On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-00405.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Lihotz.
Defendant Louis Zamor was charged in Union County, Indictment No. 05-03-00405, with the following offenses: third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1)(count one); third-degree possession of a CDS intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); second-degree possession of a CDS with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (count four).
The jury convicted defendant on all counts. At sentencing, the State's motion to impose an extended term on count three was granted. After merger of counts one and two with count three, defendant was sentenced to a twelve-year term of incarceration with a six-year period of parole ineligibility on count three, and a five-year flat term on count four to run consecutive to the sentence imposed on count three. Applicable fines and assessments were also imposed along with a six-month suspension of defendant's driving privileges. On its own motion, the trial judge reviewed the imposed sentence, R. 3:21-10, concluding it was erroneous. After merger, the trial court modified the sentence on count three to a ten-year term of incarceration with a five-year period of parole ineligibility. The remaining aspects of the sentence were unchanged.
On appeal, defendant advances a single argument, challenging the trial court's determination not to disclose the asserted confidential on-going police surveillance location, stating:
THE CONVICTIONS MUST BE REVERSED BECAUSE DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL WHEN THE COURT RULED THAT THE STATE DID NOT HAVE TO DISCLOSE THE VANTAGE POINT FROM WHICH THE POLICE VIEWED THE ACTIVITIES THAT LED TO HIS ARREST.
Defendant was arrested on November 28, 2004, after uniformed Elizabeth patrol Officers Michael Loges and Jose Martinez, first observed defendant pacing up and down Anna Street and Jefferson Avenue, near 1142-1144 Anna Street, at approximately 11:30 p.m., on a dark, cold, rainy evening. The area was well-known to the officers for its high level of drug activity.
After midnight, the officers exited their marked patrol vehicle and walked to an undisclosed location, approximately 50 to 60 feet from 1142-1144 Anna Street, to commence surveillance. During their surveillance, the officers witnessed three separate interactions between defendant and three unidentified males. During each encounter, an individual approached defendant and briefly conversed with him. Defendant then walked to the rear yard of 1142 Anna Street, reached into a black bag underneath the fence behind the house, pulled something out, walked back to the individual, and engaged in what was described as a "hand-over-hand" drug transaction.
Defendant was arrested. The search incident to arrest yielded $329 cash, consisting mostly of small bills, and a single vial of what was later determined to be crack cocaine. The officers also recovered the black bag, which contained an additional 131 vials of crack cocaine, with pink caps, matching the vial found in defendant's possession.
Prior to trial, the court held an in camera hearing on the State's pretrial motion to withhold the exact location of the police surveillance site. See N.J.R.E. 515. Finding that the non-disclosure privilege was properly invoked and that "there would be a compromise of the ongoing surveillance" as revelation of "the actual specific location of where the surveillance took place . . . would hurt the public interest if that were disclosed," the trial judge granted the State's request. See State v. Garcia, 131 N.J. 67, 78 (1993); State v. Zenquis, 131 N.J. 84, 88 (1993); see also State v. Crudup, 176 N.J. Super. 215, 220 (App. Div. 1980). Defendant was permitted to cross-examine the officers about the distance, angle of sight, elevation, whether the location was stationary or moving, whether the view was obstructed, whether their ability to see was in any way impaired, and whether the officers used or needed to use binoculars or other vision enhancing devices to make their observations. See State v. Ribalta, 277 N.J. Super. 277, 289-90 (App. Div. 1994).
A court's determination not to disclose a surveillance location will not be disturbed on appeal absent a showing that there was an abuse of discretion. Id. at 81; Zenquis, supra, 131 N.J. at 88. "Trial courts must consider possible disclosure of surveillance locations on a case-by-case basis." Garcia, supra, 131 N.J. at 80. In deciding whether to require disclosure, a court must focus on the negative effect that such disclosure may have on the public good, id. at 80, and balance the State's need to prevent disclosure to protect the public interest against the defendant's need for the information to prepare his defense. Id. at 81; Zenquis, supra, 131 N.J. at 88. "[A] defendant seeking to learn the location of a police surveillance post should ordinarily show that he or she needs the evidence to conduct his or her defense and that there are no adequate alternative means of getting at the same point." State v. ...