicle." After Chuppe and Furlow "discussed the drugs," Furlow offered Chuppe "four for sixty, meaning four bags of crack cocaine for $60." Chuppe testified,

We proceeded to do the transaction, he handed me the bag, so he said he was going to give me the whole bag with four bags of crack cocaine in there. He handed me the bag, I handed him the $60, he proceeded to exit the vehicle and then we proceeded to drive away.

On August 5, 2011, Furlow was arrested, and his two-count indictment followed on October 17, 2011.

On March 9, 2012, after a hearing, Judge Michele M. Fox denied Furlow's motion to disclose the confidential informant's identity.

Months later, after a three-day trial in which the jury found Furlow guilty of both counts in the indictment, Judge Gwendolyn Blue sentenced Furlow. After merger, Judge Blue imposed a mandatory extended term, N.J.S.A. 2C:43-6(f), of nine years imprisonment with a four-year period of parole ineligibility. The sentence was expressly made to run consecutively to "the [September 25, 2012] sentence [Furlow is] currently serving for the violation of probation." This appeal followed.

On appeal, Furlow raises the following arguments for our consideration:

POINT I: FURLOW WAS DEPRIVED OF A FAIR TRIAL BY THE FAILURE TO REVEAL THE CI'S IDENTITY BECAUSE THE CI ALLEGEDLY PARTICIPATED IN THE DRUG TRANSACTION WITH FURLOW BY SOLICITING THE DEAL, DRIVING THE CAR IN WHICH IT OCCURRED, AND FOLLOWING FURLOW'S DIRECTIONS. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 10.

 

POINT II: FURLOW SHOULD BE RESENTENCED BECAUSE HE WAS ENTITLED TO GAP-TIME CREDIT AND BECAUSE THE SENTENCE WAS EXCESSIVE.

 

A. FURLOW WAS ENTITLED TO GAP TIME CREDIT FOR THE TIME BETWEEN HIS SENTENCING ON A VIOLATION OF PROBATION AND THIS SENTENCING IN THE PRESENT CASE.

 

B. FURLOW'S SENTENCE, WHICH WAS NINE YEARS WITH A FOUR-YEAR PAROLE DISQUALIFIER FOR A SALE OF SIXTY DOLLARS WORTH OF CRACK, WAS PATENTLY EXCESSIVE.

 

After analyzing the entire record, we are not persuaded.

II.

We review an order with respect to a confidential informant's identity under an abuse of discretion standard, that is, "whether the trial court abused its discretion after weighing the competing considerations of the balancing test." State v. Milligan, 71 N.J. 373, 384 (1976). By the same token, there is a presumption protecting the informer's identity, Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957), which is even stronger in narcotics cases given that "informants are an important, indeed indispensable, part of the arsenal that law-enforcement forces bring to bear against drug crimes." State v. Florez, 134 N.J. 570, 582 (1994).

There is a privilege for confidential informants, N.J.S.A. 2A:84A-28; N.J.R.E. 516, which belongs to the State. State v. Sessoms, 413 N.J. Super. 338, 343 (App. Div. 2010). The purpose of the privilege is twofold: "to protect the safety of the informant and to encourage the process of informing." Ibid. The privilege is intended "to protect the public interest in a continuous flow of information to law enforcement officials." Grodjesk v. Faghani, 104 N.J. 89, 97 (1986). Indeed, the public has a strong interest in sustaining the flow of information about crime to law enforcement, and informants are a key source of that intelligence. See Roviaro, supra, 353 U.S. at 59, 77 S. Ct. at 627, 1 L. Ed. 2d at 644.

The privilege is not absolute. Florez, supra, 134 N.J. at 578. Under N.J.R.E. 516, the State may decline to disclose a police informant's identity "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." This appeal turns on whether disclosure is essential to a fair determination of the issues.

Where the defense claims disclosure is essential to a fair determination of the issues, the trial court balances "'the public interest in protecting the flow of information against the individual's right to prepare his defense[,] . . . taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'" Milligan, supra, 71 N.J. at 384 (quoting Roviaro, supra, 353 U.S. at 62, 77 S. Ct. at 628-29, 1 L. Ed. 2d at 646). Thus, the court must balance the State's interest in encouraging the reporting of confidential information with a criminal defendant's right to fairness. State v. Burnett, 42 N.J. 377, 385-86 (1964).

As noted, there is a presumption against disclosure. Id. at 385. "[F]rivolous demands for information [or] unsubstantiated allegations of need" will not be enough to justify disclosure because "[s]omething more than speculation should be required of a defendant before the court overrules an informer's privilege of nondisclosure." Milligan, supra, 71 N.J. at 393. First, a defendant must demonstrate the materiality of the informer's identity or testimony. Id. at 383-84. Additionally, in order to overcome this presumption, a defendant must make a "substantial showing of need" in favor of the disclosure. State v. Oliver, 50 N.J. 39, 47 (1967). There are certain circumstances in which disclosure may be required, as for example, when the informant was directly involved or played an integral role in the crime for which the defendant has been indicted. Milligan, supra, 71 N.J. at 386-87; Maudsley v. State, 323 N.J. Super. 579, 594 (App. Div. 1999).

"On the other hand, absent a strong showing of need, courts generally deny disclosure where the informer plays only a marginal role, such as providing information or 'tips' to the police or participating in the preliminary stage of a criminal investigation." Milligan, supra, 71 N.J. at 387; see State v. Infante, 116 N.J. Super. 252, 259 (App. Div. 1971) (holding that disclosure was not warranted when the informant had made a bet on the phone with defendant as police listened because that "was not [] the criminal activity for which the defendant was convicted").

Furlow contends that the confidential informant's identity must be disclosed because he

actively participated in the alleged drug transaction with Furlow. The [confidential informant] telephoned Furlow, solicited and arranged the deal, drove the car in which the transaction occurred, and followed Furlow's directions during the transaction.

 

These activities do not demonstrate a strong need for the confidential informant's identity. The confidential informant's role was merely to provide an introduction to Chuppe, and a mobile locale for the CDS transaction to occur. This was tangential to the specific charges on which Furlow was indicted and convicted. We conclude that Furlow failed to make a strong showing of how disclosure would be helpful to his defense of the charges in the indictment.

Furlow claims that his nine-year sentence was "patently excessive" and disproportionate to the $60 crack transaction. We disagree.

In sentencing Furlow, Judge Blue found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), "clearly, convincingly, and substantially outweigh" the absence of mitigating factors. Furlow contends that Judge Blue erred because "[w]hen the focus is placed where it belongs, on Furlow's offense, the excessiveness of the sentence becomes apparent. The offense was one street-level sale of sixty dollars worth or crack."

On appeal, a sentence should be affirmed if the sentencing court identified and balanced the aggravating and mitigating factors, and their existence is grounded in sufficient credible evidence in the record. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence should only be modified if the application of the facts to the law "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). The reviewing court is not permitted to substitute its own judgment for that of the sentencing court but rather must determine whether, on the basis of the evidence, "no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).

Our independent review of the record convinces us that Judge Blue's well-explained sentence is in harmony with our sentencing jurisprudence. There was no abuse of discretion and the sentence imposed, while severe, does not shock our judicial conscience.

We lastly address Furlow's claim that he is entitled to gap time credit, N.J.S.A. 2C:44-5(b), for the time between when he was sentenced for the violation of probation (September 25, 2012) and the present sentencing (November 30, 2012). The State concedes that Furlow is entitled to this gap time credit pursuant to State v. Hernandez, 208 N.J. 24, 38 (2011). Accordingly, we remand this matter solely for the calculation and award of such gap time credit.

The conviction and sentence are affirmed, and the matter is remanded for entry of an amended judgment of conviction to reflect the gap-time credit. We do not retain jurisdiction.