On appeal from the Superior Court, Law Division, Middlesex County.
Defendant and others were indicted for conspiracy to possess, to possess with intent to distribute and to distribute controlled dangerous substances in violation of N.J.S.A. 24:21-24. The conspiracy count charged as overt acts involving defendant that defendant and one Robert Morrison ". . . used telephone facility (201) 499-7104 located at 88 Patricia Avenue, Woodbridge New Jersey, to engage in a telephonic communication regarding the illegal possession, possession with the intent to distribute and distribution of controlled dangerous substances, to wit, cocaine" and that defendant and Mr. Morrison on April 18, 1981, ". . . met at the Sheraton Inn located in Elizabeth, New Jersey for the purpose of transferring a quantity of controlled dangerous substances, to wit, cocaine." Others named as co-conspirators were indicted in other counts of the indictment, but defendant was not. We need not address whether the overt acts had to be alleged in the indictment. But see N.J.S.A. 2C:5-2d. The indictment contained 16 counts involving 34 defendants. The first count, charging conspiracy, contained 31 overt acts of which defendant was named in only two. Defendant was tried alone and convicted. Following the denial of her motion for new trial, she was sentenced to two years in the custody of the Commissioner of Corrections. She appeals and argues:
POINT I DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT II THE COURT FAILED IN NOT CHARGING THE JURY, ON REQUEST, THAT DEFENDANT'S PARTICIPATION IN THE CONSPIRACY, UNDER THE STATE'S CLEARLY ARTICULATED THEORY OF THE CASE, REQUIRED A FINDING THAT SHE ACTUALLY WAS IN POSSESSION OF AND DELIVERED COCAINE ON APRIL 18.
POINT III THERE WAS NO FACTUAL BASIS FOR ORDERING A TWENTY-FOUR HOUR WIRETAP UPON THE MORRISON PHONE.
Our careful review of the record convinces us that the arguments raised in Points II and III are clearly without merit. R. 2:11-3(e)(2). As to Point II, see State v. Wilbely, 63 N.J. 420, 422 (1973); N.J.S.A. 2C:5-2(b), (c). As to Point III, see also
State v. Catania, 85 N.J. 418 (1981). A 24-hour wiretap was authorized in this case for a period of no more than twenty days in light of the facts detailed in Officer Dixon's forty-one page affidavit.
The difficult issue raised by this appeal relates to whether defendant's motion for judgment of acquittal should have been granted on the ground that there was insufficient proof identifying the defendant as the Elizabeth Bain referred to in the evidence. Giving the State the benefit of all legitimate inferences, we have no hesitation in concluding that the record adequately supports a finding that one Elizabeth Bain was a conspirator in the illegal possession and distribution of controlled dangerous substances, that she was in the Sheraton Inn in Elizabeth on April 18, 1981 for the purpose of distributing drugs and that she did so. The real question in this case, however, concerns the sufficiency or existence of proofs, if any, relating to whether the Elizabeth Bain referred to in the evidence was the Elizabeth Bain on trial in the courtroom. At the end of the State's case, counsel moved for judgment of acquittal arguing, in part, that there was no evidence identifying defendant as the person referred to in the evidence.
There were proofs, in terms of recorded conversations, to the effect that Ms. Bain had arrived at the Sheraton Inn and that Mr. Morrison went there to meet her. He was observed entering the room registered to Ms. Bain with an attache case and leaving with the same attache case approximately ten minutes later. The judge concluded:
I'm satisfied a reasonable jury could find that a conspiracy existed between Robert Morrison and others to possess -- to possess with intent to distribute and to distribute controlled dangerous substances.
A reasonable jury could find that Betty Bain was known to Morrison, based upon the information contained in the telephone books. And was in touch with Morrison, the Morrison residence by phone on April 18th. Could find that she arrived pursuant to the plan at Newark Airport and took lodging at the Sheraton. That she was visited briefly upon her arrival by Morrison. And that she was in agreement with him to engage in conduct which ...