On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Garibaldi, J. Justices Pollock, O'hern and Coleman join in Justice GARIBALDI's opinion. Justice Stein filed a separate Dissenting opinion in which Justice Handler joins. Chief Justice Wilentz did not participate.
The opinion of the court was delivered by: Garibaldi
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
STATE OF NEW JERSEY V. HARRY KITTRELL (A-107-95)
Argued February 13, 1996 -- Decided July 3, 1996
GARIBALDI, J., writing for a majority of the Court.
The issue on appeal is whether the cutting and repackaging of crack cocaine inside an apartment of another is sufficient to sustain a conviction under N.J.S.A. 2C:35-4, the statute entitled "Maintaining or Operating a Controlled Dangerous Substance Production Facility."
Detective Robert Wright of the Hackensack Police Department, Narcotics Division, had Harry Kittrell under surveillance for over a year. During that time, Detective Wright observed Kittrell standing outside an apartment complex located at 69 Railroad Avenue in Hackensack, even though Kittrell did not live at that location. Kittrell was also frequently observed in the hallway of the building on 69 Railroad Avenue or entering apartment A-1 on the first floor. Albertina Brown lived in Apt. A-1. The building on 69 Railroad Avenue is considered by police to be in a high drug distribution area.
Based on confidential information from informants and his own observations of Kittrell, Detective Wright sought an obtained a search warrant for Apt. A-1 on September 13, 1991. Prior to the apartment search, Detective Wright removed four small blue bags of what appeared to be cocaine from underneath an air conditioner that Kittrell had been continually observed reaching beneath. After Kittrell was arrested, the police conducted their search of Albertina Brown's apartment. In the bathroom, an officer found a brown eyeglass holder on top of the medicine cabinet that contained small plastic bags of what appeared to be cocaine. No other contraband was found in the apartment. The total amount of cocaine retrieved from the apartment and from underneath the air conditioner was 3.83 grams.
Albertina Brown was arrested and brought to police headquarters. At headquarters, Brown gave a statement to police. She claimed, among other things, that Kittrell had used her apartment in the past to cut up and package crack cocaine that he had purchased in New York.
Kittrell and Albertina Brown were indicted on December 5, 1991. Kittrell was charged with maintaining or operating a controlled dangerous substance (CDS) facility (count one); possession of CDS, cocaine (counts three and five); and possession of cocaine with intent distribute (counts two and four). Albertina Brown pled guilty to reduced charges and was a witness for the State. However, when she was called to testify, Brown repudiated the statements she had given at police headquarters in respect of Kittrell using her apartment to cut up and package cocaine. The trial court allowed the State to introduce Brown's statement made at the police station as a prior inconsistent statement.
The jury returned a verdict of guilty on all counts. After granting the State's application for an extended term, the court sentenced Kittrell on count one to sixty years imprisonment with thirty years of parole ineligibility. On each of the remaining counts, the court imposed a concurrent sentence of eight years with three years of parole ineligibility. The sentence was ordered to run concurrently with a ten year extended term sentence for distribution of cocaine that Kittrell was already serving.
The Appellate Division affirmed Kittrell's convictions but ordered that the possessory offenses (counts two through five) should merge with count one, the maintaining a production facility offense. The Appellate Division did find that Kittrell's sentence was excessive and, accordingly, remanded for resentencing on the production facility charge, the merger of the possession and possession with intent charges, and a determination of the amount of gap time credit that Kittrell was entitled to receive.
The Supreme Court granted Kittrell's petition for certification.
Cutting and repackaging crack cocaine inside the apartment of another is sufficient to sustain a conviction under N.J.S.A. 2C:35-4. Based on a review of the evidence and applying the statute as written, there is sufficient evidence to convict Kittrell under N.J.S.A. 2C:35-4.
1. For Kittrell to be convicted under N.J.S.A. 2C:35-4, he must "maintain a facility" that "manufactures" a controlled dangerous substance. To establish "maintenance," there must be some evidence of continuity in Kittrell's use of Brown's apartment to manufacture crack cocaine. According to the plain language of the statute, Kittrell's conduct falls within its purview. Based on Brown's initial statement, a reasonable inference can be drawn that Kittrell maintained her apartment as a packaging or repackaging facility. His continued use of her apartment as a facility to cut up, package and repackage crack cocaine constitutes the maintenance of a drug production facility that is prohibited under N.J.S.A. 2C:35-4. (pp. 9-13)
2. The legislative history of N.J.S.A. 2C:35-4 supports the Conclusion that Kittrell's acts in Brown's apartment violate the statute. The language of N.J.S.A. 2C:35-4 identifies all of the material elements necessary to convey the Legislature's intent. It states that "any premises" used to "manufacture" controlled dangerous substances, which includes "packaging and repackaging," constitutes a CDS production facility. The Legislature did not intend that the statute be applied only to individuals who operate "commercial" manufacturing facilities. The Commentary to the statute clearly expresses the Legislature's intention that private residences used to produce crack fall within the purview of the statute. Thus, judicial construction need not disturb the plain meaning of the statute, which operates to criminalize the production, for distribution, of controlled dangerous substances in any premises. (pp. 13-17)
3. Kittrell claims that N.J.S.A. 2C:35-4 is unconstitutionally vague as applied to him because his alleged conduct would also support a conviction under N.J.S.A. 2C:35-5, the "manufacturing and distribution" statute, a third-degree crime with must less severe penalties. Because the provisions at issue specify the activity proscribed and the penalties available on conviction, the notice requirements of the Due Process Clause are satisfied. Therefore, despite overlapping with the manufacturing and distributing statute, the production facility statute as written is not unconstitutionally vague. (pp. 17-22)
4. The State's evidence, viewed in the light most favorable to the State, could sustain a reasonable inference that Kittrell brought crack to Albertina Brown's apartment more than once and that he continued to use her apartment to store the cocaine, cut the crack into smaller pieces, and place the crack in small bags for later distribution. The evidence, combined with reasonable inferences arising therefrom, would clearly fall within the plain language of N.J.S.A. 2C:35-4 and are sufficient to sustain a conviction under that statute.
5. Kittrell's claim that the reasonable doubt charge was unconstitutional because of the Judge's references to "moral certainty" is without merit. The qualifying phrases in the charge ensured that the jury understood that moral certainty was not to be disassociated from the evidence in the case. (pp. 27-29)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, Dissenting, in which JUSTICE HANDLER joins, would reverse because: 1) the evidence is insufficient to support a conviction; and 2) the trial court's failure to instruct the jury on a requirement of continuity in applying N.J.S.A. 2C:35-4 constitutes plain error. Moreover, the Court's affirmance of this first-degree conviction on such a shaky record will encourage prosecutors to use the production facility law selectively and arbitrarily to target disfavored drug defendants.
The opinion of the Court was delivered by
This appeal concerns the application of N.J.S.A. 2C:35-4, entitled, "Maintaining or operating a controlled dangerous substance production facility" and requires the Court to determine whether cutting and repackaging crack cocaine inside the apartment of another is sufficient to sustain a conviction under that statute.
For over a year, and usually at night, Detective Robert Wright of the Hackensack Police Department, Narcotics Division, observed defendant, Harry Kittrell, standing outside an apartment complex located at 69 Railroad Avenue in Hackensack, notwithstanding the fact that his last known address was on Pine Street (located at the opposite side of the city). Detective Wright also frequently observed defendant in the hallways of the building on 69 Railroad Avenue or entering apartment A-1 on the first floor. Albertina Brown lived in Apt. A-1.
The apartment complex located at 69 Railroad Avenue is a three story walk-up with six apartments on each floor. The only entrance to the building is located approximately 15-20 feet from the street and is well illuminated by street lights. The area surrounding and including 69 Railroad Avenue is located in a high drug distribution area and the Hackensack Narcotics Division has made hundreds of drug arrests there. Based upon confidential information from informants and his own observations of defendant, Detective Wright sought and obtained a search warrant for Apt. A-1 on September 13, 1991.
At trial, Detective Wright testified that at approximately 11:30 p.m on September 13, 1991, he, along with at least five other officers, began surveillance of 69 Railroad Avenue. Detective Wright was stationed with Detective Sergeant Albert Gutierrez in a van parked about fifty feet from the entrance of 69 Railroad Avenue. The officers were equipped with binoculars to conduct the surveillance.
Near midnight, a brown car driven by a female, who was later identified as Makeba Drayton, and with defendant in the passenger seat, arrived and parked in front of the building. The officers in the van stated that defendant exited the car and entered the building, emerging a few minutes later. The officers testified that defendant placed an object on a ledge under an air conditioner in a window to Albertina Brown's apartment before returning to the car.
Officer Gutierrez testified that an unidentified male approached the passenger side of Drayton's car approximately ten minutes after defendant exited the building and re-entered the car. After a brief conversation between defendant and the male, defendant exited the car, went to the air conditioner, removed an object from underneath it, walked back to the other man, and exchanged whatever he had removed from under the air conditioner for "what appeared to be money." Defendant then rejoined Drayton in the car.
Officer Wright testified that he observed a similar transaction around 12:20 a.m. The detective testified that at about 12:20 a.m. on what was then September 14, 1991, a second unknown man, wearing a yellow shirt, walked up to the passenger side of Drayton's car and spoke to defendant. Again, after a brief conversation, defendant exited the car, walked to the air conditioner and removed something. After observing this, Detective Wright radioed to other police units for assistance in executing the warrant.
Two officers and a detective responded to Wright's call. One officer detained defendant, and Detective Wright removed four small blue bags of what appeared to be cocaine from underneath the air conditioner. The officers arrested defendant after a cursory search uncovered $15 and a pager.
Following defendant's arrest, the police conducted a search of Albertina Brown's apartment. The police discovered Albertina Brown, Robert Clark (defendant's cousin) and a small child inside apartment A-1. These individuals were detained in the living room while the officers conducted a search of the apartment. Officer Kevin O'Boyle conducted a search of Brown's bathroom and found a brown eyeglass holder on the top of the medicine cabinet. He discovered a number of small plastic bags containing what appeared to be cocaine inside the holder. No other contraband was found in the apartment.
A laboratory certificate described the substances seized from the eyeglass holder as: (1) 22 blue topped vials, containing a total of 1.53 grams of cocaine; (2) 16 yellow plastic bags, totalling 1.2 grams of cocaine; (3) 50 blue plastic bags totalling 1.08 grams of cocaine; and (4) a bag of marijuana certified to contain .53 grams. The four blue bags retrieved from under the air conditioner were certified to contain a total of .10 grams of cocaine. The total amount of cocaine retrieved from the apartment and from underneath the air conditioner was 3.83 grams.
Albertina Brown was arrested and brought to police headquarters. Robert Clark was released. At the police headquarters, Brown gave the following statement to the police:
I was in my apartment and you guys came in. You guys found some crack in my bathroom. The crack was not mine. It was Harry's. He just left the apartment. I'm not going to take the weight this time for Harry. He was in my apartment tonight and was in my bathroom. I let him use my apartment to cut up his crack but none of the crack you found is mine. I used to sell crack for Harry but I got caught and am doing probation. I am not going to take the weight for Harry again. He makes all the money and I go to jail. The crack you found is Harry's. He buys it in New York and cuts it up in my apartment. I do not sell crack anymore. He likes to keep his stash in my apartment. He keeps a small supply on him, or in my mailbox, or under the air conditioner. If he gets caught he would only be caught with possession instead of distribution. He has people selling for him all around town. He likes to threaten everyone in the projects. But I'm not afraid. I'm not going to take his weight. Everyone that sells for Harry is afraid to testify against him because of his size and he has guns. I ain't afraid to testify. No way am I going to take his weight again.
On December 5, 1991, the Grand Jury indicted defendant, Harry Kittrell, and co-defendant, Albertina Brown. The indictment charged defendant with maintaining or operating a controlled dangerous substance (CDS) facility, contrary to N.J.S.A. 2C:35-4 (count one); possession of a CDS, cocaine, contrary to N.J.S.A. 2C:35-10a(1) (counts three and five); and possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 5b(3) (counts two and four).
Co-defendant Brown pled guilty to reduced charges and was a witness for the state. However, when Brown was called to testify, she repudiated the statement she had given at police headquarters and contended that Wright, after reading her rights to her, had her sign a blank piece of paper. She understood that if she signed the paper she could leave the headquarters. She denied telling Wright that defendant left crack in her apartment on the night of the arrest. Brown did testify, however, that defendant was in her apartment earlier in the day, but did not remember whether he had used the bathroom where the narcotics were found. Brown also denied telling Wright that defendant had placed crack under her air conditioner, and in fact denied having an air conditioner.
Brown further denied that either she or defendant used the apartment to distribute drugs. Brown did testify, however, that during the day of the search defendant came into her apartment with a piece of crack cocaine "no bigger than [your thumb]" and "He didn't package into small bags, just cut it up and left." According to Brown, after defendant cut the crack cocaine on that occasion, "he left the crumbs [that] were on the plate" for Brown "because [she] smokes." Brown testified that on that occasion, but no other, she had allowed defendant to use her apartment in exchange for crack, "because [she] didn't have no money, and...wanted a hit." She testified that defendant put all of the pieces into one bag. Brown denied that defendant had repackaged what he had cut up into smaller bags. She further denied that the drugs that were seized in her apartment were cut in the apartment. The trial court allowed the State at trial to introduce Brown's statement at the police station as a prior inconsistent statement. The defendant did not testify at trial, but Makeda Dayton, the driver of the car, testified that defendant never went in the apartment building that night.
The State's expert at trial, Bergen County Investigator Kerriann Gianotti, testified that the vials found in Apt. A-1 probably sold for $5 to $15 each, while the bags sold from between $3 and $15 per bag. Gianotti further testified that the cocaine that was seized was "definitely" possessed with intent to distribute, while she believed the marijuana was for personal use. She added that crack cocaine is most frequently, but not always, produced and repackaged in the same location. Gianotti explained that crack is easy to manufacture, with ...