On appeal from Superior Court of New Jersey, Law Division, Morris County.
Kolovsky, Lynch and Allcorn. The opinion of the court was delivered by Allcorn, J.A.D.
Defendant appeals his conviction for the offense of unlawful distribution of heroin, entered upon a jury verdict.
The making of the sale of heroin to an undercover State Police officer on February 19, 1973 is not denied by defendant. Rather, he contends that the sale was the result of entrapment by the police and their informant; that not only did the police informant induce the unwilling defendant to make the sale, but that the heroin defendant sold to the police had been supplied to defendant by the informant a few days earlier for the express purpose of entrapping defendant into making the sale (albeit unknown to the police); and that since such evidence was uncontroverted and inasmuch as the State presented no "proper proof" of defendant's predisposition to sell narcotics, defendant had established entrapment as a matter of law and, consequently, the trial court erred in denying defendant's motion for acquittal made at the close of the entire case.
It is undisputed that on February 14, 1973 Anthony Federici was arrested by the Wayne police on a narcotics charge. Federici having previously aided the Wayne police, Sergeant Weinmann sought to recruit Federici again as an informant in assisting the police to search out and to obtain evidence against persons known by Federici to be dealers in or distributors of narcotics. In return, Sergeant Weinmann undertook to inform the judge of Federici's cooperation when he appeared for sentencing on the charge for which he had been arrested. Federici agreed and mentioned the names of several persons to Sergeant Weinmann, including that of defendant.
Thereafter, on February 19, 1973, Federici, Weinmann and State Police Detective Dalio met with Trooper Jack Cole,
an undercover officer of the State Police, following which Cole and Federici proceeded to defendant's home in Smoke Rise, Kinnelon, in an unmarked police car. There they met defendant at or near a corral on the premises and, together, went into a barn or shed in or adjacent to the corral, where the sale of the heroin from the defendant to Trooper Cole took place, in the presence of Federici.
Federici, who did not testify for the State, was called as a witness by defendant. He testified on direct examination that following his arrest and his accommodation with Sergeant Weinmann on February 14, he sold "narcotics to John Talbot" sometime "between February 14 and February 19," "with the intention of arranging for a sale back to the police." On cross-examination Federici was unable to fix the date of his sale to defendant any closer than "February 17 or 18"; he could not recall where the sale took place; he could not recall the quantity sold, and he could not state with any certainty the amount paid to him by the defendant -- in contrast to his complete recollection of the place, quantity, price and the details of the conversations on the occasion of the sale from defendant to the undercover trooper on February 19, only a day or two after Federici's purported sale to defendant.
It was Federici's further testimony that defendant's name as a distributor was first suggested by him, not by the police; that the plan to sell heroin to defendant and to induce him in turn to sell some of it to the police was "completely [his] own idea," and "[n]o police officer ever suggested" such procedure to him. Significantly, Federici at no time testified that he informed any of the police officers concerned with this case of his plan prior to the sale to defendant or, subsequent thereto, of the fact or purpose of the sale by him to defendant. All of the police officers denied any knowledge and flatly rejected any such means as improper law enforcement procedure.
Defendant, who was 21 at the time of the trial in April 1974, testified on direct examination that he had been a user
of heroin and marijuana for sometime prior to November 1972, when he stopped (Federici testified he had last sold heroin to defendant in December 1972 or January 1973, immediately prior to the February 1973 sale); that he previously had pleaded guilty to and been convicted of: breaking and entering in New Jersey in 1971; possession of eight ounces of marijuana and a quantity of barbiturates in New York, the offense having been committed in September 1972; possession of cocaine, barbiturates and seconal, possession of a hypodermic syringe ...