December 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DURAN A. BURRUS A/K/A RASHARD AMIR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-06-0350.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Axelrad, Payne and Messano.
Defendant Duran Burrus appeals from: 1) the judgment of conviction and the sentence imposed following the jury's verdict finding him guilty of distributing cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); and 2) the sentence imposed following his plea of guilty to violating probation. He raises the following points on appeal:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT.
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING CROSS-RACIAL IDENTIFICATION.
THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS. (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant's pro se brief reiterates the first point and raises one additional point.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE IDENTIFICATION OF THE DEFENDANT.
Having considered these contentions in light of the record and applicable legal standards, we affirm.
On October 7, 2004, defendant pled guilty to possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3), under Indictment 04-08-00528. He was sentenced to a three year period of probation. On March 17, 2005, defendant was charged with violating his probation specifically by failing to report to his probation officer.
On June 14, 2005, the Cape May County grand jury returned Indictment 05-06-00350 charging defendant with distribution of cocaine in the third degree, N.J.S.A. 2C:35-5a(1) and -5b(3); and distribution of cocaine within five hundred feet of public property in the second degree, N.J.S.A. 2C:35-7.1 and -5a(1).
Before trial commenced, defendant moved 1) to suppress an out-of-court photographic identification made of him by the State's main witness, Investigator Kathryn Curtin; and 2) to compel the State to reveal the identity of a confidential informant (CI) used to facilitate Curtin's purchase of drugs from defendant. After oral argument, the trial judge concluded that defendant had raised an issue of "impermissible suggestiveness" regarding the photographic identification procedure, and he granted defendant a Wade*fn1 hearing outside the presence of the jury. The judge decided to "reserve [decision] on the CI issue pending the testimonial portion [of] the hearing."
The State called Curtin as its first witness at the hearing. On October 21, 2004, she was employed by the Cape May County Prosecutor's Office as an "undercover investigator" and met with the CI in an attempt to purchase some drugs. Curtin listened as the CI placed a phone call to an unidentified male and asked about buying some drugs. Together, Curtin and the CI, shadowed by backup police units, proceeded to 146 Lincoln Avenue, Wildwood. When they arrived, Curtin and the CI were shown into the apartment and met with someone who identified himself only as "Leroy." Curtin identified defendant as he sat in the courtroom as "Leroy." With the CI in the apartment with her, Curtin purchased six bags of cocaine from defendant.
Curtin returned to headquarters and wrote her report, describing defendant as a "black male, slender build, wearing braids, with a black jacket and blue jeans." The next day Curtin was shown a photograph of defendant by fellow investigator Chris Korobellis; she identified the picture as being that of the man who sold her the drugs a day earlier. Curtin signed the photograph and dated it.
The State produced Korobellis as its next witness at the hearing. He was a member of the backup unit that followed Curtin as she purchased the drugs from defendant. On October 22, 2004, the CI called Korobellis and gave him an alias that he claimed was used by "Leroy." Korobellis had heard the alias, "Allday," before and knew that the Middle Township police had previously arrested someone who used that name. He drove to that police department and secured a photograph of defendant. Korobellis showed the photo to Curtin, asked if she knew the person in the picture, and she responded, "That's Leroy."
No other witnesses were produced during the Wade hearing. After extended oral argument from the attorneys, the trial judge denied both of defendant's motions and the trial proceeded before the jury. Defense counsel's opening statement clearly announced that identity was the critical, indeed only, issue in the case. He stated, "[y]ou're not going to hear any serious contest from me that there was a drug transaction that took place." Rather, referring to defendant, he asked the jurors to consider, "[I]s this man the person that actually did the transaction[?]"
At trial, Curtin reiterated much of her testimony previously given during the Wade hearing. She noted that it was the intention of the police to continue to buy drugs from defendant, and they therefore did not arrest him on the night of October 21. However, she was unable to again reach defendant using the cell phone number that she used that night. Korobellis also appeared before the jury and he essentially reiterated his earlier testimony given during the pre-trial hearing.
The State rested and defendant called no witnesses. Prior to summations, the judge conducted a charge conference and indicated that he would give the model jury charge on cross-racial identification. Defense counsel opined that the model charge was "defective because it . . . doesn't inform the jury about the possible significance of [the] cross-racial identification factor." He requested the judge augment the charge with specific language from the Supreme Court's decision in State v. Cromedy, 158 N.J. 112, 115 (1999), in particular those portions of the opinion in which the Court referenced various socio-scientific studies demonstrating the unreliability of cross-racial identifications. The judge denied the request, noting that it would be "incorrect" to simply "pull out excerpts in patchwork fashion from Cromedy," and that the model charge, in conjunction with the arguments of counsel, would fairly and adequately focus the jury's attention on the issue. Defendant lodged no other objections to the proposed charge.
After summations, the jury deliberated and returned a guilty verdict as to the first count of the indictment charging defendant with distribution of cocaine in the third degree.*fn2 On December 21, 2005, the State filed a motion seeking an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f) and -7(c) based upon defendant's prior conviction for possession with intent to distribute cocaine for which he had received a probationary sentence.
On February 10, 2006, defendant appeared before the trial judge for sentencing, and, before sentence was imposed, pled guilty to the violation of probation that had earlier been lodged against him. Defense counsel noted that defendant was "subject to an extended term because he is (sic) a second conviction for possession with intent to distribute or distribution." He asked the court to impose "the minimum . . . consistent with the obligations . . . to impose an extended term." The assistant prosecutor, in general terms, offered the judge the State's recommendation for sentence - an extended term of eight years imprisonment, four of which would be served without parole, and a consecutive three-year sentence on the violation of probation.
The judge noted defendant's prior record that included one prior disorderly persons conviction and the prior drug conviction that led to the probationary sentence. He also noted defendant's failure to cooperate with probation in the past. Finding aggravating factors three, six, and nine,*fn3 and no mitigating factors, the judge imposed an extended term of imprisonment of seven years with a three year period of parole ineligibility on the drug conviction, and a consecutive three year sentence on the probation violation. This appeal ensued.
Defendant's challenge to the admissibility of Curtin's outof-court photographic identification lacks sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2). The judge expressly found that Curtin was standing only five feet from defendant when she made the drug purchase, she was certain in her identification, the description contained in the report she filed thereafter was accurate, and the photographic identification occurred within twenty four hours of her actual encounter with defendant. These factors led the court to conclude, and we agree, that Curtin's out-of-court identification of defendant was reliable and not the product of some impermissible suggestiveness. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977).
Defendant argues, as he did at trial, that the identity of the CI should have been disclosed because, under the unique facts of the case, the informant was "an essential witness regarding the basic issue in the case . . .[,] the identity of the seller . . . ." We disagree and find that the argument does not merit any exception from application of the well-recognized "informant's privilege" to shield the CI's identity.
Recognized by N.J.R.E. 516, the informant's "privilege exists to secure a flow of vital information which can be had only upon a confidential basis." State v. Oliver, 50 N.J. 39, 42 (1967). Absent a strong showing of need, a defendant's request to disclose an government informant's identity should be denied. State v. Florez, 134 N.J. 570, 578 (1994). A defendant may demonstrate a sufficient need for disclosure when the informant was an essential witness to a basic issue in the case, when the informant was an actual participant in the crime, when entrapment is asserted, or when principles of fundamental fairness require disclosure. State v. Milligan, 71 N.J. 373, 383-84 (1976). The balancing of the competing interests of the State and the defendant requires the court to evaluate each request for disclosure on a case-by-case basis. Id. at 384.
Defendant conceded that the CI's actual participation in the crime was minimal. The mere fact that the informant was present when Curtin purchased the drugs from defendant is clearly an insufficient reason to justify disclosure. Id. at 388-89.
Rather, defendant contends that the CI's phone call to the police on the day following the drug sale supplies additional justification to compel disclosure in this particular case. During this phone call, the CI supplied an alias allegedly used by the defendant that ultimately led Korobellis to the photograph used to identify defendant. Defendant argues that disclosure, therefore, was essential so that he could question the CI as to why he waited until the next day to disclose defendant's alias, and, thus, challenge the State's proofs as to the basic issue in the case, identification.
We agree with the trial judge who found that there was no real nexus between the CI's "late revelation" of the alias and Curtin's "ultimate identification." This is so because the explanation of how the photograph was actually secured is irrelevant to the issue of suggestibility, particularly since both witnesses testified that the CI never spoke to Curtin about the alias. The circumstances under which Curtin viewed the photograph - the critical consideration in determining the admissibility of the out-of-court identification - would be unaffected by any testimony the CI could have given regarding his motive for calling Korobellis or the delay in doing so. Therefore, we conclude that defendant failed to demonstrate any compelling reason to require the disclosure of the CI's identity.
We find defendant's next point attacking the adequacy of the judge's charge on cross-racial identification to be of insufficient merit to warrant any extensive discussion in this opinion. R. 2:11-3(e)(2). We add only these comments.
It is undisputed that the judge accurately read the model jury charge on cross-racial identification. Defendant argues, however, the judge should have modified the charge to include more of the socio-scientific reasons that supported adoption of the model charge in the first instance.
Our Supreme Court has noted,
[I]nsofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury. The process by which model jury charges are adopted in this State is comprehensive and thorough; our model jury charges are reviewed and refined by experienced jurists and lawyers. [State v. R.B., 183 N.J. 308, 325 (2005).]
Here, defendant's request to modify the model charge was not based upon some factual peculiarity in the case that required the judge to mold the instructions. Rather, his request was nothing more than an idiosyncratic preference for the inclusion of portions of the Court's holding in Cromedy. We reject this as a basis for modification of the model charge, and we conclude this argument provides no reason to reverse defendant's conviction.
Defendant next argues that we should remand the matter to the trial court for re-sentencing because the assistant prosecutor failed to state his reasons for not waiving the extended term of imprisonment that the judge ultimately imposed upon defendant. He contends that this is necessary to insure that the prosecutor's decision to seek and not waive the statutory extended term was not arbitrary and capricious.
Under the guidelines promulgated by the Attorney General following the Court's decisions in State v. Legares, 127 N.J. 20 (1992) and State v. Brimage, 153 N.J. 1 (1998), once the State seeks an extended term of imprisonment for repeat drug offenders, it must also "state on the record [its] reasons for refusing to waive an extended term." State v. Kirk, 145 N.J. 159, 169 (1996). Clearly, the assistant prosecutor in this case did not do that.
Defendant argues that there was no "indication . . . that [he] derived a substantial source of income from his narcotic activities," that the amount of cocaine involved was "minimal," and that his prior conviction resulted only in a probationary sentence. All this, he contends, supports the possibility that this case was an "appropriate one for the State to consider waiving the extended term application."
While it would have been preferable for the assistant prosecutor to clearly enunciate his reasons for not waiving the extended term of imprisonment, we view the failure to do so as harmless error. There were ample reasons to seek an extended term of imprisonment in this case, all of which militated against waiver. Defendant had recently pled guilty to a predicate drug offense; his conduct while on probation was entirely unsatisfactory and resulted in a violation within months of his sentencing; before he was arrested on that violation, he sold cocaine to an undercover police officer. In short, had the prosecutor actually spread these reasons on the record as a basis for not waiving the extended term of imprisonment, we would conclude the decision was not in any manner an arbitrary or capricious use of discretionary authority. Under these circumstances, we fail to see the purpose of any remand.
Lastly, defendant argues his sentences were excessive, that the court imposed a double punishment upon him by sentencing him to a consecutive term of imprisonment on the probation violation, and that the judge failed to properly consider the aggravating and mitigating factors in imposing sentence. We disagree with all of these contentions.
Our Supreme Court has explained
The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience. [State v. Megargel, 143 N.J. 484, 493 (1996).]
Thus, we will "not substitute [our] own judgment for that of the sentencing court." Id. at 493-94.
The trial judge was entirely justified in imposing a consecutive sentence on defendant's violation of probation. Such a sentence is expressly permitted by N.J.S.A. 2C:44-5(a). Moreover, these were two different crimes, distinct in time and place, thus, warranting consecutive sentences. State v. Baylass, 114 N.J. 169, 180 (1989).
We also find no basis to disturb the sentence because of any inadequacy regarding the trial judge's finding of three aggravating factors and no mitigating factors. The judge concluded that the aggravating factors existed because defendant had demonstrated a failure to respond to probation, had committed a second offense while on probation, and was living a lifestyle based upon violating the law. These conclusions were all supported by the trial record and defendant's pre-sentence report.
Neither of defendant's proposed mitigating factors - that he did not contemplate his conduct would cause serious harm and that his drug dependency excused his conduct - are appropriate for consideration in arriving at the sentence to be imposed. See State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994)(holding distribution of cocaine "causes and threatens serious harm"); See also State v. Ghertler, 114 N.J. 383, 390 (1989)(rejecting the claim that the defendant's drug dependency was a mitigating factor).
In short, we find no basis to conclude the trial judge mistakenly exercised his discretion in imposing the sentences that he did upon defendant.