Before Judges Skillman, Lefelt and Winkelstein. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-0052.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
A jury found defendant guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1), (2); kidnapping, in violation of N.J.S.A. 2C:13-1a and b(2); felony murder, in violation of N.J.S.A. 2C:3a(3); racketeering, in violation of N.J.S.A. 2C:41-2(c); conspiracy to commit racketeering, in violation of N.J.S.A. 2C:41-2(d); conspiracy to commit kidnapping, theft by extortion and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:5-2; attempted theft by extortion, in violation of N.J.S.A. 2C:5-1; theft by extortion, in violation of N.J.S.A. 2C:20-5(a); terroristic threats, in violation of N.J.S.A. 2C:12-3(a); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); two counts of tampering with evidence, in violation of N.J.S.A. 2C:28-6(1); and two counts of hindering apprehension or prosecution, in violation of N.J.S.A. 2C:29-3a(3). The trial court sentenced defendant to a thirty-year term of imprisonment, with thirty years of parole ineligibility, for purposeful or knowing murder; a consecutive twenty-five year term, subject to the 85% parole ineligibility provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first-degree kidnapping; and a consecutive term of fifteen years for racketeering. The court also imposed concurrent terms of seven years imprisonment for attempted theft by extortion and four years imprisonment for the two counts of hindering apprehension or prosecution. The court merged defendant's other convictions.
The State's version of the offenses committed by defendant was presented through the testimony of one of his confederates, his stepson, Juan Machado, who testified for the State pursuant to a plea bargain. Machado stated that he moved into the Edison home of defendant and his mother in late 1997 and began working for defendant, whose business ostensibly consisted of selling vitamin soda to bodegas in New York City. However, Machado became aware as time went by that defendant was actually involved in drug transactions in the bodegas. Machado also learned that defendant, together with co-defendant Tony Mota, was involved in the collection of drug-related debts owed to Colombian drug dealers. Machado acted as a translator for defendant and Mota, who did not speak English, in some of these transactions.
In late November, co-defendants Mota and Machado met with a Colombian drug dealer called"John" in a restaurant in New York City. At that meeting, defendant and Mota agreed to help collect $180,000 that the victim, Eddie Acevedo, owed the Colombian drug dealers, for which they were to receive 30% of the proceeds. John gave them a description of Acevedo's car, a white Montero, his license plate number, and the locations where he might be found.
On the afternoon of December 13, 1997, defendant, Mota, Machado and other persons cut-off Acevedo's car in Manhattan, put him into defendant's car, and drove him to defendant's home in Edison. Machado followed in Acevedo's car.
During the next twenty-four hours, defendant, Mota and Machado made a series of telephone calls to Acevedo's family and friends, demanding payment of a ransom and threatening to kill Acevedo if the money was not paid. The amount of the ransom demands varied from $50,000 to $180,000 and at one point the kidnappers demanded that the ransom be paid partly in cash and partly in cocaine.
Although Acevedo's family and friends were not able to raise the entire amount of the ransom, they were able to raise $23,000. Acevedo's wife offered also to give her car and a Rolex watch to obtain Acevedo's return. Defendant and his confederates agreed to accept this ransom offer. Pursuant to this agreement, Acevedo's wife left the car, money and watch on a Manhattan street, and paged the kidnappers to tell them where the ransom could be picked up. Defendant and Mota retrieved the car from the drop site, removed the money and watch, and abandoned the car in a Manhattan parking garage. Defendant, Machado and Mota split the $23,000 three ways and gave the watch to the Colombian drug dealers.
When Acevedo failed to return home by the morning following payment of the ransom, his wife called the police and reported the kidnapping. The police were able to locate her car in the parking garage the next day. Acevedo's wife and her cousin, Carlos Pacheo, gave the New York City police the telephone numbers they had used to communicate with the kidnappers. In addition, Pacheo gave the police permission to monitor and trace any telephone calls made to his cell phone. Acevedo subsequently called Pacheo's cell phone number several times, asking for more money and/or cocaine as additional ransom to gain his release.
On December 16th, the Colombian drug dealers told defendant and Mota that the police had recovered the car Acevedo's wife had given them as part of the ransom. They also told Mota that Acevedo was a police informant and should be killed.
Later that day, defendant, Mota and Machado put Acevedo in his car. According to Machado, Mota started to drive Acevedo's car along Route 280, and Machado drove defendant's car about a quarter-mile ahead of him. Defendant sat in the back seat of Acevedo's car, directly behind Acevedo. After Machado saw Acevedo's car first swerve back and forth and then slow down, he stopped and began driving backward on the shoulder. As he approached Acevedo's car, he saw defendant and Mota jump out and start running towards them. Acevedo's car burst into flames as Mota and defendant got into defendant's car. The police subsequently found Acevedo's burning White Montero, his body still inside. An autopsy indicated he had been killed by two gunshots before the fire.
The New Jersey State Police conducted an extensive investigation over the next three-and-a-half months, which included visual surveillance of defendant and a wiretap of his cell phone. This investigation produced substantial evidence of defendant's continuing involvement in drug transactions and the collection of money owed by drug dealers. However, the wiretap did not produce any evidence of defendant's involvement in the kidnapping and murder of Acevedo.
On April 8, 1998, the New Jersey State Police and New York City police arrested defendant in Manhattan. After the police disclosed some of the evidence they had obtained against him, defendant admitted his involvement in drug trafficking and in Acevedo's kidnapping. However, defendant claimed he had objected to killing Acevedo and was not in the car at the time of the murder. According to defendant, Machado had been the driver of Acevedo's car and Mota was behind him in the rear seat. Defendant followed them in his own car. At some point, defendant saw Machado and Mota motioning him to pull over. When he did so, Acevedo's vehicle was engulfed in flames, and Machado and Mota ran to his car and jumped in. Mota told defendant he had shot Acevedo and set him on fire. The trial court denied defendant's pretrial motion to suppress evidence of his statement. Defendant does not challenge the admissibility of his statement on appeal.
At trial, the State presented defendant's inculpatory statement, Machado's testimony and substantial corroborative evidence of defendant's involvement in Acevedo's kidnapping and murder. Pacheo testified that he had conducted a surveillance of the area where Acevedo's wife left her car with the $23,000 and Rolex watch, and that the car used to pick up the ransom was a green Mitsubishi Montero with New Jersey license plates that included the numbers"5" and"3" and the letter"N." At the time of the crime, defendant owned a green Mitsubishi Montero bearing New Jersey license plate number"VF534N." The State also presented telephone records which showed that the cell phone used by the kidnappers to call Acevedo's wife and Pacheo also had been used to call and receive calls from cell phones registered to defendant and Mota.
On appeal, defendant presents the following arguments:
I. THE DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN THE TRIAL COURT FAILED TO SUBMIT THE ELEMENT OF JURISDICTION TO THE JURY DESPITE SUBSTANTIAL EVIDENCE THAT MOST OF THE CRIMINAL ACTIVITY TOOK PLACE IN NEW YORK STATE. (Partially Raised Below).
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR ON THE MURDER COUNT WHEN, OVER OBJECTION, IT RESPONDED TO A JURY QUESTION WITH A SUPPLEMENTAL INSTRUCTION THAT DEFENDANT COULD BE FOUND TO BE AN ACCOMPLICE BASED UPON HIS ACTIONS AFTER THE MURDER.
III. BECAUSE THE DEFENDANT WAS INDICTED, TRIED AND CONVICTED OF SECOND DEGREE KIDNAPPING, HIS 25 YEAR SENTENCE IS ILLEGAL, AND HIS JUDGMENT OF CONVICTION MUST BE AMENDED. (Not Raised Below).
IV. BECAUSE THE MONITORING POLICE FAILED TO MAKE REASONABLE EFFORTS TO AVOID INTERCEPTING TELEPHONE CALLS FROM ONE OUT-OF-STATE PHONE TO ANOTHER OUT-OF STATE PHONE, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION TO SUPPRESS THE WIRETAPS.
V. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A THIRD CONSECUTIVE SENTENCE FOR RACKETEERING WHEN THAT CONVICTION WAS BASED UPON THE SAME CONDUCT AS THE MURDER AND KIDNAPPING COUNTS.
We reverse defendant's convictions for racketeering and theft by extortion because the trial court failed to instruct the jury concerning the territorial elements of those offenses and remand for a retrial of those charges. In addition, we vacate defendant's conviction for first-degree kidnapping because the court submitted this charge to the jury as second-degree kidnapping and remand for resentencing for the second-degree ...