On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Dreier, Havey and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).
[234 NJSuper Page 301] The first, third, fifth and seventh counts, respectively, of a nine-count indictment charged defendant Francisco Rodriguez with possession of 27.65 grams of cocaine on May 8, 1986; 0.21 grams on May 9, 1986; 27.75 grams, of which 23.7 grams was free base, i.e. pure cocaine, on May 14, 1986; and 26.7 grams, of which 21.3 grams was free base, on May 23, 1986, contrary to N.J.S.A. 24:21-20(a). The second, fourth, sixth, and eighth counts, respectively, of the indictment charged that he distributed that quantity of cocaine on the stated date, contrary to N.J.S.A. 24:21-19(a)(1). The ninth count alleged that from on
or about May 7, 1986, to on or about May 28, 1986, defendant conspired with Luz Ramirez, Nelson Cartagena, Elliot Piniero, and Francisco Mendez, who were also charged in the indictment, to distribute cocaine contrary to N.J.S.A. 2C:5-2, N.J.S.A. 24:21-24, and N.J.S.A. 24:21-19. There was no allegation of what quantity of cocaine Rodriguez had conspired to distribute.
The evidence against Rodriguez consisted primarily of the testimony of Nelson Cartagena, who had pleaded guilty pursuant to a plea agreement, and of Juan Acevedo, Jr., an undercover investigator with the Camden County Prosecutor's Office who had purchased cocaine from Rodriguez's co-conspirators, ostensibly for resale. Acevedo did not make any purchases directly from the defendant. However, he inculpated Rodriguez primarily by testifying to statements of the defendant's co-conspirators.
A jury found defendant guilty on each of the counts of the indictment. In response to a special interrogatory, the jury also found that the object of the conspiracy was to distribute one ounce or more of cocaine containing at least 3.5 grams of pure free base.
Following the verdict the court merged the first eight substantive counts of the indictment into the ninth conspiracy count and sentenced the defendant to life imprisonment with 25 years' parole ineligibility for conspiracy to distribute cocaine.
Defendant's two most substantial grounds of appeal are (1) the admission into evidence of his co-conspirators' out-of-court statements, and (2) his sentence of life imprisonment for conspiracy to distribute more than an ounce of cocaine containing at least 3.5 grams of free base, after trial and conviction on an indictment which did not charge distribution of those quantities as the object of the conspiracy. Rodriguez also claims that the court erroneously limited his attempts to prove his co-conspirators' commission of other crimes to impeach the statements which were attributed to them, that a mistrial should have been granted because of improper conduct by the prosecutor during
summation, and that the jury was "tainted" as the result of three jurors' reading a newspaper article about Acevedo's participation in another case. He further contends that the court mistakenly refused to provide a readback of testimony about the first drug transaction in which defendant was implicated, that his sentence should be set aside because the court conferred with the jurors after receipt of their verdict, but before sentencing, and that his punishment was, in any event, manifestly excessive.
For the following reasons, we hold that the defendant was not subject to be sentenced to life imprisonment. We vacate the judgment insofar as it merged the first eight counts into the ninth, and we remand the case for resentencing. In all other respects, we affirm the judgment of the trial court.
[Part I of this opinion deals with defendant's challenge to the admission into evidence of his co-conspirators' out-of-court statements. It is primarily factual and has been omitted from the published opinion because of its length.]
We turn now to defendant's second principal ground of appeal, the court's submission of a special interrogatory to the jury as part of the verdict sheet, asking the jurors whether the object of the conspiracy was to distribute an ounce or more of cocaine including at least 3.5 grams of free base. They answered the question affirmatively and, based upon the language of N.J.S.A. 24:21-24 and N.J.S.A. 24:21-19, the trial court ...