On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Coleman, Shebell and Stein. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
[261 NJSuper Page 15] The significant issue raised in this appeal is whether the true identity of an informant who negotiated and consummated a sale of drugs should be disclosed in the trial on the issue of guilt where the informer is the State's primary witness. Following a jury trial, defendant was found guilty of second-degree
conspiracy with Harold Garcia*fn1 to possess cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), b(1) and N.J.S.A. 2C:5-2. Defendant was sentenced to a custodial term of eight years, and he was fined $1,500. In this appeal, the following issues have been raised:
I THE USE OF A SPECIAL INTERROGATORY ON THE JURY VERDICT FORM VIOLATED ESTABLISHED STANDARDS APPLICABLE TO THE ADMINISTRATION OF CRIMINAL JUSTICE AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
II THE COURT'S MISINSTRUCTION TO THE JURY ABOUT THE NECESSITY FOR INTENT TO DISTRIBUTE AS AN ELEMENT OF THE SUBSTANTIVE OFFENSE UNDERLYING THE CONSPIRACY CHARGE HAD THE CAPACITY TO CONFUSE THE JURY AND WAS PLAIN ERROR (PLAIN ERROR; R. 2:6-2(a)(1)).
III NUMEROUS IMPROPER AND INFLAMMATORY STATEMENTS INCLUDED IN THE PROSECUTOR'S SUMMATION HAD THE CAPACITY TO INFLAME THE JURY AND AMOUNTED TO PROSECUTORIAL MISCONDUCT TO A DEGREE SUFFICIENT TO WARRANT A REVERSAL OF THE DEFENDANT'S CONVICTION. (PLAIN ERROR; R. 2:6-2(a)(1)).
IV THE COURT'S ERRONEOUS INSTRUCTION TO THE JURY AS TO THE AFFIRMATIVE DEFENSE OF ENTRAPMENT HAD THE CAPACITY TO CONFUSE THE JURY AND BRING ABOUT AN UNJUST RESULT.
V IT WAS SERIOUS ABUSE OF JUDICIAL DISCRETION TO DENY THE NUMEROUS DISCOVERY REQUESTS OF DEFENDANTS.
This case involves a "reverse sting" drug operation conducted by the Somerset County Prosecutor. The prosecutor retained the services of a "so-called informer" to set up drug deals and to sell cocaine at less than market rates. The "so-called informer" was a cocaine broker hired by the prosecutor, and he was paid a percentage of the cash received. The trial Judge described Capola as a paid, professional confidential informer, State v. Florez, 248 N.J. Super. 54, 61, 589 A.2d 1382 (Law Div.1991), who "was, in effect, a State's agent."
The purpose of the operation was to identify and arrest midlevel cocaine dealers in the New York metropolitan area, who were interested in purchasing large quantities of cocaine at wholesale prices. Many of these dealers were believed to reside outside of Somerset County. The present case involves a transaction that was negotiated in defendant's home county of Union and finalized in Somerset County. The role of regular law enforcement personnel was to act as backup surveillance to arrest the buyers when a sale with the "so-called informer" was consummated. The present case involves a sale of drugs which occurred on January 4, 1990.
About one and one-half years prior to January 1990, the Somerset County Prosecutor's Office hired Nicholas Capola (a pseudonym) as a confidential informer. They instructed him to disseminate information in the New York metropolitan area that he knows a person who will sell large quantities of cocaine at less than the usual wholesale prices. The usual price varied between $18,000 to $22,000 per kilogram of cocaine, but Capola disseminated information that he knew a seller willing to accept only $16,000 per kilogram. Capola was that seller. Capola's responsibility was to arrange a meeting at which the buyers would bring cash to a predetermined location to purchase cocaine. Once the drug deal was closed, the buyers would be arrested.
Capola was rewarded rather well for his services when an arrest was made which resulted in the seizure of cash. He would receive a commission of 10% of all cash seized up to $100,000, and 15% in excess of $100,000. Capola has been enormously successful. As the result of his efforts, 13 indictments have been returned against 27 defendants and cash of $1,300,000 has been seized. Consequently, Capola has earned about $145,000 in commissions.
On January 2, 1990, Orizon De La Roche also became an informer for the Somerset County Prosecutor following his arrest during a drug transaction arranged by Capola. He was
not a paid informer; instead he worked as an informant in the hope of receiving a favorable Disposition of his criminal case. On January 4, 1990, De La Roche provided Capola with the names of defendant Florez and co-defendant Garcia as potential cocaine buyers. The first meeting between defendant, Garcia, De La Roche and Capola occurred on January 6, 1990 in Elizabeth, New Jersey. This meeting was the outcome of other Discussions about the sale and purchase of one kilogram of cocaine for $16,000.
At the meeting, defendant approached a car, which Capola and De la Roche occupied, while Garcia remained about 200 feet away in the defendant's car. Capola and defendant discussed the one kilogram of cocaine. After that conversation, Garcia and Florez drove to a diner in Roselle, New Jersey, where the two of them, Capola and De la Roche had coffee. They agreed that after breakfast, Garcia and Florez would follow Capola and De la Roche to a certain area of the parking lot for the Blue Star Shopping Center in Watchung, Somerset County, New Jersey, to finalize the sale for one kilogram of cocaine for $16,000.
When Capola and De La Roche arrived at the parking lot, Capola got out of his car leaving De La Roche behind. Pursuant to a predetermined plan, a surveillance team of regular law enforcement personnel had parked a decoy automobile (a third car) in the designated parking area at the mall into which they had placed one kilogram of cocaine in the trunk. Capola walked from his car to the decoy car with Florez. Garcia followed in their car and parked next to the decoy car. After Garcia showed Capola the money, they got into the decoy car. The money ($16,000) was given to Capola by Garcia. Capola then obtained the cocaine from the trunk of the decoy car, and it was placed into a gym bag. Garcia took possession of the cocaine, while Florez was standing beside the decoy car. Garcia told Capola that the money bag contained one or two checks which were good. As Garcia and Florez were walking back to their car, the surveillance team of law enforcement officers
arrested everyone and seized the cocaine as well as the money. Later, Capola was paid about $1,700 in ...