On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County.
Approved for Publication June 5, 1997.
Before Judges Havey, Brochin and Kestin. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by
Defendant was charged with and convicted of four third degree crimes involving cocaine: possession, possession with intent to distribute, distribution, and distribution in a school zone. Three of the convictions were merged, and a prison term of five years with three years of parole ineligibility was imposed. For distribution in a school zone, defendant was sentenced to a separate, concurrent five-year prison term with three years of parole ineligibility. Monetary sanctions premised upon two convictions were ordered: $2,000 in DEDR penalties, $150 in SSCP penalties, $100 in VCCB assessments, and $100 in lab fees; along with a twelve-month driver's license suspension.
On appeal, defendant raises the following issues:
POINT I THE TRIAL COURT'S REFUSAL TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT, WHO WAS PRESENT DURING THE TRANSACTION AND THEREFORE WAS A CRITICAL WITNESS, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Partially Raised Below)
POINT II THE SENTENCE ON COUNT FOUR SHOULD BE MERGED WITH THE SENTENCE ON COUNT THREE.
The charges against defendant arose from undercover work of the Millville Police Department. The only witnesses at trial were Officer Birnstiel and Detective Harvey. Birnstiel, a recent police academy graduate, had commenced his active duty with the Department three weeks before the date of the incident which resulted in defendant's arrest. On that date, he was re-assigned from regular service on uniform patrol to plain-clothes duty for the purpose of making drug purchases as part of an investigation conducted by Harvey.
Birnstiel rode as the passenger in an automobile to the Wade East apartment complex. The only other occupant of the car was the driver, an unidentified person who, Detective Harvey testified, was "a confidential informant [he had] used in the past." The presence of the "confidential informant" was not noted in either Birnstiel's or Harvey's written report of the incident.
When the car came to a stop after entering the apartment complex, three individuals approached the passenger side of the vehicle and leaned over to speak through the open window. Birnstiel stated that he wished to make a drug purchase. In exchange for twenty dollars, one of the individuals handed him a glassine bag containing white powder, encouraging Birnstiel to taste the contents for quality on the spot. Birnstiel felt pressured by the circumstances and made an excuse to leave quickly. As he departed, the seller stated "that to get any more, to contact him when we came back, or any other time, to ask for Boo." Birnstiel asked the seller whether he was Boo, "and he said, yes, just ask for Boo."
Birnstiel also testified that the area was well lit and that he could see clearly. In his written report as related in his testimony, he described the seller of the drugs as "a medium build person and approximately 5'8["], black male, . . . [wearing] an orange tank top and a . . . black ball cap."
Birnstiel returned to police headquarters about an hour after the incident. He handed in the glassine bag of white powder after initialing it, *fn1 and met with Harvey to recount what had occurred at Wade East. When Birnstiel mentioned that the seller of the drugs had referred to himself as Boo, Harvey left the room and returned minutes later with a photograph which he displayed to Birnstiel without ...