On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Approved for Publication March 16, 1995.
Before Judges Pressler, Conley and Newman. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
Defendant was convicted of various drug offenses for which he was sentenced, on the State's motion for an extended term, to an aggregate ten year custodial term with a five year parole disqualifier. The required fines, penalties and driver's license revocation were also imposed. On appeal, in addition to claiming without merit that his sentence is excessive, defendant contends that the inability he encountered before and during trial to obtain the address of co-defendant so that she could be compelled to appear and testify deprived him of his constitutional right to compulsory process and should have led to a granting of his motion to dismiss the indictment. Under the particular circumstances here, not the least of which consisted of less than enthusiastic prosecutorial cooperation, and despite the involvement of federal governmental officials and their outright refusal to assist, we are of the view that the prosecutor cannot have it both ways. If he wishes to pursue the charges against defendant, he cannot stonewall defendant's diligent efforts to obtain the presence of the witness.
The facts that led to defendant's drug arrest and subsequent convictions are the following. During police surveillance, defendant was seen engaging in an exchange of "paper money" for a "small object" with co-defendant. According to the officers' version, defendant was the seller. When co-defendant was arrested she had two bags of cocaine in a pocket. Before defendant was arrested and after the alleged transaction with codefendant, the officers claimed that they saw him go into a building, come back out shortly thereafter and take a tissue paper out of his pocket. He purportedly dropped it on the ground and walked away. Just before he was arrested, defendant also dropped a cigarette box on the ground which contained eight baggies of marijuana. The cigarette box was retrieved but a search of the area where the tissue was dropped was unsuccessful. The surveillance officer, however, who had several weeks before been involved in an automobile accident with defendant resulting in damage to his police vehicle, asserted that when he went to the location he was able to find a rolled-up white tissue paper containing a baggie with crack cocaine. Defendant admitted the marijuana was his but denied possession or distribution of the cocaine. He admitted that he had met co-defendant in the street but denied selling her drugs. He said that as they were talking she had dropped a shopping bag which he picked up for her.
Long before his trial, defendant commenced extensive efforts to procure co-defendant as a witness. According to his public defender at the time of a preindictment hearing, co-defendant "vehemently" denied purchasing drugs from defendant. To say she was a crucial defense witness is to put it mildly.
In early 1992, defendant and co-defendant both received a plea offer. Counsel asserts that based upon his experience with the Passaic County Prosecutor's office, the normal policy would be that both would be treated as a "package" so that neither could take advantage of the plea offer unless the other did. Interestingly, the prosecutor has never denied this policy. Counsel discovered, however, in the fall of 1992 that codefendant had entered a plea and had received a probationary sentence. When he contacted the Passaic County Probation officer assigned to co-defendant, he discovered that she had not been reporting and that her whereabouts was not known. He was told that the probation officer had been contacted by a Federal Drug Enforcement Special Agent who claimed that co-defendant had been admitted to the Federal Witness Protection Program and that the trial court would be formally so advised so that her probationary status could be revised. Such notice was never received and, as far as we can tell, co-defendant's noncompliance with her probation has never been pursued by the probation officials.
Obtaining this information, defense counsel commenced further efforts to ascertain co-defendant's whereabouts, status, and/or appearance, including serving a subpoena upon the D.E.A. Cooperation with both federal and state officials was nonexistent, even to the extent of either confirming or denying co-defendant's status in the Federal Witness Protection program. In November 1992, counsel filed a motion seeking, among other relief, an order directing the State to produce the current address of co-defendant, to produce her at trial, and to explain the circumstances of her plea and her entry into the Federal Witness Protection program. Counsel also, pursuant to the Uniform Act to Secure the Attendance of Witnesses From Outside a State in Criminal Proceedings (Uniform Witness Act), N.J.S.A. 2A:81-18 to 23, requested that co-defendant be certified as a material witness and that her production pursuant to N.J.S.A. 2A:81-20 be ordered.
The following is an exchange that occurred between the trial Judge and the prosecutor that is fairly reflective of the tenor of the prosecutor's position on the motion:
: Of course, there's no authority for this request that the defense attorney is citing. He cites a general case of Brady v. Maryland.
But there is no case that he cites in his brief even come close to supporting the position he's asking for.
THE COURT: It's a probation officer. The probation officer knows this witness is in the Witness Protection Program. And you come up here and say, how can I know. Well, the Probation Department knows.
: Would you like me to talk to the probation officer and verify --
THE COURT: That's a thought.
: Why should I, No. 1, why should I accept what the defense attorney is saying.
THE COURT: Because lawyers try to settle cases, try to resolve cases. It seems to me that if this witness, if you know -- maybe you ...