May 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH BELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0481.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2008
Before Judges Parrillo and Gilroy.
Tried to a jury, defendant Keith Bell was convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count 1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count 2); and third-degree possession of heroin with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count 3).*fn1
The convictions on counts 1 and 2 were merged with the conviction on count 3 for which defendant received a mandatory extended term as a repeat drug offender, N.J.S.A. 2C:43-6(f), of ten years with a five-year parole bar. Defendant was later re-sentenced to the same term without consideration of aggravating factor #11, N.J.S.A. 2C:44-1(a), since a non-custodial term was never a sentencing option. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
Defendant was apprehended after police surveillance observed him engaging in a suspected drug transaction. According to the State's proofs, around 6:00 p.m. on November 12, 2004, Officer Carlos Lugo, responding to numerous citizen complaints, set up surveillance in the area of Communipaw, Siedler and Clinton Avenues in Jersey City, which was within 1000 feet of a public school. Lugo was the sole surveillance officer but was accompanied by two perimeter units. Although the exact surveillance vantage point was not disclosed, Lugo positioned himself within fifty yards of 62 Siedler Avenue, equipped with high-powered binoculars. Although dark outside, there was street lighting in the target area and weather conditions were clear. Lugo's visibility was unobstructed and his elevation higher than any other vehicle.
At around 6:30 p.m., Lugo observed a black male, John McCaskel, enter the premises at 62 Siedler Avenue, then quickly exit and walk back north on Siedler toward Communipaw. Based on his training and experience, his observations and the information he had been given, Lugo believed a drug transaction had just taken place. He radioed McCaskel's description to his perimeter units, who then, upon further investigation, apprehended the suspect, who was in possession of one glassine bag of heroin with a "President" logo on it.
Less than ten minutes later, Lugo observed three black males, including defendant, exit 62 Siedler Avenue and stand out front. Just a few minutes later, defendant crossed the street, walked south to around 51 Siedler, approached a fence and retrieved a black bag. Defendant then removed an object from his right pocket and placed it in the bag, before putting the bag back down. Afterwards, defendant crossed back and rejoined the other two men, who then went back inside 62 Siedler and did not reappear for the duration of Lugo's surveillance.
While defendant stood alone outside, another man, Roger Williams, approached him and the two engaged in a brief conversation. Using his binoculars, Lugo observed Williams hand defendant green paper currency and, in exchange, defendant removed an object from his right front jacket pocket and gave it to Williams. At this time, Lugo broadcast Williams' description to his perimeter units, who, upon further questioning, apprehended the second suspect and recovered one glassine bag of heroin stamped "Daily News" from his mouth.
After being notified that both McCaskel and Williams were apprehended with suspected controlled dangerous substances, Lugo instructed the perimeter unit to arrest defendant and directed another officer to search for the black bag that defendant handled only moments earlier. When ultimately recovered, the black bag contained twenty-four glassine bags of heroin, fourteen or fifteen with the "Daily News" logo and the remainder with a "Red Light" logo. Upon his arrest, defendant had no controlled dangerous substance on his person.
On appeal, defendant raises two issues for our consideration:
I. THE TRIAL COURT'S RULING THAT PRECLUDED DEFENSE COUNSEL FROM QUESTIONING THE POLICE OFFICER ABOUT THE DETAILS OF HIS SURVEILLANCE LOCATION DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO CONFRONTATION OF WITNESSES AGAINST HIM AND THE RIGHT TO A FAIR TRIAL.
U.S. CONST. AMEND. VI & XIV; N.J. CONST. (1947) ART. I, PAR. 10.
II. BECAUSE THE TRIAL COURT ERRONEOUSLY APPLIED AGGRAVATING FACTORS, FAILED TO FIND APPLICABLE MITIGATING FACTORS, AND IMPOSED A SENTENCE THAT SHOCKS THE JUDICIAL CONSCIENCE, THE TEN YEAR SENTENCE WITH A FIVE YEAR PAROLE DISQUALIFIER [THE MAXIMUM EXTENDED TERM FOR A THIRD DEGREE OFFENSE] MUST BE REDUCED.
We address these issues in the order presented.
Defendant argues that the trial court's failure to disclose the officer's exact surveillance location, and its subsequent restriction on defense counsel's ability to cross-examine on that subject, violated his Sixth Amendment right to confrontation. The issue was first raised on defense cross-examination of Officer Lugo, when the State objected to a question about whether Lugo was positioned in a vehicle or house, citing citizen safety concerns. Unfortunately, the resulting sidebar conference, at which the court ruled, was unrecorded, and defendant never lodged a contemporaneous objection nor earlier sought in limine disclosure of the precise surveillance location, thus precluding the type of judicial in camera inquiry contemplated by State v. Zenquis, 131 N.J. 84, 88 (1993) and State v. Garcia, 131 N.J. 67, 77-78 (1993).
Briefly, by way of background, the privilege against disclosure is codified at N.J.S.A. 2A:84A-27, which states in pertinent part:
No person shall disclose official information of this State or of the United States (a) if disclosure is forbidden by or pursuant to any Act of Congress or of this State, or (b) if the judge finds that disclosure of the information in the action will be harmful to the interests of the public.
Our rules of evidence also recognize "a 'surveillance location privilege' that permits the State, in appropriate circumstances, to conceal information about the location from which law-enforcement personnel . . . observed alleged criminal activities." Zenquis, supra, 131 N.J. at 86. See also Garcia, supra, 131 N.J. at 73; N.J.R.E. 515. This privilege is grounded on the notion that "in certain instances, a defendant's right to gain access to information not vital to the defense must yield to society's interests in effective law enforcement and in encouraging citizens to cooperate with the police." Garcia, supra, 131 N.J. at 76-77. To establish the privilege, the State must first: demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property. The trial court should hold an [N.J.R.E. 104(a)] hearing at which the State may attempt to justify application of the privilege. At that hearing the court should make a sealed record sufficiently detailed to facilitate appellate review. Defense counsel shall not attend the hearing. [Id. at 78.]
See also Zenquis, supra, 131 N.J. at 88.
If the State meets this preliminary burden, the defendant must make a "substantial showing of need" to defeat the State's proper assertion of the privilege. Garcia, supra, 131 N.J. at 81; Zenquis, supra, 131 N.J. at 88. In determining whether the defendant has demonstrated "substantial need," the court should balance the defendant's need for the information with the public's interest in non-disclosure. Garcia, supra, 131 N.J. at 80-81. In the balancing process, the trial court must consider the "crime charged, the possible defenses, the possible significance [of the privileged information,] and other relevant factors." Id. at 80 (alteration in original) (quoting Grodjesk v. Faghani, 104 N.J. 89, 99 (1986)). See also Zenquis, supra, 131 N.J. at 88.
Here, we may assume the trial judge credited the State's expressed safety concerns, given the numerous citizen complaints of drug trafficking in the area, and the apparent need for ongoing surveillance in the vicinity. See State v. Ribalta, 277 N.J. Super. 277, 289 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). But even absent this assumption, disclosure of the exact surveillance site was, in our view, not material and would have been of only marginal assistance to defendant. In fact, defendant already possessed significant information about the officer's surveillance location and general vantage point, weather and lighting conditions, and lack of obstruction. Contrary to defendant's assertion, counsel was able to fully explore the issue on cross-examination, restricted only from inquiring into the officer's exact location within a vehicle or other structure, the precise elevation of the surveillance, and the angle at which the events were viewed.
For instance, defense counsel was given substantial leeway in eliciting information about visibility, lighting conditions, distance, elevation, whether the officer looked through a window, whether the window was tinted, which side of the street he was on, and which avenue he was closest to. In this regard, the jury was informed that Lugo was positioned toward the east side of the street, closest to Communipaw Avenue, on a residential block with an auto part store located on the northwest corner, and a mechanic garage across the street. The homes in the surrounding area had no driveways, and there were vehicles parked on both sides of the street. When he made his observations, Lugo was alone and was looking through a window without tinting. Lugo viewed the transaction from a distance of about fifty yards; his visibility was clear; he used high-powered binoculars on occasion; and he was somewhat elevated because he was higher than any other vehicle. Thus, the record discloses sufficient opportunity to cross-examine Officer Lugo even without inquiring about the exact surveillance location. Defendant has simply failed to show how the concealment of the precise surveillance location deprived him of effective cross-examination or otherwise prevented a fair determination of his case.
Just as significant, there was substantial corroboration of Officer Lugo's observations, rendering the undisclosed information of only peripheral value. State v. Williams, 239 N.J. Super. 620, 634 (App. Div. 1990). On this score, Lugo was able to pinpoint the exact location of a large stash of heroin -- the black bag that Lugo had earlier seen defendant handling. It is highly unlikely that disclosure of the precise surveillance site would have shown that Officer Lugo could not have seen what he claimed to have seen. Indeed, it is difficult to imagine what use, if any, defendant could have made of the exact surveillance site. His counsel's cross-examination was effective and penetrating. Accordingly, we find no abuse of the trial court's discretion in deciding not to disclose the precise official surveillance site.
Defendant concedes his eligibility for mandatory extended term sentencing as a repeat drug offender, N.J.S.A. 2C:43-6(f), but argues the maximum ten year sentence with a five-year parole bar is manifestly excessive because the court erroneously applied aggravating factors and failed to consider mitigating ones. We disagree.
The court properly found that a mandatory extended term was warranted because defendant had "[p]rior convictions include[ing] dispensing, distribution within a school zone in '93 . . . [and] [i]n '95, once again, for the same charge." The court then went on to balance the aggravating and mitigating factors, finding aggravating factors (3), (6) and (9) applicable given the fact that defendant possessed and sold heroin solely for monetary gain; did not respond to probationary treatment afforded in 1993 nor was deterred by the custodial term received in 1995; and was involved in the sale of narcotics since 1993. And, contrary to defendant's argument, the judge did consider the mitigating factors raised by defendant but eventually found insufficient proof of excessive hardship and properly discounted defendant's crime-free interregnum from 1999 to 2004, given his resumption of criminality in late 2004, as evidenced by his present conviction. Thus, on balance, the weight of the aggravating factors supports imposition of the maximum extended term and we therefore find no warrant for interference with the sentence imposed.