Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
The jury found defendant guilty of bookmaking between April 13, 1964 and May 27, 1964 in New Brunswick, in violation of N.J.S. 2A:112-3. He was sentenced on June 7, 1965 to State Prison for a term of not less than one nor more than two years. Defendant appeals from the judgment of conviction.
The principal ground of appeal is the trial court's refusal to enforce defendant's demand that the State's main witness, State Trooper Decker, testify to the identity of an alleged informer who accompanied him on three occasions to the tavern at which, according to Decker's testimony, he saw defendant engage in the conduct upon which the indictment was based. The trial court's ruling was based upon N.J.S. 2A:84A-28 (L. 1960, c. 52, § 28) which provides that a witness has a privilege to refuse to disclose the identity of a person who has furnished the law enforcement authorities information purporting to disclose a violation of law unless the judge finds that the identity of the informant has already been disclosed or that such disclosure "is essential to assure a fair determination of the issues." This statute is declaratory of the common-law rule. State v. Burnett, 42 N.J. 377, 380 (1964). See Morss v. Forbes, 24 N.J. 341, 360-362 (1957).
While stating that "the problem before us is not without great difficulty," the trial court ruled that "this testimony [identity of the informer] is not essential to assure the fair determination of the issue."
State Trooper Decker testified on direct examination that he visited DelBono's tavern on April 14, April 30 and May 4, all in 1964, sat at the bar, and on each occasion saw defendant accept money and a slip of paper from a person or persons who came into the place. On the second and third occasions the person specified a horse, the number of a race, a race track, and an amount of money, presumably to be bet on the race. Decker thereafter obtained a search warrant and raided the bar on May 26, 1964 in the company of two detectives. Decker said that while the search warrant was being read to
defendant he saw the defendant drop a slip of paper to the floor. Upon examination this was found to contain letters and symbols identified by the officer as bookmaking notations. One of the detectives testified that a search of defendant's person revealed another slip with betting notations and some $2,100 in cash.
Defendant testified in his own defense and denied that any of the actions attributed to him as having taken place on April 14, April 30 and May 4 ever occurred. He denied dropping any slip to the floor on May 26 and identified the slip so designated by Decker as one taken from his wallet by one of the detectives and representing a notation of a "daily double" bet he had just agreed with one DeBonis, a bartender, to place for the latter as a favor at the Garden State track later that afternoon. DeBonis testified in corroboration thereof. Defendant explained his possession of the money as representing funds his aged father had recently turned over to him through a nurse's aide who was attending the father in connection with a heart attack just prior to the latter's entering a hospital. The nurse's aide testified in support of defendant's account of the matter.
On cross-examination of Decker it was developed that he was accompanied to the tavern by an informer on April 14, April 30 and May 4; that the informer sat on a stool alongside him on each occasion; that afterwards they went to the trooper's car where the latter reduced his observations to notes from which he refreshed his recollection at trial; that the trooper and the informer discussed their respective observations after each such incident; and that the informer had not seen everything the trooper claimed to have seen. By other testimony in the case it was shown that the informer had acted as an undercover investigator for the State Police for some time on a casual or intermittent basis, being paid irregularly for his services. He had done preliminary investigative work on the DelBono tavern before the visit of April 14.
During cross-examination defendant's counsel asked Decker for the name of the informer, and upon his refusal, moved the
trial court to compel disclosure. The motion was renewed twice as more information on the subject was elicited. The argument and colloquy on the motion and its renewals were extensive. While not clearly articulated as such, the purport of defendant's motion, and so recognized by the prosecutor and the trial court, was that the State should reveal the name of the informer or suffer dismissal of the prosecution. The contention was that defendant's right to a fair trial demanded the revelation of one known to the State who was an eyewitness of the actions of the defendant constituting a substantial element of the charges made against him by the State. It was argued that defendant had the right to interview that person and adduce his testimony as a witness to attack the substance or reliability of the testimony of the State's witness Decker.
We conclude that the circumstances here presented required the trial court to honor the defendant's motion, as "essential to assure a fair determination of the issue[s]" of defendant's guilt of the charge on which he was being tried, within the exception to immunity from disclosure set forth in N.J.S. 2A:84A-28.
It must be emphasized here not only that the informer was present at three of the four instances (the three most incriminating) where the State's evidence indicated bookmaking activity by defendant at the tavern, but also that the informer was an eyewitness to defendant's activities on the said occasions -- activities which were the heart of the State's case against him. As the trial court stated during the argument on the motion, "his prior testimony [State Trooper Decker] * * * indicates very clearly that he [the informer] was an eye witness and that is what gives rise to this difficult ...