On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, Long and R.s. Cohen. King, P.J.A.D.
[250 NJSuper Page 41] This appeal questions the constitutionality of defendant's conviction for violation of the so-called "kingpin" section of our narcotics "trafficking network" statutes which mandates a life sentence with a mandatory term of 25 years without parole. N.J.S.A. 2C:35-3; L. 1987, c. 106, § 1, effective on July 9, 1987. Defendant contends that the judge committed "plain error" and violated the Ex Post Facto Clause,*fn1 in not specifically instructing the jury that he must be found guilty of the predicate acts which invoke the "kingpin" sanctions after the effective date of the Act, and not simply "during the course of the conspiracy" which the State claimed began 11 months before the effective date of the Act and persisted for about a month or so after that date. We agree, reverse the conviction on the "kingpin" count only, and remand for a new trial.
In October 1987 defendant Alfred Ricci was indicted in a two-count indictment for narcotics violations. The first count charged a conspiracy between August 1986 and August 1987 to knowingly or purposely manufacture, distribute, dispense, possess or to have under his control with intent to distribute, manufacture or dispense methamphetamine in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1). The second count charged a conspiracy as an organizer, supervisor, financier, or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this State methamphetamine in violation of N.J.S.A. 2C:35-3, the so-called "kingpin" statute. Seventeen other defendants were indicted separately on these same charges arising out of the conspiracy alleged to have occurred between August 1986 and August 1987. The indictments were later joined and the other defendants either pled guilty or obtained dismissals. The defendant-appellant Ricci eventually was tried alone. Two coconspirators, Pasha and Brown, testified against defendant in exchange for favorable dispositions on their charges.
The jury convicted defendant Ricci on both counts. The judge imposed a sentence of life with a 25-year parole ineligibility term under the "kingpin" statute. N.J.S.A. 2C:35-3 (Count Two). On the routine conspiracy count, the judge imposed a concurrent five-year term. N.J.S.A. 2C:35-5a(1) (Count One). Defendant's motion to reduce his sentence failed.
Defendant raises numerous alleged errors, mostly as "plain error," under ten point headings on this appeal. They include: (1) the noted ex post facto challenges because of the effective date of the "kingpin" statute, July 9, 1987, during the term of the conspiracy, (2) error in the admissibility of certain evidence, (3) termination or abandonment of the conspiracy as a matter of law, (4) a fatal defect in the indictment, (5) prosecutorial misconduct (6) ineffective assistance of counsel, (6) and Cruel and Unusual Punishment, Due Process and Equal Protection Clause challenges. We conclude that all are clearly without merit save
one point. R. 2:11-3(e)(2). As to that point, as noted, we reverse and remand the conviction under the "kingpin" statute which carries the severely enhanced penalty of life with a mandatory 25-year term. Defendant may be retried on that count.
On his persuasive point, defendant contends that the jury "did not receive a limiting charge and it cannot be determined whether the jury determined that defendant violated N.J.S.A. 2C:35-3 and N.J.S.A. 2C:35-5a(1), before the effective date [of the statute], thus prejudicing the defendant." The point was concededly "not raised below." R. 2:6-2(a)(1). We entertain the point because of the obvious impact of the sentence differential on this defendant. R. 2:10-2; State v. Melvin, 65 N.J. 1, 18-19, 319 A.2d 450 (1974) (test is "real possibility of injustice").
This case involved a conspiracy to manufacture and distribute methamphetamine ("speed") in the Delaware Valley. The conspiracy focused on an apartment in Washington Township, Gloucester County, New Jersey and defendant's restaurant and apartment at 19th and Snyder Streets in South Philadelphia. The State claimed that the term of the conspiracy embraced about one year, from August 1986 to August 1987.
Our concern is energized by the effective date of the "kingpin" statute, July 9, 1987, which triggered enhanced penalties for an "organizer, supervisor, financier or manager" of a drug conspiracy. N.J.S.A. 2C:35-3. The "kingpin" statute was part of the "Comprehensive Drug Reform Act of 1986," N.J.S.A. 2C:35-1 to -23. The Act was conceived to combat the perceived increasing menace of narcotics traffic in this State. N.J.S.A. 2C:35-1.1(c) and (d).
The evidence presented by the State established the inception of the conspiracy in the summer of 1986 when Brown and Pasha first met Ricci in his bar in South Philadelphia and discussed manufacturing "speed." Equipment was secured and the ...