On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No.06-05-0489.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges C.L. Miniman and Baxter.
Defendant Frank Anderson appeals from his March 16, 2007 conviction on third-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:35-5(b).*fn1 The judge sentenced defendant to a four-year term of imprisonment of which eighteen months was ordered to be served without parole eligibility. Appropriate fines and penalties were imposed. We affirm.
On December 15, 2005, Millville Police were conducting an undercover operation aimed at purchasing narcotics from street-level drug dealers. Detective Brian Starcher approached defendant at Denora's Food Market while defendant was leaning against the outside of the building. Defendant asked Starcher, "What's up? What are you looking for? What are you doing?" Starcher testified that he interpreted defendant's question as inquiring whether Starcher was interested in buying narcotics. Starcher responded that he "was looking to . . . score a 20 piece," which Starcher explained at trial is slang for a twenty-dollar piece of rock cocaine. Defendant responded that he did not have any, but that he "would take [Starcher] to get some if [Starcher] was able to hook him up." Starcher explained that the term "hook him up" meant rewarding the other person with drugs or money.
Starcher agreed to those terms and agreed to accompany defendant to the area of Third and E Streets in Millville where the two came into contact with Sharp. When defendant told Sharp that Starcher was interested in purchasing a "twenty piece," Sharp told defendant and Starcher to follow him on foot until they reached Fifth Street, where Sharp made a phone call. Defendant and Starcher were unable to hear Sharp's conversation; however, after the conversation ended, the three walked a short distance until they came upon a gold-colored Nissan parked at the curb with a female driver and a male passenger inside.
When Sharp approached the car, the passenger lowered his window, enabling Sharp to reach into the vehicle and obtain something from him. Sharp walked back to defendant and Starcher, who put out his hand to try to obtain the drugs. Sharp told Starcher, "No, no, no, no, not here. Follow me down to the corner." Starcher testified that he and defendant followed Sharp's instruction. According to Starcher, at the corner, Sharp handed him a small plastic bag containing rock cocaine in exchange for Starcher's twenty-dollar bill. Sharp left the scene and Starcher and defendant proceeded back to Denora's Food Market, where defendant asked Starcher if he could smoke some of the cocaine. Starcher answered no, took out a five-dollar bill and gave it to defendant saying, "here's $5 for hooking me up. Thanks." According to Starcher, defendant seemed pleased with the five dollars and told Starcher that if he ever "needed anything else, come and find him," that his name was "Frank," and he would "hook [Starcher] up again." Starcher and defendant parted, and Starcher proceeded to a pre-arranged location to meet his back-up unit.
The State also produced the testimony of Detective Michael Romanik, who testified that from a distance he was able to observe defendant and Starcher walk over to Sharp. Romanik explained that he knew Sharp as "Gator." Romanik approached defendant after Starcher had left him and asked defendant to identify himself. After defendant did so, Romanik released him. Romanik explained that he did not arrest defendant and Sharp until January 5, 2006, because had he arrested them on the day in question, Starcher's identity as an undercover police officer would have been exposed and he would have been unable to continue working in an undercover capacity.
After the State rested, defendant moved for a judgment of acquittal, arguing that the State failed to present proof demonstrating he was guilty of conspiracy to distribute CDS. Judge Waters denied the motion, reasoning that the State presented sufficient evidence from which a jury could infer that defendant's purpose was to promote or facilitate the distribution of CDS from Sharp to Starcher. The defense rested without calling any witnesses. After the defense rested, defendant renewed his motion for acquittal. The judge denied the motion for the same reasons he had denied defendant's earlier motion.
In relevant part, the judge charged the jury as follows:
A person is guilty of Conspiracy with another person to commit a crime if, with the purpose of promoting or facilitating its commission, he agrees with such other person or persons that they or one or more of them will engage in conduct, which constitutes such crime, or an attempt or solicitation to commit such crime.
In order for you [to] find the Defendant guilty of the crime of Conspiracy, the state must prove beyond a reasonable doubt the following elements. One; the Defendant agreed with another person . . . that they would engage in conduct, which constitutes a crime or an attempt or solicitation to commit a crime.
Two; that the Defendant's purpose was to promote or facilitate the commission of the crime of Distribution of a Controlled Dangerous Substance.
In order to find the Defendant guilty of the crime of Conspiracy, the State does not have to prove that he actually committed the crime of Distribution of a Controlled Dangerous Substance. However, to decide whether the State has proven the crime of Conspiracy, you must understand what constitutes the crime of Distribution of [CDS].
To reiterate, three elements of the offense of Distribution of a [CDS] are the existence of the [CDS], that there was a distribution of the [CDS] [sic]. And that the persons engaged in the act of distribution must have acted knowingly or purposely in distributing the [CDS].
Now remember, the crime charged in this case is Conspiracy, not Distribution. A Conspiracy may be proven by direct or circumstantial evidence. It's not essential that there be direct contact among all the ...