August 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CAMILO L. LOPEZ A/K/A CAMILO LOPEZ ALVAREZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No.06-08-1395.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 13, 2010
Before Judges Axelrad and Espinosa.
Defendant appeals from his sentence and convictions for murder, N.J.S.A. 2C:11-3(a)(1) and (2), and felony murder, N.J.S.A. 2C:11-3(a)(3). We affirm.
Robert Hayes, a college student, was working as a parking lot attendant in Hoboken when he was shot and killed in July 1988. The crime remained unsolved until 2005.
In October 2005, a confidential informant (CI) told a State Police Detective that he had overheard a conversation among three Hispanic males claiming to have knowledge concerning the murder of a parking lot attendant in the early 90s. Detective Jeffrey Kronenfeld of the State Police Major Crimes Unit met with the CI two or three times. The CI identified the three Hispanic males as George Quintero, Alejandro Carral and Willie Cortez. In the conversation that was overheard, none of the participants stated that they were involved in the murder; they merely spoke about a homicide in the early 90s in which a parking attendant was killed. Although Detective Kronenfeld asked the CI for specifics of what he had overheard, he received no further information from him and believed that the CI did not have any specific information to give him.
Investigating further, Detective Kronenfeld learned from the Hudson County Prosecutor's Office about the unsolved murder of Hayes and thereafter interviewed each of the men named by the CI.
Willie Cortez told him that he had worked at the parking lot and had allowed people to take cars for joyrides in exchange for money. He was in jail in Florida at the time of Hayes's murder but had heard that Quintero and another man had gone to the parking lot to steal cars and that someone was shot. He did not know the other man but had heard that his father owned a liquor store in Union City.
George Quintero was interviewed at his lawyer's office. In his first interview, he denied being at the parking lot on the night of Hayes's murder and stated that he had heard that Alejandro Carral had gone to the Advanced Parking lot in Hoboken to steal cars with two other men, "Ismo" and "Camilo." Quintero said he had heard that Camilo approached the parking lot attendant, they argued, and Camilo shot and killed the attendant. Quintero stated that he believed that Ismo's father owned a liquor store.
In his first interview, Alejandro Carral also admitted hearing about the murder but denied being at the scene of the murder.
Through additional information received from Carral and some record checks, Detective Kronenfeld was able to identify "Ismo" as Ismael Hernandez and interviewed him. Hernandez admitted that he had been at the scene with Quintero, Carral and "Camilo," whom he stated was the shooter. Hernandez did not know Camilo's last name, but, when shown a photograph of defendant Camilo Lopez, identified him as "Camilo."
Detective Kronenfeld interviewed Quintero a second time and advised him of the additional information he had received. Quintero admitted being present at the parking lot with "Camilo" and Carral. He stated that he and Carral were approximately one-half block away from the attendant's booth at the time of the shooting. He did not know "Camilo's" last name but also identified defendant's photograph as the man he had described.
Both Hernandez and Quintero testified at defendant's trial and identified him as the person who shot and killed Hayes.
Hernandez testified that he and his friends, usually Quintero and Carral, "borrowed" cars from the parking lot when Cortez was working. Approximately one week before Hayes's murder, Quintero, Carral and defendant discussed that they had somebody in New York who was going to buy the cars and so, it was agreed that when they went to the parking lot on July 29, they would steal the cars and sell them to "some Dominican guys up in Washington Heights." They assumed that Cortez would be working at the parking lot. Hernandez testified that when they arrived at the lot, defendant got out of the car and approached the attendant. Hernandez heard a shot and saw Lopez run back to the car holding a gun.
Quintero testified that he had stolen cars with Carral and Hernandez and sold them in New York prior to the shooting as often as twice a week but had not stolen any from the parking lot in Hoboken prior to Hayes's murder. On that night, defendant drove them to Hoboken. Sitting in the back seat, he heard Carral saying something to defendant about "the guy, so we're leaving." Quintero stated that defendant said "[N]o, I'll go inside and I'll get a car, you guys wait in the car, I'll be right back." Quintero testified that defendant went to the parking lot and in a matter of seconds, "all you heard was gunshots." Defendant returned to the car and they left. Quintero testified that defendant and Carral argued in the car and "he was telling [Carral] if anybody, anybody says anything about this he was going to come and get everybody, like, you know, your family, or mother, your sister, your brother." Quintero stated that this was the reason that he did not come forward after the shooting.
Defendant was indicted in a two count indictment for first-degree purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one) and felony murder, N.J.S.A. 2C:11-3(a)(3). His motion for the disclosure of the identity of the CI was denied prior to trial. The jury convicted defendant on both counts. The trial court merged the counts at sentencing and imposed a sentence of fifty years with a thirty year period of parole ineligibility and appropriate fines and penalties.
In his appeal, defendant presents the following issues:
POINT I BOTH JUDGES BELOW ERRED IN DENYING THE DEFENDANT'S REQUEST TO HAVE THE IDENTITY OF THE CONFIDENTIAL INFORMANT REVEALED; IN THE ALTERNATIVE, MORE INFORMATION ABOUT WHAT THE INFORMANT ALLEGEDLY OVERHEARD SHOULD HAVE BEEN REVEALED TO THE DEFENSE.
A. THE IDENTITY OF THE CONFIDENTIAL INFORMANT SHOULD HAVE BEEN REVEALED TO THE DEFENSE.
B. INFORMATION CONCERNING WHAT THE INFORMATION TOLD THE POLICE SHOULD HAVE BEEN REVEALED TO THE DEFENSE.
POINT II THE DEFENDANT'S SENTENCE IS EXCESSIVE.
After carefully reviewing the record, briefs and arguments of counsel, we are satisfied that none of these arguments have any merit.
In his first point, defendant argues that his motion for disclosure of the identity of the CI should have been granted or, in the alternative, the State should have been required to provide additional information about what the CI revealed. The standard for reviewing the trial court's denial of defendant's motion for disclosure "is to determine whether the trial court abused its discretion after weighing the competing considerations of the balancing test." State v. Milligan, 71 N.J. 373, 383-84 (1976); State v. Adim, 410 N.J. Super. 410, 435 (App. Div. 2009).
The informer's privilege is a qualified privilege that is appropriately limited by its underlying purpose to further the public interest in effective law enforcement. Grodjesk v. Faghani, 104 N.J. 89, 97-98 (1986). See, e.g., Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed. 2d 639, 644 (1957). N.J.R.E. 516 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 are, then, two exceptions to the privilege. In arguing that "the revelation of the informant's identity would have been 'helpful to the defense' and mandated by 'fundamental principles of fairness to the accused[,]'" defendant relies upon excerpts from the Supreme Court's decision in Milligan, supra, 71 N.J. at 383-84. However, the codification of the privilege in N.J.R.E. 516 defines the exception relied upon by defendant more narrowly, i.e., "(b) disclosure of his identity is essential to assure a fair determination of the issues."
Here, the trial court was required to balance the State's interest in preserving the confidentiality of the CI's identity or the disclosure of additional information about his statements to the State Police against defendant's right to prepare a defense and to contest the State's charges. See State v. Williams, 356 N.J. Super. 599, 604 (App. Div. 2003). To warrant disclosure, the defendant must demonstrate the materiality of the informer's identity or testimony. Adim, supra, 410 N.J. Super. at 435; Milligan, supra, 71 N.J. at 390. "The factors relevant to 'materiality' include the informer's connection with the crime and the role the informer will play at trial." Adim, supra, 410 N.J. Super. at 435. Therefore, disclosure may be mandated where the CI is an active participant in the crime or testifies at trial. See State v. Florez, 134 N.J. 570, 580 (1994). "In contrast, when an informer does not testify and was not involved in the crime, information that would be relevant to impeach the informer's credibility has no bearing on the issues at trial." Adim, supra, 410 N.J. Super. at 435. See State v. Williams, 364 N.J. Super. 23, 40 (App. Div. 2003) (finding no abuse of discretion in denying disclosure where informant was merely present as an observer at the scene and did not participate in the crime).
In Williams, supra, 356 N.J. Super. at 601, the CI told police that he had spoken to three men who had bragged to him that they were "stick up guys" who had robbed drug dealers in the area. The CI provided physical descriptions and additional information. The three men were identified when one of them admitted his participation and identified the others. The defendant moved for disclosure of the CI's identity, asserting that he was misidentified and arguing that the disparity between the physical description given by the CI and his appearance supported that defense. We reversed the trial court's order requiring disclosure, concluding that the CI's role "could only be considered marginal" as he did no more than "provid[e] information or 'tips' to the police or participat[e] in the preliminary stage of a criminal investigation.'" Id. at 605 (quoting Milligan, supra, 71 N.J. at 387). See also State v. Singleton, 158 N.J. Super. 517 (App. Div.) (where an informer merely supplies the State with the names of eyewitnesses to the crime, disclosure need not be compelled), certif. denied, 79 N.J. 470 (1978).
The role of the CI here is similarly marginal. He was not an active participant in the offense or even a witness to the crime. The information he provided did not include any admission by any of the participants, just an identification of the persons who discussed the event. Indeed, the CI did not even provide defendant's name as one of the participants in the conversation. As in Williams, the identity of the shooter was established through subsequent investigative work and the inculpatory evidence provided by persons present at the scene. See Williams, supra, 356 N.J. Super. at 606. The questions that defense counsel sought to explore with the CI did not meet any standard of materiality that would require the disclosure of the CI's identity. A defendant's mere hope that the CI might provide exculpatory information is an insufficient basis to order disclosure of the informant's identity. See Adim, supra, 410 N.J. Super. at 435 ("[D]efense request based on 'the possibility that the informer's testimony might controvert' an officer's story [was] deemed 'too speculative and remote' to require the State to choose between identifying an informer and foregoing a prosecution."); State v. Salley, 264 N.J. Super. 91, 101 (App. Div. 1993). There was no abuse of discretion in denying defendant's motion for disclosure of the CI's identity.
We next turn to defendant's challenge to his sentence. When this murder was committed, the mandatory minimum sentence for a violation of N.J.S.A. 2C:11-3(a)(1) was thirty years without parole and the maximum sentence available was life imprisonment. Defendant argues that the imposition of a fifty year term with a thirty year period of parole ineligibility was excessive.
We review the sentencing decision with deference. "[A]s long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]" the sentence will be affirmed. State v. O'Donnell, 117 N.J. 210, 215 (1989). To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); see also N.J.S.A. 2C:43-2(e); R. 3:21-4(g).
Defendant does not dispute that there was an adequate factual basis for the trial court's determination that aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6) (extent of the defendant's prior criminal record and seriousness of offenses); and N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others) applied. He also does not argue that the court failed to find any mitigating factor supported by the evidence. His argument that there is nothing in the record to support a sentence above the thirty year minimum fails to show any abuse of discretion by the trial court.
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