Before Judges Petrella, Eichen and Lesemann.
The opinion of the court was delivered by: Petrella, P.j.a.d.
 Submitted December 8, 1997
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Defendant Kevin Pleasant was tried under a six count indictment charging him with a number of drug offenses and unlawful possession of a weapon. The jury unanimously found Pleasant guilty of conspiracy to possess a controlled dangerous substance (CDS) (marijuana) with intent to distribute (N.J.S.A. 2C:5-2); possession of a hand gun without a permit (N.J.S.A. 2c:39-5b); and employing a juvenile in a drug distribution scheme (N.J.S.A. 2C:35-6). The jury was unable to reach a verdict on counts charging him with possession of CDS (N.J.S.A. 2C:35-10a(3)); possession of CDS with intent to distribute (N.J.S.A. 2C:35-5b(11)); and distribution of CDS to one Rajhon Foushee (N.J.S.A. 2C:35-5b(12)), and a mistrial was declared as to those counts. *fn1
Pleasant was sentenced to a mandatory five year prison term, five years without parole eligibility, for his conviction of employing a juvenile in a drug distribution scheme. He received concurrent three-year prison terms for the convictions of conspiracy and possession of a weapon.
On appeal Pleasant argues:
I. The trial court failed to adequately and sufficiently instruct the jury regarding employing a juvenile in a drug distribution scheme.
II. The jury's verdict on the remaining counts (possession of CDS, possession of CDS with intent to distribute, and distribution of CDS) precluded a conviction on the count charging him with employing a juvenile in a drug distribution scheme as a matter of law, requiring a dismissal of the conviction and resulting sentence imposed. (Not raised below).
We reject Pleasant's contentions and affirm.
Predicated on the proofs presented, the jury could have found the following facts beyond a reasonable doubt. Newark police officers on narcotics surveillance with power binoculars observed unlawful drug activity taking place about 8:30 p.m. on November 30, 1994, at 46 Fabyan Place in Newark.
Detective Cuccolo testified that he was in a surveillance vehicle near the premises on the evening in question and observed through binoculars a passing of money at the front of the driveway by the sidewalk from a man, later identified as Rajhon Foushee, to someone later identified as seventeen year old Lejon *fn2 Bailey. The detective then saw Bailey pass that money to Kevin Pleasant who was, at the time, standing about fifteen feet away by the corner of the house in the driveway of 46 Fabyan Place. Cuccolo said that upon receipt of the money, he saw Pleasant bend down, retrieve a small object from the ground, and hand it to Bailey who went back down the driveway and gave it to Foushee who was waiting on the sidewalk. It turned out that the package contained marijuana.
Satisfied that they were witnessing a drug sale, Cuccolo and his partner moved to arrest Foushee (who had four bags of marijuana in his hand), Bailey and Pleasant. The police identified themselves verbally and displayed badges. Cuccolo observed Pleasant reach into his waistband as the police approached. He testified that he saw Pleasant remove a handgun and throw it to the ground. The police then ordered everybody to the ground and Pleasant, Bailey and Foushee complied. The detective retrieved a fully loaded Glock nine millimeter semi-automatic handgun with five live rounds as well as seventy-eight small bags and six large bags of marijuana in bags next to Pleasant. The State's expert linked several bags of marijuana found on Foushee to those testified to as belonging to Pleasant. In the detective's opinion, the seventy-eight small bags and six large bags of marijuana would not be held for personal use, but rather would be for distribution, and that a juvenile was typically used by an adult as part of the transaction. There was no evidence that the police efforts were directed at investigating 46 Fabyan Place, the purported source of the drug sales.
Pleasant and his brother testified they had driven to 46 Fabyan Place, along with Bailey (the juvenile) and Edward Stoville *fn3 on the date stated to buy marijuana for their own use. They acknowledged that the premises was well known for obtaining drugs. Pleasant denied any involvement in any sale of marijuana and denied possession of the seventy-eight small bags and six large bags of marijuana and also denied possession of a weapon. He said he only had ten dollars with him when he went to the premises to buy two five-dollar bags of marijuana.
James Stewart testified he went with Foushee to the same premises to buy drugs. Foushee said he had gone to Fabyan Place for the same purpose and was standing "in line" ahead of Pleasant (although he said he did not know him before that) to buy marijuana through a hole where the door had been. The procedure to get drugs was to hand money through the opening and receive the drugs in exchange from persons he could not see. He claimed he did not see anybody and denied seeing a gun and just about anything else. No one else was charged as a result of the incident.
The jury obviously rejected on credibility grounds much of the testimony presented on the defense case because it returned a guilty verdict on the conspiracy and employing a juvenile charges in the indictment. Of course, the jury's hung verdict on the other charges does not offer any insight on its assessment of credibility as to those charges.
The trial Judge denied, as unnecessary, Pleasant's request to instruct the jury in the following language:
If you find that Kevin Pleasant knowingly used, solicited, directed, hired or employed R.B. to simply or just possess marijuana with no intent to manufacture, distribute or dispense marijuana, he cannot be found guilty of Count Five.
Defense counsel unsuccessfully renewed his request after the jury instruction. Pleasant claims that the Judge should have instructed the jury in line with his requested charge in order to focus the jury's attention on the issue of whether Pleasant was engaged with a minor in a drug distribution scheme, or whether at the time of his arrest he was simply trying to buy some marijuana for his own use.
The Judge charged the jury as follows:
So, in other words, the State must satisfy you with proof beyond a reasonable doubt that the defendant, Kevin Pleasant, was in fact 18 years of age or more at the time he knowingly used, solicited, directed, hired or employed [Lejon] Bailey, who was in fact at that time 17 years of age or younger, to commit the crime of either maintaining or operating a controlled dangerous substance production facility, as previously defined to you, or to manufacture, distribute or dispense a controlled dangerous substance or controlled substance, as previously defined, or had possession of a controlled dangerous substance with the intent to distribute it.
Thus, the juvenile need not actually commit any violation of the law. The State need only prove that the defendant knowingly used the juvenile to violate the law or solicited him to perform the illegal activity described in the Indictment. And that illegal activity, again, would be to possess marijuana and to possess it with the intent to distribute it and/or to distribute marijuana. [Emphasis added].
N.J.S.A. 2C:35-6, captioned "Employing a juvenile in a drug distribution scheme," provides in pertinent part:
Any person being at least 18 years of age who knowingly uses, solicits, directs, hires or employs a person 17 years of age or younger to violate N.J.S. 2C:35-4 or subsection a. of N.J.S. 2C:35-5, is guilty of a crime of the second degree and shall... be sentenced to a term of imprisonment which shall include the imposition of a minimum term (of)... five years ... during which the defendant shall be ineligible for parole.
The quoted statute refers to the involvement of a juvenile employed by an adult in connection with a violation of either N.J.S.A. 2C:35-4 or N.J.S.A. 2C:35-5a. N.J.S.A. 2C:35-4 deals with maintaining or operating a CDS production facility and has no application here. N.J.S.A. 2C:35-5a, *fn4 however, deals with possession of a controlled dangerous substance (which includes marijuana) with intent to distribute the same, and is applicable. It states in pertinent part:
[I]t shall be unlawful for any person knowingly or purposely:
(1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance....
N.J.S.A. 2C:35-5a encompasses two alternative types of possession with intent to distribute, actual and constructive. This section differs from N.J.S.A. 2C:35-10, the simple possession statute, ...