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State of New Jersey v. Nagy A. Ibrahim

February 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NAGY A. IBRAHIM, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0227.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 19, 2011

Before Judges Sabatino, Ashrafi, and Fasciale.

After a jury trial, defendant Nagy A. Ibrahim was convicted of first-degree distribution of a controlled dangerous substance ("CDS"), specifically cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1); three counts of second-degree distribution of CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); and three counts of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1). At sentencing, the trial court granted the State's motion for an extended term, merged the second-degree and third-degree convictions into the first-degree conviction, and imposed a fifty-five-year prison term with a twenty-five year period of parole ineligibility.

Defendant now appeals his convictions and sentence on various grounds, principally contesting the State's use of a confidential informant in the investigation that led to his prosecution. We affirm the convictions, but remand for further consideration of the sentence.

I.

This prosecution arose out of defendant's illegal distribution of crack cocaine to a confidential informant, John Doe,*fn1 on three separate occasions. While Doe was being held in the county jail on drug charges, he indicated that he was interested in cooperating with law enforcement authorities. His offer of cooperation was accepted.

Over time, Doe became what the State's lead investigator described as a "highly reliable" cooperating witness. Doe ultimately assisted the federal and state governments in approximately twenty-five investigations involving first-degree and second-degree offenses, including the present case. Initially, Doe received a reduced sentence in exchange for his cooperation. Then, after Doe had finished what the record describes as "working off his time," he received certain cash payments in connection with his continued services as a confidential informant.

Detective Keith Carmack of the Atlantic County Prosecutor's Office was the lead investigator in defendant's case. Carmack is very experienced in narcotics investigations. He estimated that, during his ten years in law enforcement, he had investigated "[c]lose to a thousand" cases involving the illegal distribution of drugs, serving as the primary investigator in "hundreds." His testimony at defendant's trial included general background about the government's use of confidential informants in drug cases, a key focus of the present appeal.

Carmack testified that he has used confidential informants hundreds of times. He explained to the jury that an undercover drug purchase typically involves "a law enforcement officer who is acting in an undercover capacity in one form, who possibly gets introduced to an individual with the possibility to purchase either drugs or guns." He noted that investigators often use confidential informants because it is difficult to introduce an undercover officer in cases involving so-called "mid-level" drug dealers, such as those who deal in quantities of multiple ounces of cocaine.

Carmack testified that a confidential informant commonly would be used to perform either a "controlled buy"*fn2 or a "wired sale." A "controlled buy," according to Carmack, involves "an informant who is not wired with a body wire, so we can't hear the conversation that is going on . . . . We have that [informant] go into a house, a residence, a store, whatever the place may be; the purchase is made, they come out[.]" A "wired sale" by comparison, is a recorded drug transaction, which "gives the person recording it the ability to hear what is going on."

According to Carmack, before a confidential informant is used in an investigation, an "overhear" is conducted to verify the information provided by the informant. An overhear involves "listening in on a conversation that is placed from the informant to whatever individual . . . [is] the 'target' at this point of that investigation."

Carmack acknowledged that, prior to conducting a wired sale with a confidential informant, the prosecutor must approve a "consensual intercept" authorizing the recording. After obtaining authorization for such a consensual intercept, investigators would have the informant set up an initial buy.

During his initial session with Detective Carmack concerning the present case, Doe provided him with defendant's cell phone number and a description of defendant. Doe indicated that defendant was selling cocaine that he could purchase. After conducting an overhear that confirmed Doe's statements, Carmack obtained authorization for a consensual intercept from an assistant prosecutor.*fn3

Eight days later, on September 19, 2007, Doe placed another recorded call to defendant, this time to set up a purchase. Carmack then provided Doe with $1600 to purchase two ounces of crack cocaine from defendant.

Carmack stated that Sergeant Robert Kelly from the prosecutor's office trailed Doe to the agreed-upon meeting place in the parking lot of an Atlantic County inn. At the same time, a detective from the prosecutor's office and an FBI special agent conducted observational surveillance.

According to Carmack, he personally observed Doe pull into the inn's parking lot. He saw defendant emerge from the inn and get into Doe's vehicle. Doe's vehicle was then driven to a spot on a nearby street about a block away. Defendant then got out of the vehicle after making arrangements to meet Doe at a local convenience store.

After the purchase transaction took place at the convenience store, Sergeant Kelly followed Doe back to the meeting location, where Doe and his car were both searched by Carmack. Doe gave Carmack a plastic bag containing an "off-white rocky substance." A subsequent laboratory test confirmed that the bag contained over 55.7 grams of cocaine.

The second wired sale took place on October 4, 2007. On that day, investigators again met with Doe, who placed another recorded call to defendant. Carmack provided Doe with the funds to make the purchase, and Doe and defendant again arranged to meet at the inn.

On this second occasion, Carmack witnessed Doe pull into the parking lot. Shortly after that, Carmack observed a car pull into the inn's parking lot and park next to the passenger side of Doe's car. Defendant got out of the car and got in the passenger side of Doe's car. He then went back to his vehicle and left the parking lot. After Doe returned to the designated safe location, he turned over one-and-a-half ounces of crack cocaine that he had just purchased from defendant to the investigating officers. A subsequent laboratory test measured the quantity of that cocaine to be 41.7 grams.

The third and final wired sale occurred on October 22, 2007. Another detective conducted an overhear that day on a phone call that Doe made to defendant. Detective Carmack then recorded a second phone call that Doe made to defendant that same day, seeking to arrange a purchase at a local mall.

Detective Carmack provided Doe with $1600 to purchase two ounces of crack cocaine from defendant at the mall. Carmack testified that, during this third wired sale, he personally observed Doe walk down an aisle in the parking lot and stop in front of the mall entrance. He then saw defendant walk up to the passenger side of a vehicle, accompanied by "a young male between eight to ten years old." Carmack saw defendant open the car's passenger side door and lean inside. Defendant and the youth then walked away and entered the mall.

Sergeant Kelly followed Doe back to the designated safe location, where Doe and his car were both searched by another detective. This time, Doe turned two ounces of crack cocaine over to Detective Carmack. A subsequent lab test measured this third quantity to be 55.3 grams of cocaine.

At trial, in addition to Detective Carmack, the State also presented testimony from Doe and five other officers who had participated in the investigation. Defendant did not testify and did not present any witnesses on his own behalf. The parties stipulated that 152.6 grams of cocaine (or about 5.362 ounces) were collectively recovered as a result of the investigation.

Defendant was convicted by a jury on counts one through seven in the indictment. As previously stated, he received a fifty-five-year extended sentence.

This appeal followed.

II.

On appeal, defendant raises the following points for our consideration:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S PAYMENTS TO ITS FACT WITNESS FOR TESTIMONY. (Not Raised Below) POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS THAT THEY MAY CONSIDER THE STATE'S PAYMENTS TO ITS FACT WITNESS AND THAT THEY MAY CONCLUDE THAT THE WITNESS IS NOT CREDIBLE BECAUSE HE WAS PAID FOR HIS TESTIMONY. (Not Raised below)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO DISCLOSE REQUESTED WITNESS PAYMENT RECORDS.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CAUSATION EVEN THOUGH CAUSATION WAS CENTRAL TO THE CASE. (Not Raised Below)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION TO CONVICT IF THE STATE PROVED THE ELEMENTS OF THE OFFENSE, EFFECTIVELY PRECLUDING A CONSIDERATION OF THE ENTRAPMENT DEFENSE. (Not Raised below)

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE IMPUGNING THE DEFENDANT'S CHARACTER. (Not Raised Below)

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S INVESTIGATOR TESTIFIED THAT THE PAID INFORMANT WAS CREDIBLE BECAUSE HE HAD PROVIDED RELIABLE INFORMATION IN [TWENTY-FIVE] PRIOR CASES. POINT IX

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY INCRIMINATING EVIDENCE SHOWING A CRIMINAL ...


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