On appeal from Superior Court, Law Division, Mercer County.
Judges Long, R.s. Cohen and Stern.
Defendant pled guilty to conspiracy to manufacture and distribute cocaine and methamphetamine, N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-24; racketeering, N.J.S.A. 2C:41-2c; and income tax evasion, N.J.S.A. 54A:9-15(a). Pursuant to the negotiated disposition, thirteen other counts were to be dismissed, a maximum custodial recommendation was made by the Attorney General, defendant agreed to testify against others, and the parties advised the plea judge that if they could not agree on the amount of forfeiture pursuant to the racketeering conviction (see N.J.S.A. 2C:41-3b), the "forfeiture issue would be brought before a jury."*fn1
At the time of plea, defendant admitted his involvement with his brother Dennis and others "in the illegal manufacture and distribution of CDS" and "particularly methamphetamine during the time period as stated in the indictment, roughly 1983 through 1987." He further admitted "the ordering of certain precursors for the manufacture of methamphetamine" including participation in the purchase of "approximately five gallons" of P2P and the purchases of P2P from his brother Dennis. He further admitted manufacture and distribution with others for profit and income tax evasion between January 1, 1984 and April 15, 1985.
The parties were unable to reach an agreement regarding the amount of forfeiture, and that matter was ultimately tried to a
jury. The jury returned a special verdict, as required by N.J.S.A. 2C:41-3f, finding that defendant had "an interest, directly or indirectly," in the marital residence at 8 Kristin Way, Hamilton Township, a condominium unit in the Grandville Arms, 516 Silver Court, Hamilton Township, and $298,917 in currency, and that his interest in each "derived, came from, or resulted from proceeds, monies or cash obtained or realized directly or indirectly as a result of [his] admitted violation of the New Jersey racketeering law." The jury further concluded that "[a] hundred percent" of each of these items should be forfeited.*fn2
Consistent with the negotiated plea, defendant was subsequently sentenced to concurrent ten-year sentences on counts one and two, with a four-year period of parole ineligibility on count one. On count three, a term of eighteen months was imposed, to be served consecutively with the sentences on counts one and two.*fn3 No final judgment of forfeiture pursuant to N.J.S.A. 2C:41-3c is included in the record, although an order restraining the sale, conveyance or disposition of the real properties
has been entered. We are told that actual forfeiture has been stayed pending this appeal.
On this appeal, addressed only to the forfeiture issues, defendant argues:
POINT I DEFENSE COUNSEL WAS INEFFECTIVE AND THUS THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS WELL AS ARTICLE 1 PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.
POINT II THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ADJOURNMENT.
POINT III PERMITTING DENNIS SPARANO TO TESTIFY AS AN EXPERT WITNESS WAS PLAIN ERROR.
POINT IV THE TRIAL COURT ERRED IN QUALIFYING AND PERMITTING INVESTIGATOR ANTHONY HIGHAM TO TESTIFY.
POINT V THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
POINT VI THE STATE'S CLOSING ARGUMENT EXCEEDED ALL BOUNDS [OF] PROPRIETY THEREBY PREJUDICING DEFENDANT'S FUNDAMENTAL RIGHT TO A FAIR TRIAL.
POINT VII THE TRIAL COURT ERRED IN DECLINING TO CHARGE A PRESUMPTION OF NON-FORFEITURE.
POINT VIII THE TRIAL COURT'S CHARGE IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT.
Our review of the record leads us to conclude that these contentions and the arguments in support of them are without merit and do not warrant extended discussion, R. 2:11-3(e)(2), except as noted herein with respect to some aspects of several of the points.
The primary issue in the trial was whether defendant's interest in the $298,000 cash and the real properties were directly or indirectly derived from his admitted illegal drug business. The State endeavored to prove that defendant's expenditures during the period covered by the indictment far exceeded his known legitimate sources of income, while defendant contended that he and his wife, Donna, had generated considerable (although not necessarily reported) cash income from legitimate business ...