On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Michels, Deighan and R.s. Cohen. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendant Carlos Varona was convicted of conspiracy to distribute five or more ounces of cocaine in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) and b(1) and possession of five or more ounces of cocaine with at least 3.5 grams of free base with intent to distribute in violation of N.J.S.A. 2C:35-5a(1) and b(1). Defendant's motion for a judgment of acquittal or, alternatively, for a new trial, arrest of judgment and a dismissal were denied. The trial court merged defendant's conviction for conspiracy into his conviction for possession with intent to distribute and committed him to the custody of the Commissioner of the Department of Corrections for 20 years with a 10-year period of parole ineligibility. In addition, the trial court assessed a Drug Enforcement and Demand Reduction penalty of $3,000, a laboratory fee of $50, a Violent Crimes Compensation Board penalty of $30, and revoked defendant's driving privileges for two years. Defendant appeals.
Defendant seeks a reversal of his convictions, or, alternatively, a modification of his sentence on the following grounds set forth in his brief:
I. THE "ISSUE" OF THE INFORMER'S PRIVILEGE TAINTED THE ENTIRE TRIAL.
A. The Identity of the Informant, Including His Name and Address, Should Have Been Disclosed.
B. Defendant's Attempt to Establish a Theory of Entrapment Was Needlessly Blocked by the Court in a Mistaken Application of the Informer's Privilege.
C. While Misapplying the Informer Privilege the Court Directed the Jury to Disregard Defendant's Theory of Defense.
II. DEFENDANT'S RIGHTS TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM WAS DENIED.
C. The "Co-Conspirator" Statements of Michael Rodgers Made on February 2, 1988 Were Improperly Admitted Against This Defendant.
III. DEFENDANT'S RIGHT TO COMPULSORY PROCESS WAS DENIED.
IV. 2C:35-12 VIOLATES THE NEW JERSEY CONSTITUTIONAL REQUIREMENT OF SEPARATION OF POWERS.
A. N.J.S.A. 2C:35-12, Authorizing Prosecutors to Agree with Defendants to Reduce Otherwise Mandatory Minimum Sentences, is an Unconstitutional Violation of the Separation of Powers Doctrine as Both an Unlawful Delegation of Legislative Power Over Sentencing to the Executive, and as an Authorization to the Executive to Infringe on the Judicial Sentencing Power.
V. DEFENDANT'S SENTENCE IS EXCESSIVE
A. The Maximum Sentence Above the Presumptive Term, and the Maximum Period of Parole Ineligibility Were Both in Violation of the Sentencing Provisions of the Code of Criminal Justice.
1. There is Inadequate Evidence in the Record to Support the Sentence Imposed.
2. The Maximum Term of Parole Ineligibility is Not Justified on This Record.
B. Defendant's Sentence is so Disparate Compared to His Co-Defendants' as to be Excessive.
C. The Prosecutor's Action in Seeking the Maximum Sentence After Offering Defendant a Fifteen Year Flat Sentence was Purely Vindictive.
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further comment with respect to some of these contentions is appropriate.
We turn first to defendant's claim that the informant's identity and address should have been disclosed during trial because the informant played a substantial and significant role in the transaction. We disagree. It does not appear on this record that the informant's involvement was so substantial as
to warrant revelation of his identity. On the contrary, the informant's role in the transaction was limited. The informant primarily introduced undercover officer Pedro Villegas to the defendants. The informant did not negotiate, conduct or set up any of the sales, nor did he possess any drugs or money at the time of the sales. His most significant involvement came when he accompanied co-defendant Michael Rodgers to meet defendant. This does not rise to the level of participation described in State v. Roundtree, 118 N.J. Super. 22, 285 A.2d 564 (App.Div.1971), or Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). Rather, as was the case in State v. Booker, 86 N.J. Super. 175, 206 A.2d 365 (App.Div.1965), and State v. Milligan, 71 N.J. 373, 365 A.2d 914 (1976), the informant here was merely a witness to the criminal events which transpired. This is not grounds for disclosure of his identity and does not waive the privilege codified in N.J.S.A. 2A:84A-28 and Evid. R. 36.
Defendant also contends that the trial court's application of the privilege hindered his assertion of an entrapment defense. This is totally without merit. As the State correctly points out, "[t]he trial testimony revealed that at no time was entrapment presented as a defense. In fact, the court gave no instruction on entrapment and defendant never requested such a charge." Defendant raises entrapment as a mere afterthought. Aside from the fact that defendant failed to raise an entrapment defense, the facts established below give no indication that an entrapment defense would have been successful. Villegas testified that the informant merely introduced him to the defendants and contacted him when the February 4th shipment was ready. Aside from the few moments that the informant was alone ...