On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-03-0537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez, Grall and LeWinn.
Following a jury trial, defendant Francisco Marrero was found guilty on nine counts of an indictment charging him with crimes related to controlled dangerous substances: four counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10 and -5b(3) (counts one, five, six and eight); two counts of third-degree possession of methylenedioxyamphetamine (MDA or ecstasy), N.J.S.A. 2C:35-10 and -5b(3) (counts three and nine); two counts of second-degree distribution of gamma hydroxyburate (GHB), N.J.S.A. 2C:35-5a(1) and -5.2 (counts two and four); and one count of third-degree possession of gamma butyrolactone (GBL) (an analog of GHB), N.J.S.A. 2C:35-10a(1) (count seven). This was defendant's second trial on these charges; the first resulted in a mistrial because the jury could not reach a unanimous verdict.
The trial judge did not merge any of the convictions. He imposed two consecutive eight-year terms on the two second-degree convictions. These consecutive terms are concurrent with the terms imposed on the other convictions. We affirm but vacate the conviction on count six.
Defendant's convictions are based on drugs that were found during a consent-search of his apartment conducted after his arrest, and his sale of drugs to Detective Donald Ingrasselino of the Bergen County Prosecutor's Office Narcotics Task Force on June 16, July 5, July 15, and August 18, 2005. The detective was acting undercover, and he arranged his four meetings with defendant with the assistance of a confidential informant (CI) whom the State did not identify. At trial, defendant did not deny delivering the drugs to the detective; his defense was entrapment by a friend who he claimed was the State's unidentified CI, N.J.S.A. 2C:2-12.
A summary of Detective Ingrasselino's testimony follows. On June 16, 2005, a CI arrived at the Bergen County Prosecutor's Office Narcotics Task Force (NTF), and told the detective that a man named "Frankie" who was living in Fort Lee was a drug dealer who distributed a variety of narcotics. The CI offered his services to the detective. Detective Ingrasselino knew that this CI had previously worked with the NTF and had himself been arrested for selling drugs in 2000. He believed the CI probably offered his assistance to get favorable treatment on another charge.
The detective accepted the CI's assistance. On June 16, the detective directed the CI to call defendant in his presence, and he listened to their conversation. The CI asked defendant whether he could bring with him a friend who wanted to buy cocaine, and defendant agreed. The detective and the CI drove together to the parking lot of defendant's apartment building. When they arrived, the CI called defendant. Defendant came down to meet them, got into the backseat of the car and gave the detective cocaine in return for $540. The detective asked defendant if he could get other drugs, and defendant said he could get GHB. The detective said he was interested. During that encounter, defendant never hesitated or indicated any unwillingness to deal with the detective.
On June 22, the CI placed another call to defendant in the detective's presence. This time the CI said his friend wanted GHB; defendant agreed to provide it and also offered cocaine. At the detective's direction, the CI said no to the cocaine but yes to the GHB. Again, the CI and the detective met defendant in the parking lot of his apartment house and paid for the GHB. Defendant told the detective he would love the product and warned him to be careful because it was very strong. When the detective asked about other drugs, defendant said he could get "E," which the detective understood to mean ecstasy, or MDA.
On July 5, the detective met the CI and they tried to reach defendant but did not succeed. Later that night, the CI called the detective and advised that he had heard from defendant, who said he had ecstasy and told the CI to come for it. Again, the three men met in the parking lot and completed a transaction, this time money for forty ecstasy pills. The detective asked defendant if he would be able to get 1000 pills, and defendant said he would.
On July 15, the detective asked the CI to see if defendant would allow him to give the detective his phone number. Defendant agreed, and the detective called him and asked for 1000 ecstasy pills. Defendant said he did not have ecstasy but offered GHB. Later that day, the detective and defendant met and completed that transaction.
On August 18, the detective had the CI call defendant and ask if they could buy cocaine. Defendant met them as usual and gave them cocaine. Immediately after that transaction, back-up officers who were listening in came to the car and arrested the men.
According to an officer who participated in the arrest, defendant consented to a search of his apartment. That search led to the recovery of one bottle of GHB, cocaine, a scale, small plastic bags and a bong.
Defendant's account of his four meetings with the detective was for the most part consistent with that of Detective Ingrasselino. The most significant difference is that defendant asserts that the money he was paid was simply a return of cash he had paid for the drugs on behalf of his long-time friend, Marlon Falco. According to defendant, Falco was the person who arranged and was present during his meetings with Detective Ingrasselino. The drugs he delivered belonged to Falco; defendant had done nothing more than pick them up for Falco and pay his supplier.
Defendant met Falco in 2004, while he was in college, through a mutual acquaintance. Defendant experimented with cocaine, GHB and ecstasy while he was in college, and he was able to do that without ever buying any drugs because his friends shared their drugs with him. He and Falco became friends and at times Falco provided defendant with free cocaine.
In January 2005, defendant ran into Falco at Studio Four, a club in Fort Lee. That night and again several weeks later, Falco asked defendant if he had any cocaine on him. Defendant replied, "no." Falco then took defendant to the men's room where they shared cocaine, which Falco gave defendant for free. Falco even gave defendant free cocaine to take home with him.
Later in 2005, defendant encountered Falco at Studio Four, and Falco invited him to his birthday party. They went to an exclusive lounge in New York City called Quo. Falco provided defendant with free ecstasy and cocaine, and introduced defendant to two individuals identified as drug dealers, "Rams" and "Tom."
On three additional occasions, Falco gave free cocaine to defendant at Studio Four. In early Spring 2005, Falco asked defendant to meet with him. Falco informed defendant that he had a disagreement with Rams and Tom, Falco's drug suppliers, and asked defendant to pick up the drugs for him; defendant declined. Falco replied that he would no longer provide defendant with free drugs. Falco promised defendant that he would make the arrangements, and all defendant had to do was pick up the drugs. Defendant agreed to pick up the drugs, pay the money which Falco gave him, and then deliver the drugs. This was done on several occasions.
According to defendant, a few days before June 16 when the CI met with Detective Ingrasselino, Falco asked defendant to pick up cocaine. However, on this occasion, Falco told defendant that he was too busy to drop off the money in advance and requested that defendant front him the money. In return, Falco agreed to let defendant keep some of the cocaine and to pay him back when he picked up the drugs.
After picking up the cocaine, defendant called Falco to pick up the drugs in the parking lot outside defendant's apartment complex. Defendant went to the parking lot and got into the rear passenger seat of a car occupied by both Falco and Detective Ingrasselino, whom Falco introduced as "Tommy." After defendant asked if they were going to go to Studio Four, Falco asked him if he had the cocaine. Defendant gave the cocaine to Falco, and Falco paid defendant the money he had fronted.
Later that night, defendant saw Ingrasselino at Studio Four. They did not engage in conversation. Defendant and Falco consumed cocaine in the club's bathroom that night.
A few days later, Falco contacted defendant and asked him to pick up some GHB for him. Falco contacted the dealer in New York, negotiated the quantity and price, and defendant agreed to front him the money. Defendant bought the GHB and delivered it to Falco and Ingrasselino, and he was repaid for the money he had paid to the New York dealer.
In July 2005, the same scenario was repeated with respect to a purchase of ecstasy. The ecstasy was delivered to Falco, in the presence of Ingrasselino. Sometime later, the scenario occurred again with respect to a bottle of GHB. However, this time Falco said that "Tommy" Ingrasselino would pick up the bottle. The transaction went according to plan.
Defendant's last transaction with the detective was on August 18, 2005. As arranged, defendant delivered cocaine to Falco in the parking lot. After he did, he was arrested.
By stipulation at trial, the jurors were advised that Falco had been charged with crimes he committed in July 2004 and that he subsequently entered into an agreement with the State and pled guilty to the charges.
As noted above, the principal defense strategy centered on the affirmative defense of entrapment, which defendant sought to support with an allegation that the State failed to properly supervise a confidential police informant. The defense contended that Falco made all of the arrangements with the suppliers; the claim was that but for Falco's getting defendant accustomed to having free drugs and his threat to cut off defendant's free supply, defendant would not have become involved in purchasing or distributing drugs.
Prior to trial, defendant made three applications resulting in evidentiary rulings that defendant challenges on appeal. The motion judge first denied defendant's application concerning the nondisclosure of the identity of the CI working with Ingrasselino in the NTF.
Defendant also moved to present expert testimony by Michael Levine on supervision of CIs. The State objected. The motion judge denied the application, finding that the elements of undercover narcotics procedure and the supervision of a CI were not beyond the ken of the average juror, and expert testimony would impermissibly usurp the jury's role as the trier of fact. He reasoned that the affirmative defense of entrapment presented a factual issue, and jurors could reasonably decipher what the facts were without expert testimony.
The third pretrial motion was heard by the trial judge. Defendant had subpoenaed the State for the materials distributed at a seminar for undercover narcotics officers known as "Top Gun." Defendant had learned that Ingrasselino had attended this course. The trial judge granted defendant discovery of the training manual, and stated that he would do an in camera review in order to determine which portions were relevant to defendant's request. However, on motion of the Attorney General of New Jersey, the judge quashed a subpoena served upon that office to produce the manual.
In her opening remarks, the assistant prosecutor, told the jury:
[Y]ou're never going to hear the name of the confidential informant mentioned by the State and the reason why is because we make them a promise that we will keep their identity confidential. There are laws and in fact there's a court order protecting that confidentiality.
During trial, defendant called Falco to testify outside the presence of the jury. Falco invoked his Fifth Amendment privilege and was excused.
Defendant testified and essentially admitted to the underlying conduct.
During his summation, defense counsel stated: "[T]here's been no testimony by the Prosecutor's Office that refute[s] any of the testimony given by [defendant]." The prosecutor's immediate objection was sustained. Defense counsel continued: "Now for you to -- well, there's three people to this case, the confidential informant and as you heard the Prosecutor there's an order saying that we can't call him. His identity is confidential. That doesn't stop us from identifying him but we can't call him." The prosecutor again objected. The trial judge stated to defense counsel: "You can call any witness you wanted to . . . . You had the opportunity to call any witnesses." Defense counsel responded: "Well, except the confidential informant." The prosecutor objected and wanted to be heard at side bar. The judge responded:
No. We're not going to hear it. Ladies and gentlemen, that's not the law. Defense had a right to call any witnesses, could have called any witnesses. Whether Mr. Falco was or was not the confidential informant we don't know but he was not called as a witness so we don't know where he stands.
Defense counsel then objected and requested to speak at side bar.
At side bar, defense counsel objected to the judge's characterization that the defense could have called the CI. Counsel claimed that he was responding to the prosecutor's statement in her opening that there is an order regarding the confidential informant and he is not supposed to be called. The judge responded that defense counsel did call him and he asserted his Fifth Amendment privilege not to testify.
Defense counsel asked for a mistrial or alternatively for a curative instruction. The trial judge denied the mistrial motion, but gave the following instruction to the jury:
I did indicate either side could call any witnesses they want. The fact that someone calls a witness or doesn't call a witness, no inference can be made one way or the other. You're not allowed to read anything into it or read anything out of it. There may be reasons why someone is not called. There may be reasons why someone is not available. We don't know those reasons. So you cannot attribute positive or negative circumstances [to] the fact that a witness was not called.
On appeal, defendant contends that:
THE TRIAL COURT'S VARIOUS PRE-TRIAL EVIDENTIARY RULINGS DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE AND A FAIR TRIAL.
Specifically, defendant contends that the evidentiary rulings regarding: (a) the nondisclosure of the identity of the CI; (b) the admissibility of ...