On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication October 19, 1995.
Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by BAIME, J.A.D.
A Bergen County grand jury charged defendant along with Hector Matias, Eddie Rosario and Jaime Negroni with distributing between one-half ounce and five ounces of cocaine (N.J.S.A. 2C:35-5a(1) and 5b(2)), distributing cocaine in a school zone (N.J.S.A. 2C:35-5a and -7), possession of cocaine (N.J.S.A. 2C:35-10a(1)), possession with intent to distribute over five ounces of cocaine (N.J.S.A. 2C:35-5a(1) and 5b(1)), possession of the same drug with intent to distribute in a school zone (N.J.S.A. 2C:35-5a and -7), possession of the same drug (N.J.S.A. 2C:35-10a(1)) and conspiracy to violate the Comprehensive Drug Reform Act (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-1). The indictment also charged Rosario and Negroni with other crimes. Matias was convicted on several of the counts in a separate trial. Rosario then pled guilty and agreed to testify against his codefendants. Following a protracted trial, defendant was found guilty of conspiracy but was acquitted of the remaining charges. Negroni was convicted on several of the counts and was acquitted on others. After denying defendant's motion for a judgment of acquittal, the trial Judge imposed a custodial term of five years.
Defendant appeals, contending (1) the trial Judge erroneously refused to instruct the jury in accordance with defendant's requests to charge on statutory entrapment, (2) due process entrapment was established as a matter of law, and (3) the trial Judge erred by propounding special interrogatories to the jury in the verdict sheet. We find no merit in these arguments and affirm defendant's conviction.
We need not recount the facts at length. Investigator Edward DiMaggio of the Bergen County Narcotics Task Force first met defendant while purchasing ice cream at a Dairy Queen she owned. The two engaged in conversation for approximately twenty minutes. Defendant asked numerous personal questions concerning DiMaggio's employment and marital status. Although the investigator had no reason to suspect defendant of criminal activity, in order to protect his undercover status, he claimed that he had just flown to New Jersey from Florida where he had left his girlfriend. DiMaggio added that he had not worked in a long time. Defendant pointedly asked DiMaggio why he had left Florida in "such a hurry." The nature of defendant's inquiry raised suspicions in DiMaggio's mind, but, after accepting her business card, the investigator made no further effort to continue the conversation.
Approximately a week later, however, DiMaggio telephoned defendant. In the course of their conversation, defendant repeated her questions regarding DiMaggio's lack of employment and ultimately asked him whether he was a drug dealer. DiMaggio explained that he had sold cocaine in Miami, but had no supplies or connections in New Jersey. Defendant then offered to assist DiMaggio in obtaining a supplier.
Defendant later introduced DiMaggio to Rosario. The three met at the Dairy Queen where they discussed purchasing varying amounts of cocaine. There followed a series of transactions in which DiMaggio and other members of the narcotics task force purchased increasingly large amounts of cocaine from Rosario, Matias and Negroni. Rosario testified at trial that defendant asked him what she would receive from the first deal. Although Rosario promised to give defendant cocaine, he never delivered, choosing to share the profits with Matias and Negroni instead.
Arrangements were made for DiMaggio to purchase a full kilo of cocaine. However, defendant learned that the BMW driven by DiMaggio was listed as "not on file" with the Division of Motor Vehicles. She also found that a telephone number given by one of the agents who had accompanied DiMaggio, Michael Rodriguez, belonged to the Bergen County Narcotics Task Force. Defendant immediately confronted DiMaggio with what she had learned, and the two agreed to meet at the Dairy Queen.
Lieutenant John Quigley, posing as a member of DiMaggio's drug network, accompanied DiMaggio to the meeting. In order to shift suspicion from themselves, Quigley and DiMaggio told defendant they suspected Rodriguez was either a police officer or an informant. Although defendant expressed concerns about being arrested and jeopardizing her suppliers, Quigley and DiMaggio apparently managed to alleviate her suspicions.
On the next day, Quigley met alone with defendant to discuss the purchase of the kilo. Although defendant appeared apprehensive, she discussed the price of the cocaine and how much money she wanted for her role in the transaction. She specifically demanded $2,500 and a quantity of cocaine for her personal use. In later meetings with defendant, Quigley explained that he had phased DiMaggio out of the transaction because of DiMaggio's friendship with Rodriguez. He subsequently showed defendant a briefcase containing $30,500. After seeing the money, defendant, in Quigley's presence, telephoned Rosario and arranged for the sale of the cocaine. Defendant was later given a "sample" of the kilo.
Arrests were made when Rosario, Matias, and Negroni attempted to deliver the cocaine to Quigley. The investigators retrieved a knapsack containing over two pounds of the drug. In an oral statement later given to the police, defendant admitted her role in the conspiracy.
Defendant at trial did not contest most of the State's evidence, but relied instead on the defense of entrapment. She claimed that she had been seduced by DiMaggio, who ultimately persuaded her to introduce him to a drug supplier. According to her testimony, she had never sold drugs, but knew at least one dealer who had previously supplied her with cocaine. Defendant claimed that she reluctantly participated in the drug ...