September 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASHAWN LINDSEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-08-0984.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Reisner and Hoffman.
Defendant Jashawn Lindsey appeals from his conviction for the
second-degree offense of employing a juvenile in the distribution of a
controlled dangerous substance (CDS),
N.J.S.A. 2C:35-6, and associated additional CDS offenses.*fn1
He received an aggregate prison term of five years without
parole, the minimum sentence that could be imposed under N.J.S.A.
2C:35-6. On this appeal defendant raises the following points for our
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CHARGE OF EMPLOYING A JUVENILE IN A DRUG DISTRIBUTION SCHEME WHICH WAS NOT SUPPORTED BY CREDIBLE EVIDENCE.
POINT TWO: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A NEW TRIAL.
Having reviewed the record, we find no merit in these arguments and we affirm the conviction.
As alleged by the State, the incident involved defendant, who was
nineteen, and three other individuals, one of whom was a sixteen-year-old girl, K.B. This was the most pertinent evidence.
Paterson police officer Louis Pacella testified that, around 7:30 p.m.
on February 8, 2009, he and several other officers were conducting
narcotics surveillance in the area of Warren Street and Rosa Parks
Boulevard. He saw defendant and co-defendant Wilfredo Perea*fn2
walk toward each other on Warren and meet in the middle of
the intersection. He observed the two men standing "right in the
center of the roadway." Pacelli saw Perea hand defendant "what
appeared to be just paper money." Defendant looked at the money,
appeared to count it, and "put it in his right pocket." The two men
then immediately walked over to the southeastern corner of Warren and
Rosa Parks, where they met the female juvenile, K.B., and an adult
male, Gyasi Allen.
As Pacelli watched, K.B. handed some "small items" to Allen, who then handed them to Perea. According to Pacelli, defendant did not hand anything to Allen or to K.B., nor did he receive anything from her or Allen. Having observed what they believed to be a drug transaction, the police drove up to the group and exited their car. As the police approached, Perea dropped two small glassine bags of a substance later determined to be heroin. The two bags were retrieved by Pacelli's partner, Officer Macolino. The police detained all of the suspects, and Pacelli began escorting K.B. to a police car. At that point, K.B. began to cry, reached into her pocket, and handed Pacelli thirty glassine bags of heroin.
The police searched defendant and found forty-five dollars in cash but no drugs. None of the other suspects were carrying any money. Nor did any of them have any drugs, other than the two glassine bags Perea dropped and the thirty bags K.B. turned over to Pacelli. Thus it appeared that if defendant, Allen and K.B. were selling drugs, K.B. was holding all of the drugs but defendant was receiving all of the sale proceeds.
Defendant testified that he was arrested because he was in the "wrong place at the wrong time." He lived in the neighborhood near the intersection of Warren and Rosa Parks. On the evening of February 8, 2009, he was wandering aimlessly around the neighborhood when he got a cell phone call from a friend offering to braid his hair. At the time of his arrest, he had just left a liquor store where he had tried to buy rubber bands to secure the braids, and he was walking down Warren Street to the friend's house. As he reached the intersection, he saw the police running toward Perea, Allen and K.B., and he tried to "step out [of] their way" because he "had nothing to do with it." However, according to defendant "when cops jump out, they run and grab everybody."
Defendant admitted knowing both Allen and K.B. since childhood, but he denied any involvement in a drug transaction. Defendant testified that the forty-five dollars in his pocket was "child support" that his father had given him because he was attending trade school. On cross-examination, he admitted that he had socialized with K.B. both before and after his arrest, she was his "good friend," and he knew at the time of his arrest that she was a junior in high school. He also admitted that his home was at least a half-mile away from the scene of the arrest.
On this appeal, defendant argues, as he did in the trial court, that there was no evidence that he controlled the juvenile, for purposes of N.J.S.A. 2C:35-6, and the trial judge should have granted his motions for a judgment of acquittal, R. 3:18-1, -2, and for a new trial. R. 3:20-1. Those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Salem V. Ahto in the oral opinions he placed on the record on April 28, 2010, and May 24, 2010. We add the following comments.
N.J.S.A. 2C:35-6 applies to "[a]ny person being at least 18 years of age who knowingly uses, solicits, directs, hires or employs a person 17 years of age or younger to violate N.J.S.A. 2C:35-4 or subsection a. of N.J.S.A. 2C:35-5." However, "[t]he statute does not permit a jury to convict merely because a juvenile and adult were involved in the transaction. The use of the active verbs in the statute requires that the adult control the juvenile." State v. Laws, 262 N.J. Super. 551, 561 (App. Div. 1993).
In light of the State's evidence, none of defendant's motions satisfied the applicable legal standards to obtain the relief sought. See R. 3:18-1; R. 3:20-1; State v. Wilder, 193 N.J. 393, 406 (2008); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Defendant was the one who received the money from the customer, Perea. The juvenile was holding all the drugs, but she handed over the drugs to Allen without receiving any money from him in return. Allen, in turn, gave the drugs to the customer without receiving any money. A reasonable jury could conclude that because defendant was the one receiving the money, he was also the one in control of the sale, and the juvenile was holding the drugs at his direction. There was sufficient evidence to deny defendant's motion at the close of the State's case. Wilder, supra, 193 N.J. at 406; State v. Reyes, 50 N.J. 454, 458-59 (1967).
In addition, before the jury returned its verdict, it heard defendant's less-than-credible explanation for his presence at the scene and his admission that he knew Allen and K.B. We cannot conclude that the verdict was unsupported by the evidence or was a "manifest denial of justice under the law." See R. 3:20-1. Rather, the verdict was amply supported by the evidence and the reasonable inferences the jury could draw therefrom. There was no "miscarriage of justice" in Judge Ahto's decision to deny the new trial motion. R. 2:10-1.