On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-04-0915.
The opinion of the court was delivered by: Parrillo, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012
Before Judges Parrillo, Alvarez and Skillman.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
Tried by a jury, defendant Saeed Ellis was convicted of fifty-three drug-related counts including second-degree conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5b(2) and N.J.S.A. 2C:5-2, and first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. The conspiracy was merged with the "kingpin" offense, for which defendant was sentenced to life imprisonment with a twenty-five year period of parole ineligibility. Sentences on the remaining counts were all made to run concurrent. On appeal, defendant challenges his drug kingpin conviction, arguing that his motion for judgment of acquittal should have been granted. We agree, and accordingly vacate that conviction, unmerge the conspiracy count and remand for resentencing thereon.
According to the State's proofs, during an eleven-week period from February 21, 2006 to May 3, 2006, defendant engaged in six drug transactions with an undercover police officer wherein a total of less than $2,000 was exchanged for over one-half ounce of cocaine and .29 grams of heroin. In two of the transactions, defendant did not directly participate and sent others to complete the sale.
This surveillance operation commenced in February 2006 when a confidential informant (CI) advised the Monmouth County Prosecutor's Office (MCPO) that defendant, known as "King[,]" was dealing drugs. Pursuant to plan, and backed up by police officers providing security and surveillance, the CI and undercover detective, Adam Pharo of the Manasquan Police Department assigned to the MCPO Narcotics Strike Force, met defendant inside a Neptune residence on February 21, 2006. After being introduced by the CI, Pharo purchased three bundles (.29 grams) of heroin and one gram of crack cocaine from defendant for $300. Following this transaction, Pharo and defendant exchanged phone numbers.
The next five encounters, save one, were initiated by Pharo. On February 28, 2006, Pharo contacted defendant directly and arranged to purchase "5 Gs of hard[,]" meaning five grams of crack cocaine, for $250 to $260. They agreed to meet on the corner of Pharo and Division Streets in Neptune. Pharo arrived alone and while waiting in his car, received a call from defendant, who said he would be sending "his brother" in his place and that he would be arriving in five minutes driving a greenish grey four-door Oldsmobile. Soon after the call, a car fitting that description pulled up next to Pharo's and a male, later identified as Dorian Tyler, exited. Tyler handed Pharo a bag of crack cocaine in exchange for $260. When Pharo later discovered that the amount of crack cocaine was 2.7 grams less than he ordered, he telephoned defendant, who said he would "make good on it next time . . . ." Pharo and defendant also exchanged Nextel direct-connect phone numbers.*fn1
On March 6, 2006, Pharo reached defendant via direct-connect telephone and told him he wanted another five grams of crack cocaine, plus the shortage owed from the previous transaction. When Pharo approached the meeting spot, at the corner of Embury and Atkins Avenues in Neptune, he received a call from defendant, who advised that he would be "sending a guy in a yellow shirt . . . ." After a few minutes, a short, stocky male wearing a bright yellow sweatshirt, later identified as Robert Carter, walked up to Pharo's car and asked if he was waiting for defendant. When Pharo replied in the affirmative, Carter entered Pharo's vehicle, and produced 6.35 grams of cocaine. After checking the weight on his scale, Pharo handed Carter the money. Carter then exited the car. Pharo later called defendant to thank him and let him know he would be in touch.*fn2
On March 28, 2006, Pharo again contacted defendant to purchase another five grams of crack cocaine for $250. They arranged to meet at the same location - the corner of Atkins and Embury Avenues. At around 10:45 a.m., defendant arrived there on foot and completed the transaction with Pharo. The next contact, on April 17, 2006, was initiated by defendant who asked Pharo where he had been. Again, arrangements were made to purchase five grams of crack cocaine for the same price - $250. The exchange took place at around 4:15 p.m. that same day, this time at the corner of Atkins Avenue and Division Street in Neptune.
The final transaction between the two occurred on May 3, 2006, when Pharo telephoned defendant and arranged to purchase another five grams of crack cocaine, and "a little extra" since Pharo was willing to pay $260 this time. The two met on the corner of Pharo and Division Streets in Neptune, where the transaction was consummated.
Overall, Pharo purchased 23.1 grams of crack cocaine from defendant, or a little over one-half ounce. All of the transactions occurred in a drug-free zone, within 1,000 feet of a school, ...