NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010 - Decided Before Judges Lisa and Reisner.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-1132.
Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, of counsel and on the brief).
Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).
Defendant and his co-defendant, Hiawatha Bibby,*fn1 were charged in a seven count indictment with drug offenses, all arising out of a single incident in Asbury Park on December 1, 2007. Bibby was charged in counts one, two and three with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1), third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3), and third-degree distribution of heroin, N.J.S.A. 2C:35-5b(3). Counts four and five charged Bibby with third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7, and third-degree distribution of heroin within a school zone, N.J.S.A. 2C:35-7. Count six charged Bibby with fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). Defendant was the subject of only count seven, which charged him with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1).
The jury acquitted defendant of the possession charge contained in the indictment. However, over defendant's objection, the court instructed the jury that if it found defendant not guilty of possession, it could consider as a lesser-included offense the crime of "conspiracy" to possess the heroin. In actuality, the charge given to the jury was for vicarious liability for Bibby's conduct on the theory that defendant was engaged in a conspiracy with Bibby, under N.J.S.A. 2C:2-6b(4). The court did not charge the substantive crime of conspiracy under N.J.S.A. 2C:5-2. The jury found defendant guilty of "conspiracy." Defendant filed a post-trial motion for acquittal or a new trial. The motion was denied and defendant was sentenced to five years imprisonment. Defendant argues on appeal:
THE JURY SHOULD NOT HAVE BEEN CHARGED ON CONSPIRACY.
THE COURT'S CHARGE WAS MISLEADING AND CONFUSING, AND WRONG. (NOT RAISED BELOW).
We agree with defendant's arguments and reverse.
At about 6:15 p.m. on December 1, 2007, Officers Gabrielle Carrasquillo, Eddy Raisin and Stephen Love, of the Asbury Park Police Department, stood on the 1500 block of Springwood Avenue near a pizza restaurant on the corner of Ridge Avenue. The officers were in plain clothes and were patrolling this high narcotics trafficking area in an effort to combat open-air drug sales. The officers observed defendant standing outside of the pizza restaurant. A few minutes later, they saw Bibby cross Springwood Avenue and approach defendant. Carrasquillo said defendant reached his left hand forward as Bibby handed defendant a white glassine packet. Based on his training and experience, Carrasquillo suspected that the packet contained heroin. Carrasquillo and Raisin contend they saw defendant hand Bibby United States currency, after which defendant and Bibby shook hands and began walking in separate directions.
Believing they had just witnessed a hand-to-hand narcotics transaction, the officers approached the two men and identified themselves as police officers. Defendant opened his hand and revealed a glassine packet that was marked "Inside Man" in red ink. Raisin placed defendant under arrest. Carrasquillo approached Bibby, who ran across Springwood Avenue. Carrasquillo pursued and apprehended him. He handcuffed Bibby and said he found a $10 bill in his hand. A further search revealed that Bibby had a pill bottle in his jacket which contained two bundles of suspected heroin and an additional $69 in currency. When the pill bottle was later examined at the station house, it was determined that one bundle contained ten glassine packets and the other contained nine. The packets were labeled "Inside Man" in red ink.
Defendant and Bibby were tried jointly. Defendant did not testify, but Bibby did. He readily acknowledged possessing heroin. He was fifty-eight years old at the time of trial, and he told the jury he had been a heroin addict for forty-two years. He acknowledged having numerous convictions involving heroin and having been in and out of jail and treatment for this problem.
Bibby said he had known defendant for about a year and they worked together on occasion. Bibby said he had purchased the two bundles earlier that day for a total price of $120, leaving him with $80 and change on his person. He attended his nephew's party, after which he stopped at a friend's apartment where he had left the heroin purchased earlier that day and picked it up before he headed home. Bibby said the heroin was strictly for his personal use. While he was walking toward his home, he stopped at a liquor store and purchased a quart of beer for a $1.50, leaving him with $79 in paper currency and change.
Bibby testified that the pizza restaurant was along his route of travel while walking home and that he ran into defendant in front of it purely by chance. He said he had not spoken to defendant in advance of the encounter and denied there was any prearrangement for the men to meet. Bibby said he asked defendant "what was happening because I had just left the party, and I was telling him about some food [presumably from the party]." He said defendant "was trying to tell me about some work that he had scheduled for Monday." This incident occurred on a Saturday.
Bibby acknowledged a hand-to-hand contact with defendant, describing it as the kind of greeting that would "normally" be exchanged "in the neighborhood." He said defendant "stuck out his hand, and he had his hand like, you know, a funny little shape, and so I just brushed past his hand." Bibby said the police then apprehended defendant, and he (Bibby) began to run, but was immediately apprehended. According to Bibby, there were many people on the street in the immediate area when all of this occurred. Bibby denied handing heroin or anything else to defendant, and he denied that defendant handed him money.
In cross-examining Bibby, the prosecutor attempted to elicit evidence that his encounter with defendant in front of the pizza restaurant was not a chance meeting. The prosecutor attempted to establish that this location was a regular meeting place for the two men. However, although Bibby acknowledged seeing defendant at that location in the past, he insisted that on those prior occasions the encounters were work-related, in the mornings, and ...