On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-03-0276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2009
Before Judges Carchman and Sabatino.
Following an unsuccessful motion to suppress and an unsuccessful motion to compel the State to disclose the name of its confidential informant and then a jury trial, defendant Edwin Aquino was convicted of third-degree possession of a CDS, heroin, N.J.S.A. 2C:35-10a(1); and third-degree possession of a CDS with an intent to distribute, N.J.S.A. 2C:35-5a(3) and N.J.S.A. 2C:35-5b(3). At sentencing, the judge merged the two offenses and sentenced defendant to a term of four years in prison together with mandated license suspension and fees and penalties. Defendant appeals. We affirm the denial of the motion to suppress as well as the order denying disclosure of the name of the confidential informant, but because of what we deem to be a violation of State v. Bankston, 63 N.J. 263 (1973), we now reverse and remand for a new trial.
These are the relevant facts that were adduced at the various hearings and trial. On December 7, 2003, Officer James Mullin, a long-standing member of the New Brunswick Police Department's Narcotics Unit, and his partner, Officer Dean Dakin, a trained narcotics officer, were both in uniform, in a marked police car, patrolling the Remsen Avenue area in New Brunswick. While on patrol, Officer Mullin received information from a confidential informant that a Hispanic male wearing a gray coat, blue jeans, work boots and who had a "real thin beard" would be walking down Remsen Avenue from Nassau Street towards Lawrence Street and would be in possession of "at least a brick of heroin." The informant also stated that the man's name was "Orlando." According to Officer Mullin, he had personally used this informant before, and the informant's previous information had led to numerous drug arrests. The officers proceeded to Remsen Avenue, and approximately ten minutes later they observed two Hispanic males, one of whom matched the description given by the informant, walking on Remsen Avenue towards Lawrence Street. When the two individuals saw the police car, they turned down Lawrence Street and began running towards Lee Avenue. The officers followed the two men to an unoccupied house at 177 Lawrence Street. The two officers exited their car and approached the two individuals, at which point Officer Mullin observed defendant attempting to hide behind the other man, Javier Garcia. Defendant appeared to have a "brick of heroin and a couple of bundles" in his hand, which he then placed in his back pocket. The officers then asked defendant, who initially identified himself as "Orlando Arocho," what he had placed in his back pocket, to which he replied "I get high and I have just one bag." Officer Dakin asked if they could see the bag, and defendant replied that he had "a bundle of dope." The officers then confiscated what turned out to be seventy-eight bags of heroin from the defendant.
Officer Mullin, who had testified at the suppression hearing, did not testify at trial. The State proffered Officer Dakin who corroborated Officer Mullin's suppression testimony, and when Officer Dakin began to discuss the information he and his partner received from the confidential informant, defense counsel objected. The judge overruled the objection, and Officer Dakin stated:
Myself and my partner received information that a Hispanic male named Orlando Arocho was leaving Nassau Street in New Brunswick, was going to Lawrence Street in New Brunswick with at least a brick of heroin which is equal to fifty bags, fifty individual bags. . . . .
Um, the information that was given to us stated that the Hispanic male was wearing a gray coat, blue jeans, work boots and had a very thin beard.
The judge then provided the following limiting instruction:
Ladies and gentlemen, the information just testified to concerning a communication to the two officers is not being offered to you to prove the truth of the matters contained within those communications. It is only being offered to establish or to prove why it is that the officers went to the next location, to explain their actions as a result of hearing that information but not for the truth of the statements contained in that communication.
Officer Dakin again corroborated Officer Mullin's earlier statements and then added that as the officers approached defendant and Garcia, defendant was standing behind Garcia.
Officer Dakin observed what appeared to be heroin in defendant's left hand. As Officer Dakin approached the two males, defendant placed what was in his left hand in his back pocket.
Officer Dakin asked defendant his name, and he responded "Orlando Arocho." Officer Dakin stated that 177 Lawrence Street appeared abandoned and that while he questioned defendant, Officer Mullin questioned the other male. Garcia consented to being searched and was released when nothing was found. After observing what appeared to be heroin in defendant's hand, and defendant's furtive movement, Officer Dakin searched defendant. Officer Dakin found the seventy-eight bags of heroin on defendant, and placed defendant under arrest. The officers transported defendant to headquarters where he ...