Before Judges Petrella, Skillman and Eichen.
The opinion of the court was delivered by: Skillman, J.A.D.
 Submitted October 27, 1997
On appeal from Superior Court of New Jersey, Law Division, Essex County.
This appeal requires us to address issues regarding vicarious liability for the possession of drugs which the Court left unresolved in State v. Schmidt, 110 N.J. 258 (1988).
A jury found defendant guilty of conspiracy to commit the offenses of distribution of cocaine, possession of cocaine with the intent to distribute and possession of cocaine, in violation of N.J.S.A. 2C:5-2; first degree possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5; and third degree possession of cocaine, in violation of N.J.S.A. 2C:35-10. The court sentenced defendant to a twenty-year term of imprisonment, with ten years of parole ineligibility, for possession of cocaine with the intent to distribute. The court also imposed the statutorily mandated penalties and fees. The court merged defendant's other convictions into his conviction for possession of cocaine with the intent to distribute.
Defendant's convictions were based on the following evidence. In late August 1994, Jesus Morales agreed with Leonardo Paredes to transport 320 kilograms (700 pounds) of cocaine from Arizona to New Jersey in a mini-van. Paredes promised to pay Morales $240,000 for transporting the drugs, which he was to receive from the purchasers upon delivery. Paredes gave Morales a pager number to call when he arrived in New Jersey, telling him he would be contacted by a Columbian named Jose Wells. When Morales arrived in New Jersey, he obtained a room at a Days Inn in Newark and called the pager number. After waiting two days without being contacted, Morales became concerned that the purchasers might have a plan to steal the drugs and moved to a Ramada Inn. At this point, the State Police received a tip from a confidential informant that there was some drug related activity going on at the Ramada. Consequently, Detective Fernando Pineiro went to the Ramada, where he noticed Morales behaving suspiciously. On September 3, 1994, Pineiro confronted Morales and, after Pineiro informed Morales that some of his responses to questions were inconsistent with information the State Police had obtained in their investigation, Morales consented to a search of the mini-van, which resulted in the discovery of the cocaine. All of the cocaine was taken to State Police headquarters where it remained for the duration of the investigation. At this time, Morales agreed to cooperate with the State Police and continue with the planned drug transaction while allowing Pineiro to pose as his son-in-law.
Later that evening, Morales received a telephone call from defendant concerning the delivery of the cocaine. Morales said that he would not deliver the cocaine until he received his $240,000 fee. Defendant called back a short while later and said he had spoken to his "papa," meaning his supervisor, and that he would be at Morales' motel room early the next morning. Negotiations with defendant continued the next day, with Morales insisting on receiving payment for transporting the cocaine before making delivery. Morales then received several telephone calls from a person who identified himself as Jose Wells, who indicated that their bosses had changed the arrangements for the delivery of the cocaine and that Morales should "contact [his] Papa." Following this conversation, Morales received a call from Paredes, who told him to make immediate delivery of the cocaine, and that Paredes would pay him directly after he returned to Arizona. During this conversation, Paredes also told Morales that he had a commitment to sell a total of 600 kilograms of cocaine to the persons to whom the cocaine was to be delivered.
When defendant called the room a few minutes later, Morales told him he would follow Paredes' instructions and deliver the cocaine without receiving payment of his fee. Defendant arrived at the motel shortly thereafter where he met an individual subsequently identified as Omar Arayo. The two men started walking towards the motel but then quickly returned to their car. At this point, the police arrested both defendant and Arayo.
At trial, defendant did not present any evidence in his own behalf. During summation, defense counsel argued that the evidence indicated defendant had not conspired to distribute the cocaine but had been merely a prospective buyer. Defense counsel also argued that because neither money nor drugs changed hands, defendant never had possession of the cocaine.
After the jury returned verdicts of guilty as to all charges, defendant filed a motion for a new trial on the ground that the verdict was against the weight of the evidence. The court denied this motion, finding that there was sufficient evidence to support the convictions.
On appeal, defendant argues that because a civil forfeiture of money allegedly belonging to defendant was imposed in connection with this case, his criminal conviction violated the Double Jeopardy Clauses of the United States and New Jersey Constitutions; that the trial court should have granted a judgment of acquittal because the State failed to present the evidence required to support a finding of guilt or, in the alternative, the court should have granted his motion for a new trial because the verdict was against the weight of the evidence; and that the trial court failed to adequately evaluate the applicable aggravating and mitigating factors in imposing sentence. In addition, defendant filed a supplemental pro se brief in which he argues that the police violated his Fourth Amendment rights in a search of his house and automobile and a search of his person incident to his arrest and that his arrest was the result of police entrapment.
We conclude that the State's evidence was sufficient to support defendant's conviction for conspiracy. However, the State's evidence did not provide a basis for his convictions for possession of cocaine and possession of cocaine with the intent to distribute under either of the theories under which the case was submitted to the jury. Because the evidence would have supported defendant's convictions under an alternative theory that was not submitted to the jury, we reverse the convictions for possession of cocaine and possession of cocaine with the intent to distribute and remand the case for a new trial. Defendant's other arguments are clearly without merit and do not require Discussion. R. 2:11-3(e)(2). Consequently, if defendant is acquitted of the possessory offenses at a retrial, the trial court should impose sentence for the conspiracy conviction.
Initially, we consider the conspiracy conviction. The Code of ...