On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Botter, Polow and Brody. The opinion of the court was delivered by Polow, J.A.D.
Defendant Donald Rockholt was convicted of distributing methamphetamine (N.J.S.A. 24:21-19(a)(1) and (b)(3)), receiving a stolen Atlantic City police motorcycle (N.J.S.A. 2C:20-7(a)), misconduct in office in connection with the sale of the police motorcycle (N.J.S.A. 2C:30-2(a)) and receiving stolen police identification cards (N.J.S.A. 2C:20-7(a)). The conviction for receiving the stolen motorcycle was vacated and an aggregate sentence of eight years in State Prison was imposed. On this appeal defendant charges that N.J.S.A. 2C:2-12(b) of the Code of Criminal Justice is unconstitutional in that it places the burden to prove entrapment upon the defendant and that the instructions to the jury regarding entrapment were so improper, confusing and ambiguous as to warrant a new trial. In addition, defendant asserts trial court errors in rulings on evidence and in denial of defendant's motion to dismiss the official misconduct charge at the end of the State's case. Finally, he challenges the sentence imposed as "clearly excessive."
Defendant had been a member of the Atlantic City Police Department for almost nine years when he resigned in August 1980, following the events which culminated in his indictment and convictions. Two State Police undercover agents, unknown to Rockholt, approached him in the "My Way Lounge" in Atlantic City. Upon entering the lounge the detectives took note of defendant at the bar in his Atlantic City police uniform, since drinking on duty violates traditional police regulations.
The two undercover detectives were involved in "Operation Seashore" in Atlantic City. They were assigned to "get acquainted in the neighborhood and pose as buyers of stolen property" and to "let it be known that they were purchasing drugs." They engaged Rockholt in general conversation which soon turned to a discussion about motorcycles. According to
defendant, he was intoxicated at the time and the two strangers plied him with drinks. When Rockholt announced that he was a motorcycle officer, one of the detectives expressed his dream that "some day [he would] own a Harley." There is conflict in the testimony regarding whether defendant made the first offer to sell a police department motorcycle or the undercover men first offered to buy one. Ultimately, the conversation became serious and, after some negotiations, the price of $600 was agreed upon.
Rockholt met the two detectives in a vacant lot opposite the municipal garage shortly after midnight. After returning from the building defendant suggested that they meet him at the State Marina parking lot. Still in uniform, defendant delivered a police department motorcycle and accepted the $600.
According to Rockholt, the undercover agents must have known his desperate state of mind, his need for alcohol and drugs. He testified that "it's like starving to death and laying food in front of you, saying, 'do this and you will have food.'" He insists that he was already intoxicated when they encountered him; that they persisted in supplying him with drinks, and that he only agreed to sell the motorcycle to obtain money for his drug habit.
About one month later the two detectives again encountered defendant, this time at the Night Owl Lounge in Atlantic City. After some general conversation the discussion again turned to stolen property. The testimony is conflicting with regard to who introduced the subject of obtaining blank police department identification cards. Ultimately, the detectives agreed to purchase five cards at $50 each. However, defendant was unable to produce the cards immediately. The detectives handed him a business card containing the address of a store where they could be reached. Rockholt appeared the next day and sold various I.D. cards and other stolen items, for which he received $440. The store was actually a front for the State Police "Operation Seashore" and the entire transaction with Rockholt which took place there was videotaped and played for the court and jury.
The final transaction between Rockholt and one of the agents took place about five months later. Defendant appeared at the store and sold the agent 1.5 grams of "speed" for $90.
The fact that the transactions occurred is not denied. Rockholt's defense centered mainly on entrapment and his susceptibility because of his drug addiction and alcoholism for which he had entered a residential treatment ...