For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the court was delivered by Sullivan, J. Schreiber, J. (concurring). Chief Justice Hughes joins in this opinion. Hughes, C.J., and Schreiber, J., concurring in the result.
This appeal poses the issue whether entrapment is established as a matter of law if an informant, while acting in concert with an undercover police officer, but unknown to the officer and contrary to instructions, supplies the defendant with heroin for the purpose of then arranging a sale of the heroin by defendant to the undercover officer, which sale is then consummated. We hold that it is.
Defendant, John Talbot, III, was convicted of selling heroin to an undercover police officer, the jury having rejected
his defense of entrapment. The facts adduced at trial were essentially as follows. On February 14, 1973 one Anthony Federici was arrested by the Wayne police on a narcotics charge. At police headquarters he was told that if he cooperated with the police in effecting arrests of drug dealers the police would do everything within their power to help him to avoid a jail sentence on the pending charge. Federici, who had previously served as an informant, agreed to arrange transactions for the police. Although Talbot was his good friend, Federici named him, among others, as a person from whom purchases could be made. This suggestion met with approval although Federici received no specific instructions from the police as to how to proceed.
Federici, who testified as a defense witness, said that he went to New York, obtained some heroin and then telephoned defendant and offered to sell it to him. Defendant, however, refused to buy. The following day, Federici again telephoned defendant and renewed the offer saying he needed money. This time defendant agreed and Federici went to the Talbot farm in Smoke Rise and sold him a packet of heroin for $30.
The day after the sale, Federici telephoned defendant and asked him to resell the heroin to a friend of Federici's brother who had just arrived in town "from somewhere out west" and wanted some heroin but could not make any connections. Defendant's reply was "absolutely not." Federici called again the next day and, after some conversation, defendant said he would sell the rest of the heroin (defendant had "snorted" some of it) but only to Federici.
On February 19, 1973, Federici notified the police that he had arranged a "buy" from defendant. The next day he and Jack Cole, an undercover agent of the State Police Narcotics Bureau, went to the Talbot farm where they met defendant. After Cole was introduced as a friend of Federici's brother, defendant sold a packet of heroin to Cole for $20. Cole explained to defendant that he had been a large drug dealer in Michigan but had been forced to leave by
the police and that he was trying to "set up" in New Jersey to sell drugs. He told defendant he had "a lot of outlets" and was looking for a supplier. According to Cole, defendant then told him that he was capable of supplying ounces of heroin.*fn1
One other item of evidence is relevant to the discussion. When Federici was arrested by the police on February 14, 1973, he was questioned about a person who was then under investigation as an international drug dealer. Federici said that he had never heard of the person but suggested that, if the police wished, he would sell the person some drugs that could later be bought by an undercover agent. According to the officer the suggestion was rejected, Federici being told, "No, we don't operate that way."
In an opinion reported at 135 N.J. Super. 500 (1975), the Appellate Division reversed the judgment of conviction and ordered a new trial. The basis of the Appellate Division ruling was that the trial court had committed prejudicial error in charging the jury to the effect that there could be no entrapment unless the informant in furnishing the heroin to the defendant for sale to the undercover officer "was acting with the consent of the police and as their agent."
The Appellate Division rejected the notion that where the State uses an informant in its pursuit and discovery of criminal activity, it can avoid responsibility for the informant's unlawful actions by claiming that it did not have prior knowledge and did not give prior consent to such activity. Quoting from Sherman v. United States, 356 U.S. 369, 375, 78 S. Ct. 819, 2 L. Ed. 2d 848, (1958), it held that government cannot make use of such informant's activity "'and then claim disassociation through ignorance.'" 135 N.J. Super. at 509.
Although it reversed the judgment of conviction because it found error in the charge, the ...