State v. Florez

• Decision Date: 08 December 1992
• Citation: 261 N.J.Super. 12,617 A.2d 670
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Alex FLOREZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 12

261 N.J.Super. 12

617 A.2d 670

STATE of New Jersey, Plaintiff-Respondent, v. Alex FLOREZ, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Sept. 30, 1992.

Decided Dec. 8, 1992.

Zulima V. Farber, Public Defender, attorney for defendant-appellant (Jon Steiger, Designated Counsel, Manasquan, on the brief).

Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney for plaintiff-respondent (Craig V. Zwillman, Deputy Atty. Gen., of counsel and on the brief).

Before Judges COLEMAN, SHEBELL and STEIN.

The opinion of the court was delivered by

COLEMAN, J.H., P.J.A.D.

The significant issue raised in this appeal is whether the true identity of an informant who negotiated and consummated a sale of drugs should be disclosed in the trial on the issue of guilt where the informer is the State's primary witness. Following a jury trial, defendant was found guilty of second- conspiracy with Harold Garcia ¹ to possess cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), b(1) and N.J.S.A. 2C:5-2. Defendant was sentenced to a custodial term of eight years, and he was fined $1,500. In this appeal, the following issues have been raised:

I THE USE OF A SPECIAL INTERROGATORY ON THE JURY VERDICT FORM VIOLATED ESTABLISHED STANDARDS APPLICABLE TO THE ADMINISTRATION OF CRIMINAL JUSTICE AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

II THE COURT'S MISINSTRUCTION TO THE JURY ABOUT THE NECESSITY FOR INTENT TO DISTRIBUTE AS AN ELEMENT OF THE SUBSTANTIVE OFFENSE UNDERLYING THE CONSPIRACY CHARGE HAD THE CAPACITY TO CONFUSE THE JURY AND WAS PLAIN ERROR (PLAIN ERROR; R. 2:6-2(a)(1)).

III NUMEROUS IMPROPER AND INFLAMMATORY STATEMENTS INCLUDED IN THE PROSECUTOR'S SUMMATION HAD THE CAPACITY TO INFLAME THE JURY AND AMOUNTED TO PROSECUTORIAL MISCONDUCT TO A DEGREE SUFFICIENT TO WARRANT A REVERSAL OF THE DEFENDANT'S CONVICTION. (PLAIN ERROR; R. 2:6-2(a)(1)).

IV THE COURT'S ERRONEOUS INSTRUCTION TO THE JURY AS TO THE AFFIRMATIVE DEFENSE OF ENTRAPMENT HAD THE CAPACITY TO CONFUSE THE JURY AND BRING ABOUT AN UNJUST RESULT.

V IT WAS SERIOUS ABUSE OF JUDICIAL DISCRETION TO DENY THE NUMEROUS DISCOVERY REQUESTS OF DEFENDANTS.

I

This case involves a "reverse sting" drug operation conducted by the Somerset County Prosecutor. The prosecutor retained the services of a "so-called informer" to set up drug deals and to sell cocaine at less than market rates. The "so-called informer" was a cocaine broker hired by the prosecutor, and he was paid a percentage of the cash received. The trial judge described Capola as a paid, professional confidential informer, State v. Florez, 248 N.J.Super. 54, 61, 589 A.2d 1382 (Law Div.1991), who "was, in effect, a State's agent."

The purpose of the operation was to identify and arrest mid-level cocaine dealers in the New York metropolitan area, who were interested in purchasing large quantities of cocaine at wholesale prices. Many of these dealers were believed to reside outside of Somerset County. The present case involves a transaction that was negotiated in defendant's home county of Union and finalized in Somerset County. The role of regular law enforcement personnel was to act as backup surveillance to arrest the buyers when a sale with the "so-called informer" was consummated. The present case involves a sale of drugs which occurred on January 4, 1990.

About one and one-half years prior to January 1990, the Somerset County Prosecutor's Office hired Nicholas Capola (a pseudonym) as a confidential informer. They 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 the usual wholesale prices. The usual price varied between $18,000 to $22,000 per kilogram of cocaine, but Capola disseminated information that he knew a seller willing to accept only $16,000 per kilogram. Capola was that seller. Capola's responsibility was to arrange a meeting at which the buyers would bring cash to a predetermined location to purchase cocaine. Once the drug deal was closed, the buyers would be arrested.

Capola was rewarded rather well for his services when an arrest was made which resulted in the seizure of cash. He would receive a commission of 10% of all cash seized up to $100,000, and 15% in excess of $100,000. Capola has been enormously successful. As the result of his efforts, 13 indictments have been returned against 27 defendants and cash of $1,300,000 has been seized. Consequently, Capola has earned about $145,000 in commissions.

On January 2, 1990, Orizon De La Roche also became an informer for the Somerset County Prosecutor following his arrest during a drug transaction arranged by Capola. He was not a paid informer; instead he worked as an informant in the hope of receiving a favorable disposition of his criminal case. On January 4, 1990, De La Roche provided Capola with the names of defendant Florez and co-defendant Garcia as potential cocaine buyers. The first meeting between defendant, Garcia, De La Roche and Capola occurred on January 6, 1990 in Elizabeth, New Jersey. This meeting was the outcome of other discussions about the sale and purchase of one kilogram of cocaine for $16,000.

At the meeting, defendant approached a car, which Capola and De la Roche occupied, while Garcia remained about 200 feet away in the defendant's car. Capola and defendant discussed the one kilogram of cocaine. After that conversation, Garcia and Florez drove to a diner in Roselle, New Jersey, where the two of them, Capola and De la Roche had coffee. They agreed that after breakfast, Garcia and Florez would follow Capola and De la Roche to a certain area of the parking lot for the Blue Star Shopping Center in Watchung, Somerset County, New Jersey, to finalize the sale for one kilogram of cocaine for $16,000.

When Capola and De La Roche arrived at the parking lot, Capola got out of his car leaving De La Roche behind. Pursuant to a predetermined plan, a surveillance team of regular law enforcement personnel had parked a decoy automobile (a third car) in the designated parking area at the mall into which they had placed one kilogram of cocaine in the trunk. Capola walked from his car to the decoy car with Florez. Garcia followed in their car and parked next to the decoy car. After Garcia showed Capola the money, they got into the decoy car. The money ($16,000) was given to Capola by Garcia. Capola then obtained the cocaine from the trunk of the decoy car, and it was placed into a gym bag. Garcia took possession of the cocaine, while Florez was standing beside the decoy car. Garcia told Capola that the money bag contained one or two checks which were good. As Garcia and Florez were walking back to their car, the surveillance team of law enforcement officers arrested everyone and seized the cocaine as well as the money. Later, Capola was paid about $1,700 in commissions for this drug deal.

II

First we turn our attention to defendant's contentions that the denial of certain pretrial discovery motions deprived him of a fair trial. The trial court's rulings on some of these motions have been reported in State v. Florez, supra, 248 N.J.Super. 54, 589 A.2d 1382. More specifically, defendant argues that the failure of the trial court to require disclosure of the true identity and address of Capola precluded any effective cross-examination of him, thereby depriving defendant of his Sixth Amendment right to confrontation.

During the pretrial phase, the prosecutor took the position that Capola was the only informer involved in the cocaine sale to defendant. Capola submitted a certification to the court stating that his life would be jeopardized if his identity, address and facial features were disclosed. Based on this certification, the prosecutor made an application to permit Capola to testify with a hood over his head. This motion was denied because the judge regarded that "as a violation of defendant['s] Sixth Amendment right to confront all witnesses against [defendant]." State v. Florez, supra, 248 N.J.Super. at 58, 589 A.2d 1382.

Thereafter, defendant made a motion to compel the prosecutor to disclose the true name and address of Capola to enable defendant to conduct a meaningful investigation of his accuser. The request was made pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963) and the Sixth Amendment confrontation clause. In response, the prosecutor gave defense counsel a redacted copy of Capola's arrest record. That record allegedly revealed that he was arrested in Seattle, Washington, on a charge of selling cocaine which was dismissed. The record also revealed that Capola was arrested on March 30, 1990, by federal authorities in Brooklyn, New York on a charge of theft of government funds. That charge was still pending in March 1991 when the present motion was decided by the trial court. Since the prosecutor had redacted Capola's name and address from the arrest record, defendant was unable to conduct an independent investigation of Capola.

The trial judge declined to require disclosure of the name and address of Capola, finding that disclosure was not necessary. State v. Florez, supra, 248 N.J.Super. at 62, 589 A.2d 1382. The judge concluded that the fear of potential harm to him and/or his family outweighed the necessity for disclosure of Capola's true name and address. Id. at 63, 589 A.2d 1382. The judge concluded further that a redacted copy of Capola's "rap sheet" provided defendant's counsel with enough information with which to impeach Capola's credibility, enabling defense counsel to conduct a proper cross-examination of Capola. Thus, Capola was permitted to testify at trial under that pseudonym, and defendant was prohibited from obtaining his real name and address.

Defendant argues that the judge erred in denying his motion to compel disclosure of Capola's true name and address. Under both the Sixth Amendment to the United States...