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State v. Afanador

July 23, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MOISES AFANADOR, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by O'hern, J. Chief Justice Poritz and Justices Handler, Pollock, Garibaldi, Stein, and Coleman join in Justice O'HERN's opinion.

The opinion of the court was delivered by: O'hern

(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. Moises Afanador (A-146-96)

Argued April 28, 1997 -- Decided July 23, 1997

O'HERN, J., writing for a unanimous Court.

In State v. Alexander, this Court held that in order to convict a defendant as a drug kingpin under N.J.S.A. 2C:35-3, a jury should be instructed that it must find that the defendant held an "upper echelon" or "high level" role as a leader of a drug trafficking network. The issues posed in this appeal are: 1) whether the principles of Alexander should apply retroactively to this case, which was tried before Alexander was decided; 2) whether Afanador's petition seeking post-conviction relief from his conviction as a kingpin on the basis of Alexander is procedurally barred; and 3) whether such relief is warranted.

A more complete recitation of the facts is set forth in the Court's October 1993 opinion in State v. Afanador (Afanador I). Afanador was convicted in 1988 under the drug kingpin statute for his participation in four drug transactions with an undercover detective. In March 1989, Afanador was sentenced to two consecutive terms of life imprisonment, each with a twenty-five year period of parole ineligibility. On appeal, Afanador, challenged the constitutionality of the kingpin statute, the excessiveness of his sentence, and the competency of his trial counsel. In 1991, the Appellate Division rejected the challenges to the constitutionality of the kingpin statute and dismissed the ineffective-assistance-of-counsel claim. The court, however, remanded the sentence for reconsideration of the two consecutive life terms imposed. On remand in May 1992, the trial court reduced Afanador's sentence to one term of life imprisonment with a thirty-year period of parole ineligibility. Other sentences were made concurrent.

In September 1992, the Supreme Court granted Afanador's pro se petition for certification. Afanador argued, among other things, that the jury charge was not consistent with the legislative intent of the drug kingpin statute because the charge had not required a finding that he was an upper-echelon member of the drug network. Pursuant to the Court's request, Afanador was assigned pro bono counsel who began representing Afanador in October 1992. In November 1992, the Court amended its Order granting certification, limiting its review to the constitutionality of the drug kingpin statute. Finally, in October 1993, the Court held that the drug kingpin statute was facially constitutional.

Because the proper jury instruction issue was pending consideration by the Court in State v. Alexander, the Court deferred this same issue raised in Afanador I. In July 1994, the Court held in Alexander that trial courts must instruct juries in a manner consistent with the Legislature. As such, courts should instruct the jury that to meet the definition of a kingpin, a defendant's position and status must be at a superior level in relation to others in the network and the defendant has exercised in that capacity supervisory power or control over others engaged in organized drug-trafficking.

In December 1994, six months after the decision in Alexander, Afanador sought post-conviction relief (PCR) in part on the basis of improper jury instructions. The trial court, concluding that the interests of Justice warranted a relaxation of the procedural bars to hearing the matter, held that the error in the jury charge could not be raised on PCR because trial counsel had not objected to the charge at trial. The court also concluded that Alexander announced a new rule of law that should not be applied retroactively. The trial court dismissed Afanador's other claims concerning ineffective assistance of counsel and use of perjured testimony.

The Appellate Division affirmed the dismissal substantially for the same reasons as the trial court. In addition, the Appellate Division held that the PCR petition was barred under Rules 3:22-4 and -5 because all issues could have been or were raised on direct appeal. The court also held that the PCR petition was time barred under Rule 3:22-12 because it was not filed within five year's of Afanador's conviction.

The Supreme Court granted Afanador's petition for certification.

HELD:

Because Afanador was denied certification on the issue of proper jury instructions, his petition for post-conviction relief is not procedurally barred by Rules 3:22-4, -5, or-12. The Court's decision in Alexander does not constitute a new rule of law and should be applied retroactively to Afanador's case. The absence of an Alexander instruction constituted plain error clearly capable of bringing about an unjust result; therefore, a new trial on the drug kingpin count is warranted.

1. Rule 3:22-4 essentially bars all grounds for PCR that could have been raised in a prior proceeding. Afanador sought to raise the issue of the proper jury instruction in his direct appeal but the Court denied certification on that issue. Thus, the Alexander issue could not have been raised until after Afanador's direct appeal had been exhausted. (pp. 6-9)

2. Rule 3:22-5 precludes PCR on an issue previously adjudicated. The issue sought to be precluded must be identical or substantially equivalent to the issue already adjudicated on the merits. Afanador I only addressed the constitutionality of the drug kingpin statute; the jury charge issue was not adjudicated in that case. Therefore, Rules 3:22-4 and -5 do not bar Afanador's jury instruction claim. (pp. 9-10)

3. Rule 3:22-12 requires that a PCR petition challenging a judgment or conviction be brought within 5 years of the entrance of the judgment or conviction. In the context of PCR, a court should only relax the bar of Rule 3:22-12 under exceptional circumstances. Afanador was caught in a Catch-22 situation. For four years and seven months, as long as he pursued his direct appeal, he could not raise the jury instruction issue on PCR and he was unable to raise the issue before the Court because of the the limited grant of certification. It would be unfair to allow Alexander but not Afanador to benefit from the Court's decision that Afanador tried to challenge, pro se, in 1992. (pp. 10-12)

4. Because Afanador did not object to the challenged instruction at trial, he waived the right to challenge the instruction on appeal. However, a reviewing court may reverse on the basis of unchallenged error if it finds plain error clearly capable of producing an unjust result. The Afanador I charge tracked the language of the 1988 Model jury charge; it did not explain that the jury must find that defendant's status as an upper-echelon leader of the network was an essential element of the offense. Nor were certain terms defined in the charge in a manner consistent with Alexander. Thus, the absence of an Alexander instruction constituted plain error clearly capable of bringing about an unjust result. (pp. 12-16)

5. Alexander did not promulgate a new rule of law; it clarified ambiguities in the statute. Nonetheless, even if it were thought to be a new rule of law, the Alexander rule fosters the reliability of the truth-finding process. As such, complete retroactivity is suggested. The erroneous jury instructions were sufficiently prejudicial to Afanador to warrant a new trial on the kingpin charge. (pp. 17-21)

Judgment of the Appellate Division denying post-conviction relief on the drug-kingpin count is REVERSED and that charge is REMANDED to the Law Division for proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and COLEMAN join in JUSTICE O'HERN'S opinion.

The opinion of the Court was delivered by

O'HERN, J.

State v. Alexander, 136 N.J. 563, 643 A.2d 996 (1994), held that in order to convict one as a drug kingpin under N.J.S.A. 2C:35-3, a jury should be instructed that it must find that a defendant held an "upper echelon" or "high level" role as leader of a drug trafficking network. The principal issues in this appeal are (1) whether the principles of Alexander should apply retroactively to a case tried before that decision, (2) whether defendant's petition seeking post-conviction relief from his conviction as a kingpin on the basis of Alexander is procedurally barred, and (3) whether such relief is warranted.

I

The facts are set forth in our prior opinion involving defendant. State v. Afanador, 134 N.J. 162, 631 A.2d 946 (1993) (Afanador I). Defendant engaged in four drug transactions with an undercover detective. In the first three transactions, a total of $3,100 was exchanged for cocaine. The fourth transaction involving a $10,000 buy was not completed because of defendant's arrest.

Other people participated in the transactions. Defendant's nephew "Popo" was involved in the first transaction during which defendant spoke of having $2,300 "on the street" owed to him as a result of his "business." Popo directed cars from defendant's driveway and performed other tasks. In addition, a woman was dispatched to find a scale to weigh the drugs. In the second transaction, defendant's wife directed the detective to the back of the house and to the basement, where defendant was located. Defendant described himself to the undercover detective as being in the drug business. After removing the cocaine from an empty lightbulb box and completing the transaction, defendant "freebased" some cocaine. In the third transaction, Popo, Johnny Montalvo, Pedro Ortiz, and one "Cholo" were involved. Defendant was overheard telling another drug dealer "it was in," presumably referring to a drug shipment. In the fourth transaction, defendant's uncle, Osualdo Acobes, served as a courier and assisted with weighing the drugs while a person named "Nando" counted the money and arranged delivery with the detective. This time defendant said he "had $27,000 on the street." There were other background facts and circumstances, including Discussions of larger sums of money and drugs. Defendant contended, however, that such Discussions were initiated by the undercover agent and that he, Afanador, was merely the go-between for the undercover agent and the sellers. These facts sustained defendant's 1988 conviction as a drug kingpin. In March 1989, the trial court sentenced defendant to two consecutive terms of life imprisonment, each with a twenty-five year period of parole ineligibility. Defendant asserted that use of one of the factors, defendant's involvement in organized crime, constituted inappropriate double counting.

On appeal, defendant, through prior counsel and his supplemental pro se submission, challenged the constitutionality of the kingpin statute, the excessiveness of the sentence, and the competency of his trial counsel. In 1991, the Appellate Division rejected defendant's challenges to the constitutionality of the kingpin statute. It also dismissed the ineffective assistance of counsel claim. The court, however, remanded the sentence for reconsideration of the two consecutive life terms imposed. The Appellate Division found the sentence troubling because of "defendant's obvious mid-to-low level position on the pyramid of potential kingpin targets."

On remand in May 1992, the trial court reduced defendant's sentence for being a drug kingpin to one term of life imprisonment, with thirty years of parole ineligibility. Other sentences were made concurrent. In September 1992, we granted defendant's pro se petition for certification. The petition asserted, in addition to other challenges, that the jury charge was not consistent with the legislative intent of the drug kingpin statute because the charge had not required a finding that defendant was an upper-echelon member of a drug network. Pursuant to this Court's request that defendant be assigned pro bono counsel, present counsel began representing Afanador in October 1992. In November 1992, the Court amended the Order granting certification and limited our review to the statute's constitutionality, facially or as applied. 130 N.J. 601 (1992). In October 1993, this ...


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