On appeal from the Superior Court, Law Division, Mercer County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before this court on appeal from defendant Senen Medina's conviction at a jury trial of certain narcotics offenses. Following an investigation in which Leroy Ellis, a convicted criminal, cooperated with the State, a six-count indictment was returned on January 8, 1982 against defendant charging him with: possession of a controlled dangerous substance, cocaine, contrary to N.J.S.A. 24:21-20a(1) (counts one and four); possession of a controlled dangerous substance, cocaine, with intent to distribute contrary to N.J.S.A. 24:21-19a(1) (counts two and five) and distribution of a controlled dangerous substance, cocaine, contrary to N.J.S.A. 24:21-19a(1) (counts three and six). The indictment concerned two incidents on September 22 and September 23, 1981 when defendant sold cocaine to Ellis in Trenton. The principal issue on this appeal relates to defendant's claim that Ellis had supplied this cocaine to defendant and had thus entrapped him.
There were significant pretrial proceedings. At a plenary hearing the court on the State's motion disqualified defendant's attorney, Robert A. Farkas, from representing him because Farkas was an assistant Mercer County prosecutor during the investigation of defendant and had some knowledge of the case from that time. Further, prior to the trial the State moved to quash subpoenas served at defendant's request upon Mercer County Prosecutor Philip S. Carchman and Clair Calandra, a former assistant prosecutor. The judge granted this motion because he saw no indication that either had relevant testimony to offer. At the ensuing jury trial defendant was found guilty on all counts of the indictment.
Defendant was sentenced to an aggregate term of 30 years imprisonment with a 15-year period of parole ineligibility broken down as follows. On count one defendant was sentenced to five years imprisonment to be concurrent with the sentence on count three. The conviction on count two was merged into the conviction on count three and on count three defendant was
sentenced to 12 years imprisonment with a six-year period of parole ineligibility. On count four defendant was sentenced to five years imprisonment to run concurrently with the sentence on count six. The judge merged the conviction on count five into the conviction on count six and on count six defendant was sentenced to 18 years imprisonment with a nine-year parole ineligibility, consecutive to the sentence on count three. Four separate penalties of $25 for the use of the Violent Crimes Compensation Board were assessed. This appeal followed.
The case against defendant was developed as an outgrowth of Ellis' indictment in early 1981 for a drug offense. Ellis engaged in negotiations with representatives of the State, including Lieutenant Stephen Agocs of the Mercer County Prosecutor's office. These negotiations resulted in an agreement for him to cooperate in the investigation of other cases. It was contemplated that Ellis would be wired with equipment to record his conversations with suspects under police investigation.
The plan came to fruition. In May 1981 the Mercer County Prosecutor's office asked Ellis to assist in an investigation of defendant. According to Ellis, early on September 22, 1981 while he was working at an organization called United Progress in Trenton he met with defendant who told him if he wanted "some" he had "better catch up with him quick." Ellis knew that defendant was referring to cocaine because he had talked to Ellis about cocaine two to three weeks previously. Ellis and defendant agreed to meet at defendant's house at 11:00 a.m. on the same day.
Ellis testified that following his conversation with defendant at United Progress he attempted to contact Donald Hunt of the Trenton Police Drug Enforcement Unit but since he could not reach him he telephoned Agocs and told him of the projected 11:00 a.m. meeting. Agocs instructed Ellis to meet him at the Mercer County Administration Building parking lot on South Broad Street in Trenton at 10:30 a.m. At approximately 9:30
a.m. on September 22, 1981 Agocs called Investigator Quinton Collins of the Mercer County Prosecutor's office, Special Investigations Unit, and told him about Ellis' telephone call. Agocs told Collins to prepare a consensual interception form so that the prosecutor could authorize interception of Ellis' oral communications. Once the authorization was received and a plan formulated, Collins and Investigator Esther Fausti of the prosecutor's Special Investigations Unit met Ellis at the parking lot at the administration building.
Ellis was given money to use for purchasing the cocaine from defendant. After Collins searched Ellis and the van for drugs, he affixed the transmitting and recording equipment to Ellis' body and taped down the switches so they would not be accidentally turned off once activated. Collins then told Ellis when making the purchase to remain in his seat, not to get out of the vehicle and not to go to the rear of the vehicle. Ellis then went to defendant's home at 554 Centre Street. Collins and Fausti followed in an unmarked vehicle.
Ellis arrived at defendant's home at 11:13 a.m. on September 22, pulling his van to the curb in front of the house. Defendant who was sitting on the porch walked to the passenger side of the van and asked Ellis if he had the money. After Ellis answered affirmatively defendant walked across the street to a silver Ford, reached inside and removed a package of cocaine which he then gave to Ellis. The tapes show that defendant urged Ellis to taste the cocaine which defendant said was good. Indeed defendant indicated he was selling the contraband with a money-back guarantee. Defendant also offered to sell Ellis more cocaine for $475 but said the sale had to take place the next day because he was leaving for Miami. There was not the slightest suggestion in the tape-recorded conversation that the cocaine had originally come from Ellis. Indeed defendant was pushing the sale. Ellis testified that he gave defendant $250 and arranged to meet him the same time the next day.
After completing his purchase Ellis, followed by Collins and Fausti, drove back to the South Broad Street parking lot where Ellis gave Collins the package of cocaine purchased from defendant. Collins then turned off the transmitting and recording devices and removed them from Ellis' body and searched Ellis and the van. He did not find the money given Ellis for the cocaine buy. A field test of the material purchased by Ellis from defendant was positive for cocaine.
According to Ellis on September 23, 1981 he saw defendant changing a flat tire. Ellis told defendant the cocaine he purchased the previous day was "pretty good" and he wanted to get some more. Ellis said defendant told him to come by defendant's house at 11:00 a.m. when his wife would not be home. Ellis subsequently called Agocs and told him about the plan. Ellis was then told to meet members of the prosecutor's staff. Agocs then telephoned Collins and told him Ellis was going to make a second drug buy from defendant. Agocs told Collins again to meet Ellis at the South Broad Street parking lot. This time Collins brought Fausti and three other investigators, Frascella, Byrne and Fredericks to meet Ellis.
The procedure followed a day earlier was repeated. Ellis and the van were searched prior to the buy and Ellis was told how the buy was to "go down." Ellis was given $500 in cash but was told to try to buy the cocaine for $475. Collins, Byrne and Fredericks then went to set up camera equipment to photograph the drug exchange. Frascella and Fausti affixed the recording and transmitting equipment onto Ellis with Fausti taping the switch down so it could not be accidentally switched off. Officers then followed Ellis to defendant's house.
When Ellis pulled up in front of defendant's house, defendant was sitting outside in a red and black Rambler. Defendant got out of the car and approached the driver's side of Ellis' van and asked Ellis if he had the money. Ellis said he had $475 and would owe the other $25 but when defendant complained about this Ellis agreed to pay the $500 which he ultimately did. After
Ellis agreed to pay in full defendant went to the trunk of the Rambler, retrieved the package and went back to the driver's side of the van where Ellis was sitting. Defendant then gave Ellis a box containing the cocaine. Ellis left the area and returned to the parking lot followed by the investigators. At the lot Ellis turned over the box containing cocaine to Fausti who gave it to Collins. The recording devices were then ...