Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Sullivan, S.j.a.d. Kolovsky, J.A.D. (concurring).
This is an appeal from a conviction of unlawful possession of a narcotic drug. Defendant was sentenced to New Jersey State Prison.
Defendant denied the charge of possession and, at trial, his counsel, in opening to the jury, stated that he intended to prove that defendant "was an innocent victim of the planning of someone else who for reasons of his own found it useful to put Mr. Sejuelas in a compromising position." Certain evidence which defendant offered in support of this defense was rejected by the trial court and forms the basis of this appeal.
The police officers who arrested defendant testified that they were patroling in a police car and observed a parked car with the right rear door open. There were two men at the car door, one of whom was leaning into the car. Thinking that they might be of some assistance, the officers stopped their vehicle and approached the car, whereupon defendant, who was the man leaning in the car, "scurried" through the car and got out through the other rear door. One of the officers who went around the car to intercept defendant testified that he saw defendant reach into his pocket, withdraw some packets of glassine envelopes, and throw them on
the ground. The packets were picked up by the officer, later tested, and found to contain heroin. It is this evidence which formed the basis of the possession charge against defendant. Defendant and his companion, who was named Camacho, were taken to police headquarters where defendant was booked on the charge of possession. No charges were preferred against Camacho, who was known to one of the police officers, and he was released.
Defendant categorically denied that he had dropped the glassine packets on the ground. He testified that he had been acquainted with Camacho for a period of about three months. On the day he was arrested he happened to meet Camacho in a restaurant with two other men whose identity was unknown to defendant. Camacho told defendant that he had something to tell him, so defendant got in Camacho's car with the two men. The car was driven by Camacho to the place in question, where it was parked and the two other men left. Immediately thereafter the police arrived while defendant was sitting in the rear seat. As defendant got out of the car a police officer grabbed him and searched him and "then bent down and he say 'we got you pretty good now.'"
Defendant next called as a witness a Mrs. Maldonado, who testified that she was visiting a friend in the vicinity and witnessed the incident which resulted in defendant's arrest. She knew defendant and Camacho by name but was not a friend of either of them. She testified that when the police car arrived she saw Camacho get out of the car first. Defendant then followed. While the two men were standing there she saw Camacho drop a bag to the sidewalk from his hand. This was the package which the police officer picked up.
Mrs. Maldonado also testified that prior to the day in question she had seen Camacho with his wife and two men on the street and heard them speaking about defendant. She was then asked to relate the conversation which she overheard. On objection by the prosecution the trial judge refused to allow her to testify to what she had heard on the ground that it was hearsay. When counsel for defendant
said that he would like to make an offer of proof, the judge stated that he did not want counsel to tell what he intended to prove, but had no objection to counsel's relating the basis on which he thought his proof was admissible. Counsel then stated that the substance of the conversation had a factual relationship to the events that occurred several days later and would explain or serve to corroborate defendant's factual contentions. However, the trial judge ruled that the testimony was hearsay and that the best evidence of the conversation would be Camacho or his wife or the two other men. Counsel urged that his pretrial investigation had convinced him that Camacho would be a hostile witness and he could not afford to be bound by any testimony Camacho might give. Nevertheless, the court adhered to its ruling.
In his brief on appeal defendant represents that the substance of the conversation which Mrs. Maldonado overheard was that Camacho said he was going to "frame" defendant on a narcotics charge.
Defendant argues that the reasonable inference to be drawn from the evidence in the case is that Camacho was an informer or a stool pigeon. For this reason it is urged that defendant should not have been restricted to putting Camacho on ...