On certification to the Superior Court, Appellate Division, whose opinion is reported at 261 N.J. Super. 12 (1992) (State v. Alex Florez), and on certification to the Superior Court, Law Division, Somerset County (State v. Harold Garcia).
For affirmance and remandment in State v. Florez -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. For reversal and remandment in State v. Garcia -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
[134 NJ Page 574] Defendants were arrested as a result of their purchase of one kilogram of cocaine from a paid informant, who, with the participation of another informant, helped to negotiate and consummate the drug sale and was the State's primary witness. Following a jury trial, they were convicted for the drug offense. This case raises the issue of whether the State was required to disclose the true identity of the paid informant. The role of the informants also poses the issue of whether, under the circumstances, defendants were entrapped as a matter of due process. That issue bears on the additional issue of whether the State violated defendants' right to discovery by failing to disclose the fact that the
other participant in the drug sale was also an informant. The final issue is whether the trial court's failure to instruct the jury on the weight of the cocaine as a necessary element of the underlying offense of possession with intent to distribute constituted error.
After their arrests for the attempted purchase of cocaine, defendants, Alex Florez and Harold Garcia, were indicted for conspiracy to commit the crime of possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), b(1), and N.J.S.A. 2C:5-2, and conspiracy to commit the crime of distribution of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5a(1), b(1), and N.J.S.A. 2C:5-2. Garcia was also charged with resisting arrest, contrary to N.J.S.A. 2C:29-2. The trial court later dismissed the charges of conspiracy to commit the crime of distribution of a controlled dangerous substance as redundant.
Before trial, defendants brought motions to require the State to disclose the true identity of the primary informant as well as to furnish an unredacted report of his criminal record. The court denied those motions. 248 N.J. Super. 54, 589 A.2d 1382 (Law Div.1991). A jury convicted defendants of second-degree conspiracy 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. Defendants then renewed earlier motions for judgments of acquittal and also moved for a new trial, all of which the court denied. The court thereafter sentenced defendants to eight years in prison and imposed fines.
Defendant Florez appealed his conviction to the Appellate Division. That court ruled that the conviction must be reversed on the ground that the State should have been required to disclose the principal informant's true identity, and further indicated that defendants' discovery rights had been violated and that the trial court had not properly resolved the entrapment defense. 261 N.J. Super. 12, 617 A.2d 670 (1992).
This Court granted the State's petition for certification, 133 N.J. 442, 627 A.2d 1147 (1993), and also granted a motion for direct
certification filed by Garcia, 134 N.J. 474, 634 A.2d 522 (1993). During the pendency of the appeal, Florez filed a cross-petition for certification, which the Court now grants, nunc pro tunc.
The important facts are described fully in the opinion of the trial court, denying defendants' pretrial motions to learn the true identity of the principal informant, 248 N.J. Super. at 56-58, 589 A.2d 1382, and in the opinion of the Appellate Division, reversing Florez's conviction, 261 N.J. Super. at 16-19, 617 A.2d 670.
The trial court explained the prosecutor's use of the paid informant:
This case involved a "reverse sting" in which the police posed, not as buyers of cocaine as usually occurs, but as sellers. The purpose of the operation is to identify and arrest mid-level cocaine dealers in the New York metropolitan area who seek to purchase large quantities of cocaine at wholesale prices. These dealers, who are known to distribute cocaine throughout the entire New York metropolitan area, including Somerset County, generally do not reside in Somerset County and, in this case, reside in Union County.
About one and one-half years ago, the Somerset County Prosecutor's Office hired Nicholas Capolo as a confidential informant (hereafter CI) and 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 usual wholesale prices. The usual price was $18,000 to $22,000 per kilogram of cocaine, but he said that this seller was willing to accept only $16,000 per kilogram. CI's responsibility was to arrange a meeting at which the buyers would bring cash to a predetermined location to purchase cocaine from an undercover police agent and at that time the buyers would be arrested.
In addition, the trial court noted how the informant was paid:
The State agreed that, if the services of CI resulted in an arrest, he would receive a fee for his services of 10% of all cash seized up to $100,000, and 15% in excess of $100,000. CI has been enormously successful. As the result of his efforts 13 indictments have been returned against 27 defendants and cash of about $1,300,000, generally in $5, $10, $20 and $100 bills, has been seized. Consequently, CI has earned over $130,000.
The Appellate Division described the involvement of the informants in the commission of the specific crimes that were charged against defendants:
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.*fn1 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 of 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 commissions for this drug deal.
From those accounts, Copola clearly was a regularly-used informant who had established a continuing relationship with law-enforcement
authorities and was highly paid on a contingent basis depending on his success in getting persons to commit drug crimes, specifically, the illegal purchase of large quantities of drugs for substantial sums of money. That he played a central and critical part in the commission of the crimes allegedly committed by defendants is also clear.
Whether the State should have disclosed Copola's true identity to defendants is governed by the informant's privilege. Evidence Rule 36 (now Evidence Rule 516) provides that a witness need not provide the identity of an informant unless the identity of that person has already been otherwise disclosed or "disclosure of his identity is essential to assure a fair determination of the issues."
The privilege exists to secure a flow of vital information which can be had only upon a confidential basis. Not all such information comes from people of high motivation. The police must have the aid of men of lesser quality who respond to selfish inducements, including money. These men are needed for what they know, but also for what they can learn because of their associations. This is especially true with respect to crimes of a consensual nature as to which there is little likelihood that a victim will complain. [Citations omitted.] The informer paid or not, is subject to risks of retaliation which a regular member of a police force need not fear and hence, whether paid or not, he comes within the protection of the privilege.
However, the informant's privilege is not absolute. As the United States Supreme Court has stated:
Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
[ Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 645 (1957) (footnote omitted).]
Without a strong showing of need, courts will generally deny a request for disclosure. Thus, in State v. ...