On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-09-1294.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2008
Before Judges Wefing, Parker and Yannotti.
On leave granted, the State appeals from an order entered on March 18, 2008 requiring it to disclose the identity of a confidential informant. We reverse and remand.
The facts relevant to this appeal are as follows. On February 4, 2007, Task Force Officer (TFO) Sean Dolphin met with a confidential informant (CI), who said that a black male named "Phill" was selling marijuana from his apartment at 111 East Main Street in Maple Shade. The CI provided a description of Phill and stated that he/she had purchased marijuana from Phill on several occasions. The CI also gave detailed information about the apartment.
On February 15, 2007, the CI was to introduce TFO Rackauckas to Phill. During a phone conversation overheard by the officer, the man on the other end of the line identified himself as "Aaron." Aaron is Phill's brother. The CI told Aaron that he/she had a friend who needed "something." After the phone call, the CI took the officer to the apartment at 111 East Main Street, where they met and had a conversation with Aaron about the purchase of a quarter ounce of marijuana for $60. After the transaction was completed, the TFO and CI left. Thereafter, defendant was photographed by undercover officers as he left 111 East Main Street. The photos were shown to the TFO, who positively identified defendant as the individual who sold him the marijuana.
During discovery, defendant sought the identity of the CI and the State refused. Defendant then moved before the court to have the CI identified and the trial court granted the motion, stating:
At oral argument this afternoon, I inquired of defense counsel what was the need to have the confidential informant come forward, and the position taken by the defendant is that whoever was in that apartment selling marijuana to the undercover officer was not Aaron Surles. Despite whatever name was used by the confidential informant on the telephone, whatever name was used when the confidential informant went into the apartment, it was not Aaron Surles. . . .
But the problem in this case is, how does a defendant defend a charge when the police officer presumably who was the undercover officer is going to come in and say, yes, that's the man I brought [sic] the drugs from, and there may well be another witness who will be able to say, no, that's not the guy. It looks a little bit like him but it's not him.
And in this case, of course, is the fact that Mr. Aaron Surles has a brother Phillip Surles who apparently was the person referred to initially by the confidential informant when he originally went down to the Maple Shade Police Department. That is one -- you know, it's always -- you know, the problem always is proving a negative, and how do you prove that it's not you? Presumably in this case, the State has -- of course, it's the State's privilege and they're not waiving it -- presumably they have no intention of calling the confidential informant in their case in chief to get on the stand and say, yes, that is the man.
But if, in fact, he is able to say that this is not the person in the apartment from whom we bought drugs and identification is an issue in this case, I think that this is one of those few cases where it is necessary for the defendant -- it is necessary for the State to reveal the identity of the confidential informant, so that he or she can be interviewed by the defendant's attorney or investigator to further nail down this identity issue.
The State was granted leave to appeal and argues that the trial court erred in granting defendant's motion to disclose the identity of the confidential informant.
The legislative policy of New Jersey favors protecting the identity of confidential informants in criminal cases, in recognition of their indispensable role in effective enforcement of the law. State v. Dolce, 41 N.J. 422 (1964); State v. Postorino, 253 N.J. Super. 98 (App. Div. 1991). The statutory ...