December 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TURRELL SWEET A/K/A DEXTER BOMAR, TERRELL M. BOMONT, JEROME BROWN, RAHEEM CARTER, BOMAR DEXTER, JOHNNIE JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-11-1401.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2008
Before Judges Lisa and Alvarez.
Defendant, Turrell Sweet, was indicted along with a co-defendant, Dyeshia Sanders, for (1) third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); (2) third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and (3) second-degree possession of a CDS with intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1. The jury found defendant guilty of all three charges, and it acquitted his co-defendant of all three charges. Judge Perfilio merged counts one and two with count three, and sentenced defendant to eight years imprisonment with a four-year parole disqualifier.
Defendant argues on appeal:
THE TRIAL COURT SHOULD HAVE ALLOWED TIME TO ENTERTAIN A SEPARATE MOTION BY THE DEFENSE TO IDENTIFY A CONFIDENTIAL INFORMANT UNDER N.J.R.E. 516 AND IN FAILING TO DO SO ABUSED ITS DISCRETION AND ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.
THE DEFENDANT'S CONVICTION SHOULD BE REMANDED TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE DEFENDANT'S COUNSEL WAS SO INEFFECTIVE AS TO RESULT IN A FAILURE TO PROVIDE ADEQUATE COUNSEL UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I PAR. 10 OF THE NEW JERSEY STATE CONSTITUTION.
A. DEFENSE COUNSEL WAS INEFFECTIVE INSOFAR AS HE FAILED TO PRESENT AN EVIDENTIARY MOTION TO THE COURT TO PRODUCE A CONFIDENTIAL INFORMANT FOR CROSS-EXAMINATION.
B. DEFENSE COUNSEL WAS INEFFECTIVE INSOFAR AS HE FAILED TO ADEQUATELY ADVISE AND REPRESENT THE DEFENDANT WITH RESPECT TO THE SENTENCING CONSEQUENCES OF NOT TAKING A PLEA.
THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We reject these arguments and affirm.
According to his police report, Elizabeth police officer Christopher Flatley was on duty on August 6, 2004, and received information from a confidential informant (CI) that an individual was selling cocaine in Jefferson Park. The CI told Flatley that the individual was wearing all black clothing, selling vials of cocaine, and keeping the cocaine in the front of his pants. Flatley went to the park, and the CI pointed out the individual to whom he had referred. Flatley then left the park and returned about twenty-five minutes later. He parked his car and engaged in a surveillance. The CI was not present. Flatley observed the individual he had seen earlier, later identified as defendant. Flatley also observed a woman, later identified as co-defendant Sanders, who had been standing next to and speaking with defendant when Flatley previously observed him. Flatley observed an unidentified woman approach defendant. Defendant and the woman walked over to a park bench and sat down. Defendant reached in the front of his pants and handed the woman a small object, in return for which the woman handed defendant paper currency. The unidentified woman left the area. Defendant walked back to Sanders and handed her the currency.
Flatley called other police units in the area and requested that they detain defendant and co-defendant. They did so. A search of defendant resulted in the seizure of forty vials of cocaine from the front of his pants.
In his opening statement to the jury, defendant's attorney commented that Flatley's identification of defendant as an individual selling drugs in the park that day was flawed because defendant was not wearing all black clothing. The prosecutor then made a motion to prevent defendant from eliciting that description. The prosecutor pointed out to the court that in Flatley's report the officer never said he observed a person in all black clothing. The report merely stated that the CI rendered that description. The prosecutor further advised the court that she had no intention of eliciting information about the CI and, indeed, she was "staying away completely and entirely from the confidential informant portion of this case." Instead, as forecast in her opening statement, she intended to elicit only information of the actual observations made by Flatley, with no reference to any information having been supplied to him by anyone.
Based upon that position by the State, defense counsel moved for a mistrial, alleging a Brady*fn1 violation because the State failed to inform the defense that Flatley would not describe a man all in black. Upon reviewing the police report, the judge agreed with the prosecutor that Flatley never described the individual he observed as wearing all black clothing, but merely recorded in his report what the CI said the individual was wearing. Therefore, the judge denied defendant's mistrial motion. The judge also refused to conduct a hearing in the midst of the trial as to whether or not the State should be required to reveal the identity of the CI.
After the State presented its evidence, defendant testified in his own behalf. He denied selling drugs in the park that day, and he claimed that the police planted the forty vials of cocaine when they searched him.
Defendant's arguments in Points I and IIA are completely lacking in merit. There was no basis here for the State to reveal the identity of the CI. N.J.R.E. 516 establishes the informer privilege, unless the court finds that the identity of the CI has already been disclosed or if "disclosure of identity is essential to assure a fair determination of the issues." The first exception does not apply to this case. We find unpersuasive defendant's reliance on the second exception. A presumption exists for protecting the identity of a CI, which can be overcome only by a "strong showing of need" for disclosure. State v. Williams, 364 N.J. Super. 23, 39 (App. Div. 2003). An unsubstantiated allegation of need will not suffice, and where the CI plays only a marginal role, such as providing a tip, but does not participate in the criminal transaction, disclosure will not be required. State v. Milligan, 71 N.J. 373, 388-93 (1976).
In this case, Flatley received a tip, and the CI pointed out an individual at the park to Flatley consistent with that tip. However, the CI played no further role in the events. Flatley left the park and returned, unaccompanied by the CI. He established a surveillance and made his own personal observations, which formed the basis of the inculpatory evidence against defendant. In these circumstances, even if there was some discrepancy between the description initially given by the CI and the clothing defendant was actually wearing, it is of no consequence and does not provide any need, let alone a substantial need, for disclosure of the CI. Indeed, when the issue was raised with Judge Perfilio during the opening statements, the judge allowed the prosecutor to inquire of Flatley whether he responded to the scene based upon information received, see State v. Bankston, 63 N.J. 263 (1973), and allowed defense counsel to ask Flatley whether the information he received pertained to an individual wearing all black clothing. Thus, defendant was not prejudiced, and he was permitted to pursue his misidentification defense.
Accordingly, there was no basis for a mistrial, and the judge did not mistakenly exercise his discretion in denying defendant's mistrial motion.
Defendant asserts two bases of ineffective assistance of counsel. The first deals with trial counsel's failure to timely move for disclosure of the CI's identity. The second pertains to allegedly inadequate advice regarding the sentencing consequences of not accepting a plea offer. In order to establish ineffective assistance of counsel, a defendant must meet both prongs of the Strickland/Fritz*fn2 test, by demonstrating that his attorney's performance was deficient and that a reasonable probability exists that, but for the attorney's unprofessional errors, the result of the proceeding would have been different.
Ordinarily, ineffective assistance of counsel claims are not addressed on direct appeal and are more particularly suited for consideration in a post-conviction relief proceeding because they deal with allegations and evidence that lie outside the trial record. State v. Preciose, 129 N.J. 451, 459-60 (1992). That is the case with respect to defendant's second assertion of ineffective assistance, dealing with advice given in the plea bargaining process. Our rejection of defendant's argument on that issue, as embodied in Point IIB of his brief, is without prejudice to defendant's right to assert the claim in a post-conviction relief proceeding. State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
However, ineffective assistance claims that can be resolved solely by reference to the trial record may be considered on direct appeal. State v. DeAngelis, 281 N.J. Super. 256, 265-66 (App. Div. 1995); State v. McBride, 213 N.J. Super. 255, 272 (App. Div. 1986). Defendant's first contention, relating to disclosure of the CI, as embodied in Point IIA of his brief, presents such an issue, and we will address it. As we have explained, there was no basis upon which disclosure of the CI would have been required in this case. Therefore, failure to make a motion for disclosure, which would have been a meritless motion, did not constitute deficient attorney conduct. And, even if it did, the result of the proceeding would not have been different because the motion would have been denied. Therefore, neither Strickland/Fritz prong has been satisfied, and we reject defendant's ineffective assistance claim with respect to disclosure of the CI.
Finally, we consider defendant's argument that his sentence was excessive. We are satisfied from our review of the record that Judge Perfilio's findings regarding aggravating and mitigating factors were based upon competent and credible evidence, that the judge did not apply incorrectly the sentencing guidelines contained in the Code of Criminal Justice, and that the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).