State v. Florez

• Decision Date: 12 March 1991
• Citation: 589 A.2d 1382,248 N.J.Super. 54
• Parties: STATE of New Jersey, Plaintiff, v. Alex FLOREZ and Harold Garcia, Defendants.
• Court: New Jersey Superior Court

Page 54

248 N.J.Super. 54

589 A.2d 1382

STATE of New Jersey, Plaintiff, v. Alex FLOREZ and Harold Garcia, Defendants.

Superior Court of New Jersey, Law Division Somerset County.

Decided March 12, 1991.

James R. Wronko, for plaintiff (Nicholas L. Bissell, Jr., Prosecutor of Somerset County, attorney).

Anthony J. Mignella, for defendant Alex Florez (William J. Bizub, Deputy Public Defender of Somerset County, attorney).

William O. Perkins, Jr., for defendant Harold Garcia (Perkins & Medal, attorneys, Jersey City).

IMBRIANI, P.J.Cr.

The issue in this case is whether the State should be compelled to disclose the true name and address of a confidential informant. The State acknowledges that his testimony at the trial is essential to a fair determination of the issues. Consequently, he had been identified as a Nicholas Cappolo, but the State now concedes that although he has used this name for several years it is in fact a pseudonym.

This case involved a "reverse sting" in which the police posed, not as buyers of cocaine as usually occurs, but as sellers. The purpose of the operation is to identify and arrest mid-level cocaine dealers in the New York metropolitan area who seek to purchase large quantities of cocaine at wholesale prices. These dealers, who are known to distribute cocaine throughout the entire New York metropolitan area, including Somerset County generally do not reside in Somerset County and, in this case, reside in Union County.

About one and one-half years ago, the Somerset County Prosecutor's Office hired Nicholas Cappolo as a confidential informant (hereafter CI) and instructed him to disseminate information, in the New York metropolitan area, that he knows a person who will sell large quantities of cocaine at less than usual wholesale prices. The usual price was $18,000 to $22,000 per kilogram of cocaine, but he said that this seller was willing to accept only $16,000 per kilogram ¹. CI's responsibility was to arrange a meeting at which the buyers would bring cash to a predetermined location to purchase cocaine from an undercover police agent and at that time the buyers would be arrested.

The State agreed that, if the services of CI resulted in an arrest, he would receive a fee for his services of 10% of all cash seized up to $100,000, and 15% in excess of $100,000. CI has been enormously successful. As the result of his efforts 13 indictments have been returned against 27 defendants and cash of about $1,300,000, generally in $5, $10, $20 and $100 bills, has been seized. Consequently, CI has earned over $130,000.

CI met defendants in Elizabeth, New Jersey, and following discussions in Union and Hudson Counties, they agreed to go to the parking area of a shopping mall in Somerset County to complete the transaction. Defendants expressed a desire to buy multi-kilograms of cocaine, but as a starter the first transaction was to be for only one kilogram at a price of $16,000.

During the morning of January 6, 1990 defendants, CI and a fourth person (another confidential informant for the State) met in Elizabeth, New Jersey, went to a diner for breakfast and agreed to meet early that afternoon at the shopping mall. Defendants went separately in their car and CI and the other person in a second car. Defendants were instructed by CI to bring $16,000 in cash and CI, who did not then possess the cocaine for security reasons, agreed to produce the cocaine at the shopping mall. Pursuant to a pre-determined plan prosecutor's detectives parked a decoy automobile (a third car) in the parking area at the mall and placed one kilogram of cocaine in a bowling bag in the trunk.

Upon arrival at the mall one defendant remained in his car as a look-out while the other went to the decoy car with a bag containing $16,000 in cash which he placed on the front seat of the decoy car. CI had exited his car and was waiting for defendant in the decoy car. When CI received the money he told defendant to open the trunk of the decoy car and remove the bowling bag which contained the cocaine. Defendant returned to his car with the cocaine but before defendants could leave the area a surveillance team of about ten police officers converged on the scene, seized the cocaine and $16,000, arrested both defendants and charged them with conspiracy to possess cocaine with intent to distribute.

The State previously made a motion to permit CI to testify at the trial with a hood over his head to conceal his identity in order to protect him and his family. The motion was denied as a violation of defendants' Sixth Amendment right to confront all witnesses against them. See Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) and Maryland v. Craig, 497U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). The court also denied defendants' motion to dismiss the indictment for alleged "due process" entrapment which was based on the claim that (1) CI was paid a commission and (2) the State supplied the drugs. Both claims were held to be without merit. See State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976); State v. Rockholt, 96 N.J. 570, 476 A.2d 1236 (1984); State v. Medina, 201 N.J.Super. 565, 493 A.2d 623 (App.Div.1985).

This is another motion filed by defendants to obtain the true name of CI and his residence so that they can inquire into his background and attempt to interview him. They also sought a copy of his FBI arrest record and when the State objected, the court ordered that it be submitted in camera. It was at that time that it was first revealed that "Nicholas Cappolo" was a pseudonym. The court gave defendants a copy of the arrest record with CI's true name redacted and informed defendants that "Nicholas Cappolo" was not CI's true name. The arrest record revealed that CI was arrested in Seattle, Washington in 1983 upon a charge of sale of cocaine that was dismissed and again on March 30, 1990 (two months after this incident) by federal authorities in Brooklyn, New York upon a charge of theft of government funds, which charge is still pending.

It is well established that the identity of a confidential informant need not be disclosed unless his identity is essential to assure a fair determination of the issues. See Evid.R. 36; Roviaro v. U.S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Oliver, 50 N.J. 39, 231 A.2d 805 (1967). The policy objective is to foster effective law enforcement by encouraging citizens to perform their civic duty to communicate knowledge of criminal activity to law enforcement officials. The foundation of the policy is that citizens will be encouraged to perform that obligation if they can be assured of their anonymity. However, the privilege is not absolute and is inapplicable when the confidential informant is an essential witness, or was an active participant in the crime, or the defense of entrapment seems reasonably plausible or mandated by fundamental principles of fairness to the accused. State v. Milligan, 71 N.J. 373, 383-384, 365 A.2d 914 (1976). The issue here is not whether there shall be disclosure but what shall be its extent.

Defendants argue that they need the true name and address of CI to inquire into his background to obtain information to effectively cross-examine him. For instance, they contend that they need to investigate the circumstances of his two arrests but they cannot do so unless they are told his true name and can go to the courthouse where he was arrested to examine his file. Our task is to balance defendants' need to obtain relevant information to assist in the cross-examination of CI against the State's need to protect the anonymity of confidential informants who are said to be the cornerstone of the war on drugs. We must deal with many intangible factors and it is not easy to discern the components of this equation, much less its solution. We are satisfied that the need of the State is clear and substantial. What we must also determine is whether the need of defendants is equally clear and substantial. Is this information essential to enable defendants to fully and vigorously defend themselves? Roviaro recognized that no fixed rule respecting disclosure can be enunciated and each case must be examined separately. 353 U.S....