On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 02-03-0912 and 02-10-3856.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2006
Before Judges Wefing, Parker and C.S. Fisher.
Defendant Nafi Hall was charged with having committed various drug offenses and, also, for entering into an unlawful conspiracy with co-defendant Joann Clark (Clark). During deliberations, the jury asked about the availability of arrest reports to which the judge responded, after conferring with counsel, by opening the jury room door and providing the jury, off the record, with his instructions. Another later jury question sought instruction as to whether it could find one defendant guilty of conspiracy while acquitting the other; the judge advised that it could. The jury then rendered a verdict which found defendant guilty of some of the drug charges and also of conspiracy, even though Clark was acquitted of conspiracy. Because the procedure adopted by the judge in instructing the jury about the arrest reports was improper, we reverse and remand for a new trial. We also reverse the conspiracy conviction because the judge's instructions permitted the jury to convict defendant of conspiracy if it found that defendant had entered into an unlawful conspiracy other than that which was charged in the indictment.
Defendant was charged in Indictment No. 02-3-0912 with four counts of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and (b)(3); four counts of third-degree distribution of CDS within 1000 feet of school property, N.J.S.A. 2C:35-7; four counts of second-degree distribution of CDS within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1; third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); first-degree possession of cocaine in a quantity of five ounces or more, N.J.S.A. 2C:35-5(b)(1); third-degree possession of CDS with the intent to distribute on school property, N.J.S.A. 2C:35-7; second-degree possession of CDS with the intent to distribute within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1; and second-degree conspiracy, with Clark, to violate narcotics laws, N.J.S.A. 2C:5-2. The indictment also charged defendants Anna Flippon, Martina Grant, Marcus Gwynn, and Jason Hall with having committed drug offenses.
The evidence presented by the State during a four-day trial, which took place in June 2003, indicated that, on November 17, 2001, members of the Newark Police Department observed drug transactions occurring in front of a residence on North 5th Street,*fn1 a residence located within 1,000 feet of a school and within 500 feet of a public housing complex. The officers testified that from their vantage point they observed Gwynn, Grant, Hall and Flippon separately purchase narcotics at that location. In each instance, the alleged buyer approached defendant Clark, who was stationed in front of the residence. Following a short conversation, Clark would then, according to the officers, knock on the front door of the residence, and have a brief conversation with defendant, who was inside the residence. The State provided testimony that defendant, in each instance, would hand an object to Clark, who would then hand it to the buyer in exchange for money. Following each of the first three transactions another police team apprehended the alleged buyers, each of whom possessed vials of cocaine.
After observing these transactions, the officers left their surveillance position and approached the residence. As they detained Flippon, the last of the alleged buyers they had observed, Clark shouted out, "Police, put the -- the shit up." She was immediately apprehended. Defendant attempted to flee as the police chased him through the residence. According to the State's testimony, as defendant ran through the kitchen, he grabbed two bags off a table, but was apprehended before he could get out the back door. A bag containing vials of cocaine matching the appearance of those vials obtained from the buyers who the police had observed was allegedly found in defendant's possession when apprehended.
Gwynn and Clark testified. Defendant did not. His attorney argued in summation that the officers' testimony regarding defendant's alleged involvement in any drug transaction, including their testimony identifying defendant as being involved in what they allegedly witnessed from their surveillance position, was unreliable.
The jury convicted defendant of second-degree conspiracy, third-degree possession of CDS, first-degree possession of CDS with the intent to distribute, third-degree possession of CDS with the intent to distribute within 1000 feet of school property, and third-degree possession of CDS with the intent to distribute within 500 feet of public property. The jury acquitted defendant of the remaining charges.
At sentencing, all convictions were merged into the first-degree conviction, as to which the trial judge sentenced defendant to a fifteen-year term of imprisonment with a five-year period of parole ineligibility. The judgment of conviction entered on September 8, 2003*fn2 also imposed certain mandatory fees and assessments.
On appeal, defendant presents the following arguments for our consideration:
I. THE SUPPRESSION OF THE SURVEILLANCE LOCATION WAS REVERSIBLE ERROR (U.S. Const. Amend. VI, XIV; N.J. Const. (1947), Art. I, Par. 10).
II. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY A CONSPIRACY CONVICTION COULD BE BASED UPON FACTS NOT ENCOMPASSED BY THE INDICTMENT (U.S. Const. Amend. VI, XIV; N.J. Const. (1947) Art. I, Par. 8, 10).
III. THE TRIAL COURT'S DEFICIENT AND ERRONEOUS CONSPIRACY INSTRUCTIONS CAUSED AN ERRONEOUS CONVICTION BASED ON INSUFFICIENT EVIDENCE AND INCONSISTENT VERDICTS THAT CANNOT BE SUSTAINED.
IV. THE TRIAL COURT'S FAILURE TO GIVE A SPECIFIC UNANIMITY INSTRUCTION WAS PLAIN ERROR AND REQUIRES REVERSAL (U.S. Const. Amend. V, VI, XIV; N.J. Const. (1947) Art. I, Par. 9).
V. DEFENSE COUNSEL'S FAILURE TO PURSUE THE OBJECTION TO THE TRIAL COURT'S CONSPIRACY JURY INSTRUCTIONS, AS WELL AS HIS FAILURE TO PURSUE A POST-VERDICT DISMISSAL OF ALL CHARGES IN THE INTERESTS OF JUSTICE, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND REQUIRES REVERSAL (U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, Par. 10).
VI. THE IMPOSITION OF A PRESUMPTIVE FIRST-DEGREE SENTENCE OF 15 YEARS WITH A 5-YEAR PERIOD OF PAROLE INELIGIBILITY FOR THE FIRST-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE FOR THE "CRIMES" PROVEN IN THIS CASE IS FUNDAMENTALLY UNJUST AND SHOULD SHOCK THE JUDICIAL CONSCIENCE.
Invoking R. 2:6-11, defendant later submitted a letter to this court, which cited State v. Basit, 378 N.J. Super. 125 (App. Div. 2005) and urged that his right to a fair trial was prejudiced because the trial judge responded to a question posed by the jury during its deliberations ...