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State v. Afanador

Decided: October 27, 1993.


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Pollock and Garibaldi. For reversal and remandment -- Justices Handler, O'Hern and Stein. The opinion of the Court was delivered by Clifford, J. Chief Justice Wilentz and Justices Pollock and Garibaldi join in this opinion. Justice O'Hern has filed a separate dissenting opinion in which Justices Handler and Stein join.



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Defendant, Moises Afanador, challenges the Appellate Division's affirmance of his conviction for violation of N.J.S.A. 2C:35-3, the so-called "drug kingpin" statute. As required by the sentencing provision of that statute, the trial court sentenced defendant to life imprisonment with a twenty-five-year period of parole ineligibility. This Court granted certification, 130 N.J. 601, 617 A.2d 1222 (1992), limited to consideration of defendant's contentions that N.J.S.A. 2C:35-3 is (1) unconstitutionally vague on its face, or (2) vague as applied to defendant's conduct. In a well-reasoned opinion the Appellate Division rejected those challenges. We affirm.


We note preliminarily a significant feature of defendant's arguments. In resolving whether N.J.S.A. 2C:35-3 is facially vague, we need not refer to the facts -- we need only read the statute. However, for purposes of defendant's contention that the statute is vague as applied to his conduct, we accept as true the State's evidence concerning defendant's actions, viewing that evidence in the light most beneficial to the State's position. Although the defense witnesses' testimony, especially that of defendant himself, contrasted sharply with that of the State's witnesses, in deciding an as-applied challenge a court presumes that a jury accepted the State's evidence. The only question relevant in respect of a vague-as-applied challenge is whether the statute clearly extends to the acts that the State alleges defendant committed. We therefore summarize the State's evidence at trial.

We focus on defendant's participation in four drug transactions with Detective Ruiz, an undercover officer in the Pleasantville Police Department. In the first transaction, on September 18, 1987, Ruiz, accompanied by an informant who knew defendant, [134 NJ Page 166]

arrived at Afanador's home. Claiming to be a drug dealer, Ruiz asked defendant to sell him a half-ounce of cocaine. Afanador dispatched a young woman present at his home to find a scale, whereupon Ruiz engaged defendant in a conversation in the course of which he said that he and some other persons wished to go into the drug business. In answer, Afanador warned Ruiz that "the business was risky" and that defendant had approximately $2,300 "on the street" that people owed him as a result of defendant's "business." While the conversation was taking place, Ruiz noticed significant "traffic in and out of the house." (Another officer had conducted a surveillance of defendant's home for three-and-one-half hours on the previous day; at trial that officer testified that during the surveillance at least eleven cars had pulled into defendant's driveway only to depart in under fifteen minutes.) At one point during his discussion with Ruiz, defendant directed his nephew, who was introduced to Ruiz as "Popo," to divert a black car that was attempting to pull into the driveway. Ruiz testified that Popo was often present on other occasions when the officer had dealt with defendant, and that defendant had at times given Popo instructions.

When a scale could not be found, defendant removed from his pants pocket a plastic bag containing one ounce of cocaine. After telling Ruiz that he could determine a half-ounce by sight, Afanador separated the cocaine into two approximately-equal piles and gave the cocaine to the officer in exchange for $700 in cash.

The second transaction took place on September 23, 1987. At 6:00 p.m. Ruiz again arrived at defendant's home and asked to purchase one ounce of cocaine. Defendant told Ruiz that he would sell him an ounce for $1,200 and that the officer should return between 8:00 and 8:30 p.m. When Ruiz returned at 8:15, Afanador's wife directed the officer to the back door of the house. Defendant appeared and led Ruiz into a basement where he removed from an empty light-bulb box a bag containing an ounce of cocaine, which he gave to Ruiz in return for $1,200 in cash. Defendant then freebased cocaine in the officer's presence. During a conversation with Ruiz at that time, Afanador claimed that {PA}

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he had been in the drug business for twenty years. Ruiz inquired about the price for four-and-one-half ounces of cocaine. Defendant quoted a price of $3,700 and told Ruiz that he would need six hours advance notice to secure that amount of cocaine.

The third transaction began with Ruiz's return to defendant's home on the morning of October 2nd. Popo and a person named "Cholo" -- from whom the officer had made undercover buys in the past -- were also present. Defendant and Ruiz thereafter stepped outside the house, where Ruiz told defendant that he wanted to buy two ounces of cocaine. When the officer asked Afanador "if there was any problem with that," defendant said "No."

Defendant then drove with Ruiz to the Florence Park Apartments, where they met Johnny Montalvo, who is also known as "Johnny Afanador." Defendant asked Montalvo if Montalvo "was ready," and after receiving an affirmative response told Montalvo to meet him at "the black girl's house," but quickly changed his mind and told Montalvo to meet him at defendant's house. Defendant and Ruiz next drove to the Walnut Manor Apartments, where a black male approached defendant's car and asked defendant "at what time he was going to come around with the stuff." Later another male, whom Ruiz recognized as Pedro Ortiz (from whom the officer had made undercover buys in the past), approached the car, and defendant told Ortiz that "it was in." Ortiz asked if it was "okay if he would go over to the defendant's house later."

Ruiz and defendant returned to defendant's home, and Montalvo arrived a short time later. In Afanador's living room Montalvo handed two ounces of cocaine to defendant, who promptly handed it to Ruiz. Defendant directed Ruiz to give the $1,200 to Montalvo and told Montalvo to count it. Montalvo kept that money, and defendant gave Montalvo an additional $100 in twenty-dollar bills.

Ruiz then made overtures leading to the fourth transaction. He told Afanador that he and some other persons were interested in purchasing $25,000 worth of cocaine. Defendant asked Ruiz when he would need the drugs and inquired of Montalvo if he "would be able to go up there" by that date. At that time defendant again spoke of people owing him money because of his business, this {PA}

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time claiming that "he had $27,000 in the street that people owed him."

When Ruiz met with defendant again on October 21st, defendant told him that "the package * * * would be coming down from New York" on the 22nd and that defendant's "uncle," Osualdo Acobes, was acting as the courier. At some point Ruiz had reduced the amount of his request from $25,000 to $10,000 worth of cocaine. Defendant instructed Ruiz to have $10,000 in cash the following day.

Acobes arrived at Afanador's home at 5:00 p.m. on October 22nd. After defendant located a scale and placed it in the trunk of Acobes' car, he, Acobes, and Ruiz proceeded to the Florence Park Apartments. They entered one of the apartments and met a person introduced to Ruiz as "Nando." Acobes placed a scale and a brown, square package on the dining-room table. Defendant stood observing that activity. Acobes requested the money from the officer, but Ruiz, who had instructions from his superiors to consummate the transaction at defendant's home, argued that he had left the $10,000 at Afanador's home and insisted that the parties complete the transaction there. Nando accompanied Ruiz to defendant's home. Once there, Nando and Ruiz agreed that Nando would count the money, that the two of them would return to the Florence Park Apartments at which time Nando would verify that defendant had the correct amount of money, and that the package would thereafter be delivered to Ruiz at defendant's home.

When defendant, Nando, Acobes, and Ruiz later returned to defendant's home as agreed, Ruiz gave his fellow officers a prearranged signal and they moved in to arrest. A search of the trunk of Acobes' car revealed a brown paper bag containing 535 grams of cocaine. Laboratory tests fixed the cocaine's purity at eighty-four percent.


A jury convicted defendant of violating the "drug kingpin" statute, N.J.S.A. 2C:35-3, which provides in pertinent part:


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A person is a leader of a narcotics trafficking network if he conspires with others 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, lysergic acid diethylamide, phencyclidine or any controlled dangerous substance classified in Schedule I or II, or any controlled substance analog thereof. Leader of narcotics trafficking network is a crime of the first degree and upon conviction thereof * * * a person shall be sentenced to an ordinary term of life imprisonment during which the person must serve 25 years before being eligible for parole. * * *.

Notwithstanding the provisions of N.J.S. 2C:1-8 a conviction of leader of narcotics trafficking network shall not merge with the conviction for any offense [that] is the object of the conspiracy. * * *.

It shall not be necessary in any prosecution under this section for the State to prove that any intended profit was actually realized. The trier of fact may infer that a particular scheme or course of conduct was undertaken for profit from all of the attendant circumstances, including but not limited to the number of persons involved in the scheme or course of conduct, the actor's net worth and his expenditures in relation to his legitimate sources of income, the amount or purity of the specified controlled dangerous substance or controlled dangerous substance analog involved, or the amount of cash or currency involved.

The statute was enacted as part of the "Comprehensive Drug Reform Act of 1986," L. 1987, c. 106; N.J.S.A. 2C:35-1 to -23. The introduction to that Act noted that

to be effective, the battle against drug abuse and drug-related crime must be waged aggressively at every level along the drug distribution chain, but in particular, our criminal laws must target for expedited prosecution and enhanced punishment those repeat drug offenders and upper echelon members of organized narcotics trafficking networks who pose the greatest danger to society. * * * [T]o ensure the most efficient and effective dedication of limited investigative, prosecutorial, judicial and correctional resources, it is the policy of this State to distinguish between drug offenders based on the seriousness of the offense, considering principally the nature, quantity and purity of the controlled substance involved, and the role of the actor in the overall drug distribution network. It is the intention of the Legislature to provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders * * *.

[ N.J.S.A. 2C:35-1.1c.]

Although the statute is hardly a model of precise draftsmanship, we nevertheless are satisfied that it sufficiently describes the conduct that it proscribes. We therefore hold that it is not unconstitutionally vague, either facially or as applied to defendant's conduct. [134 NJ Page 170] -A-

In Town Tobacconist v. Kimmelman, 94 N.J. 85, 462 A.2d 573 (1983), the Court observed that

[c]lear and comprehensible legislation is a fundamental prerequisite of due process of law, especially where criminal responsibility is involved. Vague laws are unconstitutional even if they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position. Vague laws deprive citizens of adequate notice of proscribed conduct, and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement.

[ Id. at 118, 462 A.2d 573 (citations omitted).]

For that reason, courts give criminal laws sharper scrutiny and more exacting and critical assessment under the vagueness doctrine than they give to civil enactments. State v. Cameron, 100 N.J. 586, 592, 498 A.2d 1217 (1985) (citing State v. Lee, 96 N.J. 156, 167, 475 A.2d 31 (1984); Town Tobacconist, supra, 94 N.J. at 119 n. 16, 462 A.2d 573).

A criminal statute violates due process if persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926). As the United States Supreme Court has noted, "The degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depend in part on the nature of the enactment." Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362, 371, reh'g denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476, on remand, 688 F. 2d 842 (7th Cir.1982). We appreciate full well the severe nature of the penalty for violation of N.J.S.A. 2C:35-3 -- life, with a twenty-five-year parole disqualifier -- and have given the gravity of that sanction due consideration in reviewing defendant's appeal.

"Facial invalidity" occurs when a statute "is 'impermissibly vague in all its applications,' that is, there is no conduct that it proscribes with sufficient clarity." Cameron, supra, 100 N.J. at 593, 498 A.2d 1217 (quoting ...

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