Gaulkin, Foley and Collester. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Defendant was convicted upon three indictments which charged him with possession and sale of narcotics on three separate dates. He appeals.
Mr. Albert was assigned to represent defendant in this appeal. He has done so with great skill and energy. Nevertheless, after he filed an excellent brief the ungrateful defendant wrote us attacking him and the brief, and requesting permission to file a supplemental brief. We granted him that permission and he has filed one which has added nothing to the meritorious points argued by Mr. Albert. In spite of the fact that the remainder of defendant's brief is without merit, Mr. Albert made a valiant effort at the oral argument to project even those points. This was no easy task. For example, one of defendant's own points is that his rights were somehow violated when the police did not arrest him after the first sale and permitted him to make two more sales! His argument is as follows:
"The defendant contends that this violated his rights as guaranteed by the United States Constitution; particularly the equal protection clause in that the State does not allow the Burglar, Murderer, Rapist, Thief, and Forger, etc., to remain at large so that they can commit more crimes and thus be able to subject the offender to multiple prosecution and punishment."
We mention this at the outset because, as we said in State v. Andrews, 79 N.J. Super. 17, 22 (App. Div. 1963), we must do what we can to protect assigned counsel. See also State v. Scanlon, 84 N.J. Super. 427, 440 (App. Div. 1964).
The first point in counsel's brief is that the possession charged in each of the indictments was "incident to and inseparable from the sale itself" charged in that indictment, and therefore "there is but one criminal act, the sale. If, artificially, the law separates this single act into two parts, and punishes each separately and severely * * * as here, appellant has twice been placed in jeopardy for a single wrong," citing State v. Labato, 7 N.J. 137 (1951); State v. Loray, 41 N.J. 131 (1963); State v. Currie, 41 N.J. 531 (1964).
Counsel argues that "To 'possess' means to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature," and that here defendant's contact with the heroin was no more than that and merged in and was part of the sales.
If defendant's control had been "fleeting and shadowy in its nature" there might be merit in this argument. However, we are not called upon to express an opinion on this point in this case because the evidence shows that defendant's contact with and control over the narcotics was not a mere fleeting and shadowy incident of the sale. In each of the three episodes, he had the narcotics on his person when he offered them for sale. In short, the possession antedated and was separate and distinct from the sale, and was a separate crime. State v. Reed, 34 N.J. 554 (1961); Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2 d 1405 (1958). Cf. State v. Leibowitz, 22 N.J. 102 (1956); State v. Tumbiolo, 28 N.J. Super. 231 (App. Div. 1953); Wood v. United States, 317 F.2d 736, 739 (10 Cir. 1963).
Counsel's second point is that "It was error for the court below to have denied disclosure of the informer." To begin with, there was no demand that the identity of the informer be disclosed. However, counsel argues that the questions asked of the witness Chiaventone by defendant's trial counsel made it obvious that that is what defendant sought, and the judge should have ordered the disclosure on his own motion.
We disagree. We hold that there was no obligation upon the trial judge to order the disclosure of the informant on his own motion, under the circumstances here involved, and that even had there been an express demand for the disclosure, there was no sufficient showing that justice required it. State v. Burnett, 79 N.J. Super. 242 (App. Div. 1963), affirmed 42 N.J. 377 (1964); State v. Dolce, 41 N.J. 422 (1964); cf. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2 d 639 (1957).
Trooper Chiaventone testified that on June 18 he drove to a certain area in Paterson with the informer ...