Opinion
DOCKET NO. A-1899-14T2
02-01-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM J. SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Currier. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-04-1281. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant William J. Smith was found guilty of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), second-degree possession of a firearm during the commission of a narcotics offense, N.J.S.A. 2C:39-4.1, and fourth-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(b)(12). He was sentenced to an aggregate custodial term of six years with a three-year parole disqualifier.
Defendant's criminal conduct was observed by a State Police detective on surveillance in the City of Camden in what is known as a "sneak-and-peek" operation. On August 11, 2012, the detective saw a group of individuals outdoors, including defendant, involved in apparent hand-to-hand drug exchanges. From the detective's surveillance point, he saw an individual walk up to defendant, engage him in a brief conversation, and hand defendant money. Defendant, in turn, removed a small vial of drugs from his pocket and gave it to the purchaser.
The detective provided an arrest team with defendant's description. When that team arrived, the detective then saw defendant walk up to a nearby residence, open the front door, take a gun out of his waistband, place the gun inside the premises, and then close the door.
As defendant came off the front porch of the residence, he was arrested by other officers and found in possession of five jars of marijuana. The gun he had discarded was also seized after police obtained the consent of the residential owners to search the premises and found a silver handgun underneath a couch by the front door.
Prior to trial, defendant moved to suppress the seized evidence, which the officers had obtained without a warrant. The State presented testimony from the detective at the suppression hearing, which described what he had observed at the scene. However, the State declined to disclose the specific location from which the detective conducted his surveillance, other than acknowledging that it was in a hidden spot about fifteen to twenty yards above the intersection.
Pursuant to State v. Garcia, 131 N.J. 67 (1993), the trial court conducted an in camera hearing outside of the presence of defense counsel. The judge thereafter concluded that it would be a public safety risk to persons and property to reveal the surveillance location, which was still being used by law enforcement on an ongoing basis. The judge denied the motion to suppress, finding that there was probable cause for defendant to be arrested and searched incident to his arrest. The judge also noted the gun had been properly seized pursuant to a consensual search of the premises.
We have reviewed as part of the appeal a confidential transcript of the in camera proceeding. --------
At trial, the State presented evidence of the drugs and the gun uncovered in the investigation, as well as testimony from the State Police detective, several other officers who were involved, an expert chemist who had tested the drugs and verified they were contraband, and a fingerprint expert. Defendant did not testify himself, but he presented testimony from one of the other persons who had been standing outside with him when the police descended upon the scene.
The jury convicted defendant of all three counts of the indictment. Defendant raises no claims on appeal of trial error. Nor does he argue his sentence was excessive or illegal. The sole issue he raises on appeal concerns the State's non-disclosure of the surveillance location. Specifically, his brief makes the following singular point:
POINT ONEWe reject this contention and affirm, substantially for the reasons expressed by Judge Gwendolyn Blue in her December 17, 2013 oral opinion denying the suppression motion.
THE DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL WHEN THE COURT RULED THAT THE STATE DID NOT HAVE TO DISCLOSE THE VANTAGE POINT FROM WHICH THE POLICE VIEWED THE ACTIVITIES THAT LED TO HIS ARREST. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
N.J.R.E. 515 establishes a privilege in this State disallowing the disclosure of confidential official information "forbidden by or pursuant to any Act of Congress or of this State" or if a "judge finds that disclosure of the information . . . will be harmful to the interests of the public." N.J.S.A. 2A:84A-27. Our Supreme Court has enforced this privilege in the context of ongoing confidential law enforcement investigations. Most pertinent here, in Garcia, supra, 131 N.J. at 78, the Court held that the precise location of a law enforcement surveillance vantage point is privileged if there is "a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." If the State makes such a preliminary showing, disclosure of the location should only occur where it "infringes on a defendant's constitutional rights." Id. at 79-80; see also State v. Laws, 262 N.J. Super. 551, 558-59 (App. Div.), certif. denied, 134 N.J. 475 (1993).
In assessing whether N.J.R.E. 515 privilege can be overcome in such matters, the court should consider "the crime charged, the possible defenses, the potential significance of the privileged information and other relevant factors." State v. Zenquis, 131 N.J. 84, 88 (1993) (citing Garcia, supra, 131 N.J. at 80). An important factor in that analysis is the degree to which the testimony of the surveillance officer is corroborated by other evidence. Garcia, supra, 131 N.J. at 82; Laws, supra, 262 N.J. Super. at 560. Hence, in Garcia, the Court denied disclosure of a surveillance location where such corroboration was furnished by an informer's tip and contraband was discovered in the precise location identified by the surveillance officer. Garcia, supra, 131 N.J. at 82-83. By contrast, disclosure was warranted in Zenquis to protect the criminal defendant's rights because there was no such corroboration and no drugs were discovered in the surveillance location or on the suspects. Zenquis, supra, 131 N.J. at 88-89.
Generally speaking, disclosure should be denied unless the criminal defendant makes a sufficient "showing of need" to learn of the "exact" location. Garcia, supra, 131 N.J. at 80-81. Where a defendant has the opportunity to cross-examine the surveillance officer about factors that could have affected his ability to observe what he claimed to have seen, the defendant's rights of confrontation and fair trial may be satisfied without the State revealing the location. Id. at 81-82; Laws, supra, 262 N.J. Super. at 559.
On appeal, we will not disturb a trial court's decision not to disclose a surveillance location unless the defendant establishes the decision was an abuse of discretion. Having examined the record from the suppression hearing and the associated in camera proceedings in light of the applicable law, we are satisfied that no such abuse of discretion is demonstrated here.
The State's need for the continued confidentiality of the surveillance location is amply established by the testimony of the State Police detective, who the trial court found credible. As the detective attested, the location was then still being used for other undercover purposes, and persons would be endangered if that location were divulged. Defense counsel had an ample and fair opportunity to cross-examine the detective at both the suppression hearing and at trial without the specific location being disclosed.
In particular, defense counsel impeached the detective's narrative by pointing out that there was shrubbery in front of the residence where the drug activity occurred. It was not vital for defense counsel to know the detective's exact confidential viewing location in order to cross-examine him at length concerning a variety of impeachment subjects, including alleged discrepancies between his testimony and his written report. In addition, as in Garcia, there are several corroborating proofs, including the drugs found at the scene and the firearm defendant discarded at the residence.
We also readily agree with the trial court that the police had probable cause to arrest defendant and others involved in the apparent drug trade, and to search him incident to that lawful arrest. State v. Moore, 181 N.J. 40, 46 (2004) (regarding probable cause); State v. Dangerfield, 171 N.J. 446, 461 (2002) (regarding the search-incident-to-arrest exception to the warrant requirement).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION