Halpern, Crane and Michels. The opinion of the court was delivered by Halpern, P.J.A.D.
Defendant was convicted by a jury of the unlawful possession of a controlled dangerous substance (marijuana) with intent to distribute, and of conspiracy to possess marijuana with intent to distribute. He was sentenced on the former conviction to the Youth Reception & Correction Center, Yardville for an indeterminate term with a five-year maximum, and given a concurrent indeterminate term with a three-year maximum on the latter conviction. He appeals from the judgments of conviction.
Defendant contends that because the issue of identification was a close one, the trial judge erred in denying his request to compel the prosecutor to disclose the identity of the informer, thus depriving him of a fair trial. The test to be applied in this type of request is set out in Evid. R. 36*fn1 We have carefully considered the record with defendant's argument in mind and find that the mere presence of the informer, under the circumstances here existing, did not require disclosure of the informer's identity. Applying the balancing test enunciated in Rovario v. United States , 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), and
Cashen v. Spann , 66 N.J. 541, 552 (1975), it is obvious the trial judge ruled correctly in holding that the identity of the informer was not essential to a fair determination of the issues involved. The informer was not an active participant in the sale or arrest as was the case in State v. Roundtree , 118 N.J. Super. 22 (App. Div. 1971). Defendant's request was nothing more than pure speculation that the informer might exculpate him on the issue of identification. State v. Booker , 86 N.J. Super. 175 (App. Div. 1965). At best, defendant was hopeful the informer might say something which somehow would be helpful to him -- such is an insufficient basis for a disclosure. State v. Oliver , 50 N.J. 39, 42 (1967).
Defendant was identified at the scene of the sale by two trained undercover policemen whose job required them to make careful note of those involved in such criminal activities so they could identify them at trial. In addition, defendant's denial of being present, and the witnesses called to corroborate his alibi, would merely make the informer's testimony, if called as a witness, cumulative, regardless of how he testified. The informer was present, not for the purpose of being a witness at trial, but to allay suspicion with respect to the police. See Oliver, supra at 41.
Defendant further contends the pretrial identifications made by the two policemen were so inherently unreliable that they violated his right to due process. He premises this argument on a photographic identification made from a high school yearbook and a one-way mirror identification at police headquarters. We disagree.
The use of a one-way mirror for the purposes of pretrial identification, or a one-on-one show up, has been subject to criticism, but absent a showing of something more than just those facts, has been held valid. Stovall v. Denno , 388 U.S. 293, 301-302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967);
State v. Edge , 57 N.J. 580 (1971). Considering the totality of the circumstances surrounding the pretrial identifications, we find no infirmity in the procedures used. Neil v. Biggers , 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Farrow , 61 N.J. 434 (1972), cert. den. 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973); State v. Matlack , 49 N.J. 491 (1967), cert. den. 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967).
Defendant also argues that the effectiveness of his attorney was undermined because he was at police headquarters when the one-way mirror identification was made, but was not advised thereof. The simple answer is that it occurred during routine police investigation and before formal charges were made against defendant. Under such circumstances, no right to counsel exists. Kirby v. Illinois , 406 U.S. 682, ...