For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[41 NJ Page 425] Defendant was convicted of receiving stolen goods in violation of N.J.S. 2A:139-1. More particularly, the indictment charged that on June 30, 1960 he did receive,
buy and have 51 State of New Jersey Motor Vehicle Ownership Certificates knowing that they had been stolen. The Appellate Division reversed on the ground that the trial court erred in refusing to order the State to produce a police collaborator at the trial or to disclose his name and whereabouts. This was sought in connection with defendant's alleged defense of entrapment. State v. Dolce, 78 N.J. Super. 247 (App. Div. 1963). We granted the State's application for certification. 40 N.J. 217 (1963).
The record discloses that during the night of June 4-5, 1958 the Buess Motor Vehicle Agency in Union City, New Jersey was entered and 2,100 blank official motor vehicle ownership certificates were stolen. Fifty-one of the certificates, identified by number, were in possession of Dolce at the time of his arrest on June 30, 1960.
Testimony was adduced at the trial that Motor Vehicle Department inspectors considered Dolce a "prime suspect." The part which he was suspected of taking in the criminal transaction or the basis for the suspicion was not revealed at the trial. The record shows, however, that the inspectors decided to lay a trap for him. On June 28, 1960 Henry Gancarz, an inspector who had been working on the case, introduced one Rosenberg, presumably a police collaborator, to another collaborator identified in the testimony only as "Stu." Rosenberg knew Dolce and the introduction was arranged so that he could have Stu and Dolce meet. Rosenberg accomplished his mission with dispatch, because by about 4 P.M. on June 30, Stu's activity resulted in Dolce's arrest with the 51 stolen certificates in his possession.
The police strategy was to have Stu find out through conversation with Dolce if he had any of the stolen certificates, and lead him to believe that Stu had access to a stolen Motor Vehicle Department machine used ordinarily to stamp blank ownership certificates, thus validating them. Apparently, Dolce accepted the artifice because on the afternoon of June 30, Inspector Gancarz and Stu met in East Paterson and as the result of their conversation Gancarz and other officers
placed a garage on Franklin Avenue in Garfield, New Jersey under surveillance. By prearrangement, another inspector, Joseph Guarino, in khaki trousers and sport shirt, had been stationed in the garage with the validating machine in his possession. Sometime after 3 P.M. Dolce and Stu drove past the garage a short distance, stopped, got out of the car and walked toward the garage. Guarino went to the door and met them. Stu introduced him to Dolce and advised that Dolce had brought only 50 forms instead of 1,200. After some conversation about that situation, Guarino and Dolce got back in the car where Dolce produced 51 ownership certificates from underneath his shirt. Guarino examined them and inquired where they came from. Dolce said they came from a motor vehicle agency but declined to name the one because that "was unethical." He and Guarino then made a deal under which Guarino would receive 28 certificates for himself in return for the validation of 23 certificates for Dolce and payment to him of $50. The men went into the garage where Guarino produced the validating machine from a hiding place and began to stamp the certificates. (Stu did not accompany them into the garage; he disappeared.) While the operation was in process, with Dolce holding the certificates, three other inspectors and a police sergeant suddenly appeared and arrested Dolce and Guarino.
At police headquarters before Guarino identified himself, he asked Dolce if he had "tipped off" the police. Dolce denied that he had done so, saying that it must have been Stu and that if "he found out for sure he would kill him." He told Guarino also not to give the police any information, to "be quiet," that he had a "good mouthpiece" who would get them off. Later, after Guarino had disclosed his true occupation and was endeavoring to persuade Dolce to cooperate with the police, Dolce refused to name his accomplices because if he did so he would "get killed."
The above factual outline represents the basic case of the State. The defendant neither testified nor offered any testimony by way of defense. We were informed at oral argument
by defense counsel that Dolce had a previous criminal record and decided not to take the witness stand. The trial court's sentence note appearing in the judgment confirms counsel's statement, although the nature of the previous crime or crimes does not appear.
Defendant's opening to the jury was guarded and ambiguous with respect to the factual nature of his defense. It was alleged, however, that Dolce did not know the ownership certificates on which the indictment was based had been stolen. Then, alternatively and perhaps inconsistently, his counsel said the defense of entrapment would be interposed.
The record discloses that prior to trial defendant sought to obtain by a demand for particulars the identity and address of the person who brought him to the garage on the date of arrest, June 30, 1960. The prosecutor refused to name and locate the person, relying on the common law policy reflected in N.J.S. 2A:84A-28, which 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."
Defendant sought an order compelling the disclosure. But at argument of the motion no proof whatever, in affidavit form or otherwise, was offered to support the defense of entrapment or to indicate in any legally probative way that such defense was legitimately in the case. Nor did defendant offer to testify in support thereof before the court on any terms which might protect his statements from being used against him at the trial of the indictment. Cf. State v. DeCola, 33 N.J. 335, 352 (1960). His counsel made hearsay and conclusory statements with respect to what the defendant allegedly told him about entrapment but such informal courtroom
argument cannot be used as a substitute for proof nor to provide a basis for a finding by the judge that disclosure is essential to a fair determination of the issues. The motion was denied, and since its purpose was limited then and on the present appeal to the defense of entrapment, we conclude the trial court's discretion was not abused. There is no more justification for giving such statements of counsel, either on the motion or in the opening to the jury at the trial, any substantive probative value on the defense of entrapment than there is for recognizing a plea of ...