February 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS A. SANTIAGO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-08-1529.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Parrillo and Ashrafi.
Tried by a jury, defendant Luis Santiago was convicted of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count one); fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count two); third-degree sale and/or disposition of a sawed-off shotgun, N.J.S.A. 2C:39-9b (count three); second-degree possession of a firearm while committing a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1 (count four); third-degree possession of an imitation controlled dangerous substance, N.J.S.A. 2C:35-11 (count five); third-degree distribution of a controlled dangerous substance, Methylenedioxymethamphetamine (MDMA) (also known as "ecstasy"), N.J.S.A. 2C:35-5a(1) (count six); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count seven). At sentencing, after denying the State's motion to impose an extended term on defendant as a persistent offender, N.J.S.A. 2C:44-3, the court merged count three into count four and imposed thereon a ten-year period of imprisonment with five years of parole ineligibility and a consecutive four-year term on count seven. The court also imposed five-year terms of imprisonment with two-and-one-half year periods of parole ineligibility on counts one, five, and six, to run concurrent with each other, but consecutive to count four. On count two, the court imposed an eighteen-month term of imprisonment with nine months of parole ineligibility, to run concurrent to count one and consecutive to count four. Accordingly, defendant's aggregate sentence is nineteen years with seven-and-one-half years of parole ineligibility. Defendant appeals, and we affirm.
According to the State's proofs, Detective Melissa Pera of the Bergen County Prosecutor's Office Narcotics Task Force, used a confidential informant (C.I.) to arrange a meeting with, and be introduced to, defendant. This meeting took place at around 6:50 p.m. on February 10, 2005, in the parking lot of the Chili's Restaurant in the Garden State Plaza shopping center off Route 17 in Paramus. When Pera arrived, the C.I. introduced her to defendant, who identified himself as Kodaphi. Pera then asked defendant about purchasing cocaine and a sawed-off shotgun. Defendant told Pera he had a "short" shotgun to sell for $350, along with a box of ammunition, and that the gun was small enough to conceal in her jacket or pants leg, or underneath a car seat. Defendant also told Pera he would sell her a half-ounce of cocaine for $600, and at some later time, an ounce of cocaine for $800.*fn1
Another meeting was arranged for February 22, 2005, at which time Pera arrived in the Chili's parking lot at about 6:00 p.m. and parked her unmarked patrol car next to the car in which defendant and the C.I. were seated. Both defendant and Pera exited their cars and walked behind one of the vehicles, where defendant handed Pera a bag of cocaine as well as a bag of marijuana for which defendant said there would be no charge. Next, defendant reached into the backseat of the car in which he arrived and retrieved a black plastic bag, which he then placed in the backseat of Pera's vehicle. When Pera opened the bag, she saw that it contained a sawed-off shotgun and ammunition. Pera then paid defendant $1000 and discussed a future purchase of more than a half-ounce of cocaine and ecstasy.*fn2
Pera met again with defendant and the C.I. on March 16, 2005, this time in the parking lot of the Empress Diner in Fair Lawn. Defendant told Pera that he had forgotten to bring her samples of ecstasy. The two repeated their earlier discussion of a purchase of more than one-half ounce of cocaine, and the meeting ended.
Nine days later, on March 25, 2005, Pera, defendant, and the C.I. met again at the same location. On this occasion, however, Pera was accompanied by another undercover detective, Myra Pilipski, of the Rutherford Police Department. Pera parked her car next to the one containing defendant and the C.I. She and Pilipski then got into the backseat of the other car. Pera introduced Pilipski as her friend and then discussed drugs with defendant. Defendant gave Pera four tablets packaged in plastic, which he said were ecstasy pills.*fn3 Pera did not pay for the pills because they were a sample. She and defendant then discussed how much it would cost her to buy ecstasy pills; defendant told her that he paid $5.75 per tablet and that she would have to pay him more than that. The two also discussed another drug purchase.
Another meeting was arranged for May 4, 2005 at the Chili's parking lot. Prior to the meeting, Pera and other members of the Narcotics Task Force decided to arrest defendant after the planned drug transaction. Arrangements were made to have the C.I. leave the site of the anticipated encounter between Pera and defendant prior to the transaction and arrest.
At around 5:00 p.m., Pera arrived at the parking lot and parked her car near the restaurant. She saw defendant and the C.I. arrive in a car and walked over to them, at which point, as prearranged, the C.I. left to go into the restaurant. Pera and defendant then entered her car, where defendant gave her a bag of 40 ecstasy tablets that he described as "very good[,]" and she gave him $500 in exchange.*fn4 The meeting was recorded.*fn5
When Pera and defendant exited the car and started walking toward Chili's, Pera gave the prearranged arrest signal to backup Officers Elliott Cookson and Don Ingrasselino of the Bergen County Prosecutor's Office, who were wearing their badges around their necks, a vest and a jacket labeled "police." Cookson then drove toward defendant and Pera and stopped them, at which point Ingrasselino got out of the car and said, "Police." Defendant ran toward Chili's, but fell to the ground when Cookson caught him. Defendant struck at the officers, flailing his arms and kicking with his legs. Defendant was ultimately arrested and handcuffed. Pera was also "arrested" and handcuffed to protect the identity of the C.I.
On the basis of this evidence, the jury convicted defendant of the various drug and weapons offenses charged.
On appeal, defendant raises the following issue:
I. DETECTIVE PERA'S TESTIMONY THAT SHE DEVELOPED INFORMATION ABOUT DEFENDANT THROUGH THE CONFIDENTIAL INFORMANT, AND THE PROSECUTOR'S IMPERMISSIBLE CHARACTERIZATION OF DEFENDANT IN SUMMATION AS "NOT A NOVICE" IN DRUG SALES DENIED DEFENDANT A FAIR TRIAL. (Not raised below)
A. Detective Pera's Testimony Conveyed to the Jury That Defendant Was a Known Drug Dealer Prior to the Instant Charges.
B. The Prosecutor Intensified the Prejudice to Defendant in His Summation, by Arguing Repeatedly That Defendant Was "Not a Novice" in the Drug Dealing Milieu.
II. THE COURT'S ERRONEOUS RULINGS REGARDING THE CONFIDENTIAL INFORMANT DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE, AND THE PROSECUTOR'S COMMENTS IN SUMMATION COUPLED WITH THE JURY INSTRUCTION RELATING TO THE CONFIDENTIAL INFORMANT MISLED THE JURY AND DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
III. THE PROSECUTOR MISSTATED THE LAW IN HIS SUMMATION, THUS DEPRIVING THE DEFENDANT OF A FAIR TRIAL. U.S. Const., AMENDS. V, VI, XIV; N.J. CONST., ART. I, PARA.
10. (Not Raised Below)
IV. THE COURT DENIED DEFENDANT HIS RIGHT TO PRESENT INFORMATION IN MITIGATION OF PUNISHMENT, AND IMPOSED EXCESSIVE BASE SENTENCES AND UNWARRANTED PERIODS OF PAROLE INELIGIBILITY.
A. The Case Must Be Remanded to Accord Defendant His Right to Present Information in Mitigation of Punishment.
B. The Court's Imposition of Five Separate Sentences with Maximum Base Terms and Maximum Parole Ineligibility Periods Was Excessive and Based on a Flawed Analysis of Aggravating and Mitigating Factors.
C. The Sentence on Count Seven Should Be Concurrent with the Other Sentences.
Defendant challenges Detective Pera's testimony that she developed information about defendant from the non-testifying C.I. as impermissible hearsay, violative of his right of confrontation and State v. Bankston, 63 N.J. 263, 268 (1973).
He contends that such testimony suggested defendant's involvement in prior crimes, an inference later reinforced by the prosecutor's reference in summation that defendant was "not a novice." Because this issue is raised for the first time on appeal, we review it under the plain error standard. R. 2:10-2. We discern no error, much less reversible error.
The Bankston rule is not violated "when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Bankston, supra, 63 N.J. at 268 (internal citation omitted). Such testimony is deemed admissible "to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. However, when an officer becomes more specific and repeats what some other person told him concerning a crime, the hearsay rule and the confrontation clause are violated. Ibid. See also State v. Branch, 182 N.J. 338, 352 (2005); State v. Vandeweaghe, 177 N.J. 229, 241 (2003).
Here, Detective Pera simply testified that she developed information about defendant, which is no different, in our view, from the "upon information received" testimony deemed acceptable in Bankston. Both comments serve to explain law enforcement's presence and subsequent conduct with respect to a suspect.
Here, Pera's reference to "information developed" was completely devoid of any detail concerning what the C.I. told her about defendant and merely explained how her initial meeting with defendant had been arranged, as well as the C.I.'s role therein. The fleeting comments did not give rise to any necessary inference that the C.I. implicated defendant in the crimes charged. Indeed, that proof was supplied by defendant's own subsequent action. Nor did the comment implicate defendant in prior criminal conduct, as he now argues for the first time.
We also find nothing improper in the prosecutor's remark in summation that defendant was not a novice drug dealer. That comment was in direct response to defense counsel's arguments in both opening and closing statements that defendant was inexperienced and not a savvy dealer because he had given Pera the name of his supplier as well as fake sample pills. The prosecutor's remarks in retort focused entirely on the series of drug transactions in issue. Pointing out that defendant had sold drugs to Pera three times within two-and-one-half months and had discussed prices for drugs, the prosecutor then asked the jurors whether "three separate transactions sounded novice?" As noted, no objection was voiced to this comment, as it was clearly directed to the present criminal episode rather than any past drug dealing.
Defendant next contends the court's rulings regarding disclosure of the C.I.'s identity deprived him of a fair trial. We disagree.
At a pre-trial hearing, defendant sought disclosure of the C.I.'s identity or, in the alternative, discovery of information on the C.I.'s pending charges,*fn6 and to allow cross-examination of Pera on these subjects. The defense, however, acknowledged knowing the identity of the C.I. through investigation and, quite obviously, from the very circumstances of the encounters themselves, and so was actually seeking confirmation of the C.I.'s identity. The court denied the motion for disclosure, relying on N.J.R.E. 516(a):
With respect to subsection A the Defense argues that they already know the identity of the confidential informant and therefore seeks the State to confirm that identity. However, I don't find that that satisfies subsection A of the evidence rule in question. The issue is to whether the information has already been otherwise disclosed and there's no indication or evidence before me that the State or the confidential informant himself had otherwise previously disclosed his identity. The fact that the Defense feels that they have figured it out I don't think satisfies the disclosure prong of the evidence rule.
The court also denied the motion to compel discovery, for the same reasons it denied the motion to disclose the C.I.'s identity, including: lack of the C.I.'s critical involvement in the criminal episode; no legal basis for compelling disclosure of the information; and the fact that revealing information sought through discovery, including even a redacted judgment of conviction, could enable the defense to confirm the identity of the person suspected of being the confidential informant. Nevertheless, the court allowed Pera to testify on cross-examination that the C.I. had charges against him; was working with the prosecutor's office to reduce his sentence; and that she did not know the disposition of the ultimate charges. Moreover, the defense also elicited testimony that some C.I.s are paid, and, in Detective Pera's experience, most C.I.s were accused of drug crimes and sought to reduce their sentencing exposure by cooperating with the State.
A C.I.'s identity is privileged and protected under N.J.R.E. 516, which provides:
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that
(a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
There is a strong public policy and law enforcement interest related to such a privilege, namely encouraging "citizens to perform their civic duty to communicate knowledge of wrongdoing to law enforcement officials" without fear of reprisals. Grodjesk v. Faghani, 104 N.J. 89, 97 (1986). In Cashen v. Spann, the Court noted that there is a "presumption" protecting the informer's privilege given the strong law enforcement concerns. 77 N.J. 138, 142 (1978); see also State v. Williams, 364 N.J. Super. 23, 38 (App. Div. 2003). Accordingly, the presumption protecting a CI's identity will only be overcome by a "strong showing of need" for disclosure by the defendant. Id. at 39 (quoting State v. Florez, 134 N.J. 570, 578 (1994)). "The appropriate standard for reviewing the denial of a motion for disclosure is to determine whether the trial court abused its discretion after weighing the competing considerations" of the defendant's need for disclosure on the one hand, and, on the other, the public interest in protecting the flow of information. State v. Milligan, 71 N.J. 373, 384 (1976); see also Roviaro v. United States, 353 U.S. 53, 56, 61 n.9, 77 S.Ct. 623, 625, 628 n.9, 1 L.Ed. 2d 639, 642, 645 n.9 (1957); Williams, supra, 364 N.J. Super. at 40.
In determining whether disclosure of a C.I.'s identity is appropriate, the court must look to "the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 629, 1 L.Ed. 2d at 646. Courts must "weigh and balance the competing considerations on a case-by-case basis." Florez, supra, 134 N.J. at 579. While a court "must remain sensitive to the legitimate needs of defendants and to fundamental principles of fairness," it "should not honor frivolous demands for information on unsubstantiated allegations of need." Milligan, supra, 71 N.J. at 393. "Under most circumstances,... an informer's identity will be kept secret and will not be revealed for insignificant or transient reasons." State v. Foreshaw, 245 N.J. Super. 166, 181 (App. Div.), certif. denied, 126 N.J. 327 (1991); see also Milligan, supra, 71 N.J. at 392 ("In assessing the above factors, we are cognizant that free and unwarranted access to the identity of informers will effectively eliminate the informer's privilege.").
New Jersey courts have refused to disclose the identity of the C.I. where the defendant's argument is based on mere speculation that the informer might exculpate the defendant on the issue of the identification of the defendant. State v. Williams, 356 N.J. Super. 599, 605-06 (App. Div. 2003); see also Milligan, supra, 71 N.J. at 391 ("Most courts have found that the possibility that an informer's testimony might establish a defense of mistaken identity is too speculative to warrant disclosure."); State v. Booker, 86 N.J. Super. 175, 179 (App. Div. 1965). Accordingly, "[s]omething more than speculation should be required of a defendant before the court overrules an informer's privilege of nondisclosure." Milligan, supra, 71 N.J. at 393.
Here, the defendant has made no showing, much less a strong showing, how disclosure of the C.I.'s identity would be helpful to his defense. Although defendant generally contends disclosure was "essential to assure a fair defense" - presumably to show that the C.I., and not defendant, orchestrated the sale of the sawed-off shotgun*fn7 - the record in this case is entirely devoid of any proof that the C.I.'s involvement in the criminal episode extended beyond simply arranging and being present at the five meetings between defendant and Pera, four of which involved the sale of drugs and/or a gun. Indeed, the proofs demonstrate that while present during the four transactions, the C.I. was involved in none of them. Rather, Pera and defendant negotiated the details of the transactions and directly engaged in the exchange of drugs and a gun for cash. In fact, the final transaction between the two was recorded and played for the jury.
We perceive no need for the disclosure of the information sought under present circumstances where the C.I. neither testifies nor provides inculpatory evidence against defendant. On this score, the cases cited by defendant allowed cross-examination of a prosecution witness about the pendency of criminal charges and are therefore completely inapposite. See e.g., State v. Landano, 271 N.J. Super. 1, 40-41 (App. Div.), certif. denied, 137 N.J. 164 (1994); State v. Baker, 133 N.J. Super. 398, 402 (App. Div. 1975). In those cases, disclosure was necessary to permit effective cross-examination for bias and credibility purposes. These determinations would be "significantly enhanced" if, for instance, the jury knew that the witness had received favorable consideration from the State for his testimony. State v. Knight, 145 N.J. 233, 243-48 (1996). Here, as noted, the C.I.'s credibility was not in issue because he did not testify at trial and none of the information he provided was used to incriminate defendant. Significantly, defendant cites no authority compelling the State to provide the defense with information on pending charges against a C.I. whose identity has been deemed privileged by a court. Indeed, if it deemed relevant the C.I.'s motive for naming defendant, the defense, who acknowledged knowing the assumed identity of the C.I. and possessing the C.I.'s judgment of conviction, was certainly free to call the alleged C.I. as a witness or to cross-examine Detective Pera with a redacted version of the judgment of conviction.*fn8
Even assuming the C.I.'s involvement to be more than the proofs show, the mere fact that the C.I. actively participated in the controlled drug sales does not require automatic disclosure. See State v. Brown, 170 N.J. 138, 148 (2001) (holding that the trial court "properly ruled that the confidential police informant's identity should not be revealed"[,] where the C.I. had cooperated with police and carried out two separate controlled buys from the defendants). Under the circumstances, the trial court did not abuse its discretion in denying confirmation of the C.I.'s identity or disclosure of information concerning the C.I.'s pending criminal charges.
Defendant also challenges, as plain error, R. 2:10-2, the following comments by the prosecutor in summation:
I submit to you, as I stated in my opening statement, the proof in this case is overwhelming - is overwhelming by the physical evidence and by the direct credible testimony of the Detective Pera.
I submit to you if you find her testimony credible, then you find detec -Mr. Santiago guilty on the first six counts, and I submit to you she was credible. Because what do we do? We had the opportunity to hear her come in, hear her testify -
And how it is also credible? By the corroboration of the evidence. Seems to me, as I indicated, Defense counsel saying, well, he may have sold some things but not the gun. Well, I submit to you you can't have it halfway, and I submit to you the proof is overwhelming in this case.
Defendant essentially argues that the prosecutor misstated the law as to the jurors' role and the State's burden of proof. We discern no error, much less plain error, in these remarks.
The remarks concerned Detective Pera's credibility and related to the jury the very same criteria for assessing such credibility as the court later instructed. The court's charge also clearly and correctly instructed on the State's burden of proof and nothing in the prosecutor's summation suggested to the contrary. The prosecutor's comment about defendant's "split" defense - that is, the concession that he sold drugs and the denial that he sold the shotgun - simply reiterated defense counsel's asserted position and did not serve to dilute the State's burden of proof. We consider defendant's argument on this point devoid of any merit. R. 2:11-3(e)(2).
Lastly, defendant challenges his sentence as excessive and claims the court: (i) precluded him from presenting mitigation evidence at sentencing; (ii) erred in assessing the aggravating and mitigating factors and in imposing maximum base terms and parole ineligibility; and (iii) improperly imposed a consecutive sentence on count seven. We disagree.
At the outset, we note that the court denied the State's motion to sentence defendant as a persistent offender, N.J.S.A. 2C:44-3. Moreover, a period of parole ineligibility was mandated on count three, N.J.S.A. 2C:39-9b, and the sentence on count four was required to run consecutive to any term imposed for a violation of N.J.S.A. 2C:35-5. See N.J.S.A. 2C:39-4.1(d).
That said, we find no abuse of discretion in the sentence imposed. Although defendant claims the court improperly restricted the "mitigation" testimony of his former employer, the record reveals Rick Bagney was afforded a meaningful opportunity to speak and conveyed to the sentencing court that
(i) there was an "incredible amount" of pressure placed on defendant by a co-worker; (ii) that he would hire defendant back "in a heartbeat"; (iii) that his customers wanted defendant to come back to work; (iv) he had not replaced defendant because nobody could do the job; and (v) defendant was a wonderful person. Whatever limitation was placed by the court was well within its broad discretion and did not detract from the substantive content of the former employer's remarks.
We also find supporting evidence in defendant's criminal history for the application of aggravating factors 3, 6 and 9, N.J.S.A. 2C:44-1(a)(3), (6) and (9). We also find aggravating factor 11, N.J.S.A. 2C:44-1(a)(11), was appropriately applied to the third- and fourth-degree crimes inasmuch as the imposition of a fine or penalty would be seen as a cost of doing business by a defendant involved in a continuing scheme aimed at selling drugs and guns for profit. The absence of mitigating factors was also explained since whatever mental pressure felt by defendant did not emanate from a victim, N.J.S.A. 2C:44-1(b)(3); see also State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986), nor stem from any proven chronic psychological abuse. N.J.S.A. 2C:44-1(b)(4); see also State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002).
Finally, we find that the consecutive four-year term imposed on count seven for resisting arrest is proper under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The judge reasoned that the resisting arrest offense arose from an act separate from defendant's sale of contraband and involved different victims. Defendant's actions of running from the police and then kicking them in an attempt to avoid arrest involved a disregard for the law separate and apart from the laws rendering certain guns and drugs illegal. State v. Espino, 264 N.J. Super. 62, 75 (App. Div. 1993) (public interest in deterring assaults against law enforcement officers warranted consecutive sentences on escape and assault offenses).