On appeal from Superior Court, Law Division, Union County.
Petrella, Havey and Stern. The opinion of the court was delivered by Petrella, P.J.A.D.
[239 NJSuper Page 621] The issue on this appeal is whether a defendant's right to cross-examination was violated when he was precluded from questioning a police officer about the precise location of his
vantage point during a pre-arrest surveillance.*fn1 The trial judge ruled that the surveillance point would have to be disclosed in a new trial in order to satisfy defendant's Sixth Amendment right to confront and cross-examine witnesses.
The State appeals, contending that the trial judge erred in granting defendant's new trial motion.
On December 9, 1988, a Union County Grand Jury returned an indictment against defendant Claude Williams charging him with third degree possession of a controlled dangerous substance (cocaine or heroin or both), in violation of N.J.S.A. 2C:35-10(a) (count one); and third degree possession thereof with intent to distribute, in violation of N.J.S.A. 2C:35-5(b) (count two).
On June 22, 1989, the trial judge conducted a pretrial in camera hearing (from which defense counsel was excluded) to inquire as to the confidential surveillance location utilized by the police during their investigation of Williams. On the basis of that hearing, she ruled that the State would not be required to disclose the location of that surveillance point and that cross-examination during trial would be restricted to protect that information. The court later reiterated its decision when defense counsel asked for a reconsideration of the decision. At the conclusion of the proceedings on June 27, 1989, the jury found Williams guilty on both counts of the indictment.
Williams filed a motion for a new trial and moved for a judgment of acquittal based on insufficiency of the evidence. The trial judge granted the new trial motion on the ground that her earlier ruling restricting Williams' ability to cross-examine the State's witnesses as to the precise location of the surveillance site was erroneous. The motion for acquittal was denied.
We granted the State's motion for leave to appeal the order of the trial judge granting defendant's motion for a new trial.
The facts are not complicated. On September 17, 1988, at approximately 4:00 p.m., Officer Michael Waldron of the Plainfield Police Department Uniform Response Team (street level narcotics unit), was conducting a surveillance in the Hanna Atkins Park area of South Second Street in Plainfield. Waldron described this area as a high narcotic area due to numerous arrests and citizen complaints.*fn2
From his hidden surveillance site, Waldron observed an individual, later identified as defendant Williams, making an "exchange" with another individual. Waldron observed Williams hand the individual a small item.
Waldron remained at his surveillance point and, a few minutes later, observed another individual hand Williams some money. After receiving the money Williams walked north towards the railroad tracks and reached into the weeds and high grass for a bag with a yellow strip on the top. He opened the bag, removed some small items, and put the bag back into the weeds and high grass. Williams then returned to the individual who had given him the money and handed the small items to him. Waldron testified that based on his training and experience, he believed that what he had been observing was a narcotics transaction.
Waldron then radioed Williams' description, a description of where he was standing and a description of the area of the hidden bag to three other officers who were slightly out of sight of the area. The officers contacted by Waldron drove to the area where Williams was located and detained him as well as others in the area. Waldron then directed one of those officers by radio to the exact location of the suspected bag of narcotics. The officer recovered the bag described by Waldron
and placed Williams under arrest. The bag was found to contain cocaine and heroin and the defendant had $268 in his possession.
An investigator from the Union County prosecutor's office testified that in her expert opinion, Williams possessed the cocaine recovered by the police with the intent to distribute it. The investigator so concluded based upon the quantity, variety and packaging of the drugs found, the money seized, the area in question and Waldron's testimony.
During the in camera hearing, Officer Waldron testified to the location of his surveillance point and the difficulty and problems with attaining its use. During both cross-examination and the in camera hearing, Waldron testified that he was approximately 150 to 220 feet away from where the drug transaction took place. Waldron stated that he used a pair of 10 x 50 binoculars to aid him in his observations and that even though it was raining pretty heavily, he was able to see clearly and there was nothing at the scene to obstruct his view. The officer also noted that his surveillance point was from a location still considered confidential by the Plainfield Police Department and that it was still in use by the department for other surveillances.
During the course of Waldron's cross-examination, the judge again ruled that Williams would not be able to question the witness as to the precise location of the surveillance point. The court reasoned that other questioning by the defense of Waldron and the other police witnesses who would testify would be sufficient to permit Williams to test the accuracy of the officer's observations. The judge also noted that Williams could cross-examine Waldron as to the distance from which he observed the transaction and as to the use of the binoculars (which defense counsel did), and that the other responding officers could be examined by Williams as to the accuracy of Waldron's radio transmissions to them. At the end of cross-examination, the judge instructed the jury that the surveillance
point would not be disclosed. This was reiterated during the court's ...