On appeal from Superior Court of New Jersey, Law Division, Essex County.
Michels, Bilder and Baime. The opinion of the court was delivered by Baime, J.A.D.
The State appeals from the Law Division's order dismissing an indictment which charged defendant with possession of a sawed-off shotgun (N.J.S.A. 2C:39-3b) and possession of cocaine (N.J.S.A. 2C:35-10a(1)). The indictment was dismissed because the State refused to comply with an order requiring the police to disclose the identity of a confidential informant. The State contends that the anonymity of the informant should be preserved to avoid the risk of retaliation. We agree and reverse the Law Division's order.
Unfortunately, our review of this case has been hampered by the truncated nature of the record submitted to us. The gist of the State's charges was that a confidential informant, under a prearranged plan with the police, lured defendant from his apartment by feigning interest in purchasing a shotgun which allegedly had been used in a series of robberies. According to the State's version, while engaged in their surveillance, the police observed three males conversing outside of defendant's building: the informant, defendant, and a third person later identified as Jay Smith. Defendant allegedly entered the building and returned shortly thereafter, brandishing a black sawed-off shotgun. The police arrested all three individuals and placed them in a patrol car. An unrelated arrest of another individual was then made and all of the suspects were transported to the tactical squad room at police headquarters. After a brief period, Smith and the informant were set free.
Defendant's version of the incident was markedly different. He claimed that the police raided the apartment and arrested him only when he refused to disclose the whereabouts of his brother. According to the defense's account, no conversation took place outside the building and defendant never had possession of the shotgun. In essence, defendant claimed that there was no informant and the arresting officers' description of the incident constituted pure fabrication. To support his claim, defendant was prepared to present Smith and other residents of the apartment building as witnesses.
We gather from the record that the prosecutor and defense counsel entered into an agreement not to mention the informant's role in luring defendant from the apartment building. The trial commenced on that basis. Following opening statements, the State presented its first witness, the police officer who had allegedly planned the arrest with the informant. The officer testified that he and several detectives embarked upon a surveillance of the building based "upon certain information he had received." See State v. Bankston, 63 N.J. 263, 268, 307 A.2d 65 (1973). According to the officer, from the vantage point of his unmarked patrol car, he observed three males standing adjacent to the entrance of the apartment building. At this point, the trial was interrupted because the defense attorney was required in another court.
When the trial resumed, the prosecutor complained to the Judge that defense counsel, in his opening statement, had breached the agreement not to allude to the informant. We have not been presented with a transcript of the opening statement and the colloquy concerning defense counsel's allegedly wayward remarks is extremely obscure. The point is unimportant except that it prompted the Law Division Judge to suggest sua sponte that defendant was entitled to disclosure of the identity of the informant. On his own motion, the trial Judge conducted an Evid.R. 8 hearing, eliciting testimony from the arresting officer that he knew the informant only by his first name, that he had received information from him on at least five prior occasions and that he
generally paid him for the "tips" he revealed. Following the hearing, the Judge granted a mistrial and ordered the prosecutor to disclose the name, address and social security number of the informant.
Based upon the request of the prosecutor, another Evid.R. 8 hearing was later conducted. The arresting officer provided additional testimony relating to his relationship with the informant and the danger of retaliation if his identity were to be divulged. Defense counsel merely reiterated the factual contention that the police raided the apartment building and retrieved the shotgun from an undisclosed place. The attorney reaffirmed his intention to call Smith, who he represented was available to testify, and other residents of the building to corroborate defendant's version of the incident.
Following the hearing, the Law Division Judge again directed the prosecutor to provide the defense with the name, address, and social security number of the informant. In reaching this result, the Judge expressed doubt that an informant actually existed. The Judge also observed that, under the State's version, the informant was a key participant in the criminal event and, in any case, was probably known by the defendant. ...