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State v. Smart

Superior Court of New Jersey, Appellate Division

June 7, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
MICHAEL SMART, Defendant-Appellant.


Argued May 6, 2013

On appeal form the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 07-06-0061 and 08-10-0259.

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, Jr., on the brief).

Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Bornstein, on the brief).

Before Judges Sabatino, Fasciale and Maven.


Defendant appeals from his convictions for first-degree racketeering, N.J.S.A. 2C:5-2, 2C:41-2c, and -2d; first-degree conspiracy to commit murder of A.P., N.J.S.A. 2C:5-2, 2C:11-3a(1), and -3a(2); third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5a(1), and 5b(2); first-degree attempted murder of A.C., N.J.S.A. 2C:2-6, 2C:5-1, and 2C:11-3; second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a.[1] We affirm.

The New Jersey State Police (NJSP) investigated gang-related activity involving acts of violence, drugs, and weapons offenses. The investigation focused on gang leadership in New Jersey and included wiretaps of thousands of calls. The investigation led to the discovery of defendant and his involvement in these crimes. We discern the following facts from the evidence adduced at trial.

Detective Thomas James DeVirgiliis, an officer with the NJSP Street Gangs Central Unit, testified as an expert regarding the Nine Trey Gangster (NTG) set[2] of the Bloods street gang. He explained that the NTG set of the Bloods "formed on Rikers Island in July of 1993" when black inmates "banded together to fight back against Hispanic gangs" under an umbrella organization known as the United Blood Nation. When the inmates were released from prison, they returned to their homes in the New York/New Jersey area and began recruiting other members.

According to the detective's expert testimony, the NTG's leadership is loosely based on a military chain of command. The "supreme commander, " who is known as the godfather, establishes all "orders, rules [and] regulations." Under the godfather is the double original gangster (DOG), the original gangster (OG), and "a capo or a five[-]star, capo or captain." These "intermediate management ranks . . . disseminate [the] orders from the godfather down to the lower" ranks. Below the capo is "a four[-]star lieutenant, and then a three[-]star . . . sergeant." Below the sergeant are "soldiers." Lieutenants and solders "see [to] the daily . . . street level operations of the Bloods set." The soldiers' "main purpose is to commit the crime, or do the drug distribution, or" anything else they are ordered to do.

The NTGs have thirty-one rules and regulations, and are required to carry out any orders from the highest-ranking member. Members also swear to follow gang rules and regulations, "live their life as a gangster, and . . . do what it takes to oppress [their] enemies." They vow to kill or physically assault someone if ordered to do so. A former NTG, who was an active member at the time and cooperating with law enforcement, explained what it meant to be a Blood:

[W]e all about[] violence. Violence inflicts fear. Fear inflicts control and we loved that, you know. Keep people in check, control the neighborhood, control everything. So the violence was like second nature. If you ain't violent, you won't be a Blood. It's not a type of organization where if you told them you wanted to go get a college degree or you want to sit home and take care of your children it's going to be accepted. No. It's all about the violence that comes with it.
You have to be able to stand strong and go out there at a drop of a dime and shoot someone, kill someone at a drop of a dime, it can't even be a second thought. Because, when you do think, it shows . . . fear, and you're not supposed to show fear or hesitation.

The sets often fight over infractions such as selling drugs on another set's turf.

DeVirgiliis explained that the present investigation initially focused on Trenton because the police had received information "that [a particular NTG member] was running the set state-wide from his jail cell [in Trenton State Prison] through the use of a wireless telephone facility." The police then extended their investigation to that area. In early 2006, they began tracking phone conversations of the NTG's DOG and one of its OGs (the "OG") which continued for about three months until the investigation concluded on July 26, 2006.

The investigators arrested defendant on May 17, 2006, in Atlantic City. "He was initially being intercepted on . . . [the OG's] telephone, " and was one of the OG's subordinates. Defendant went by the alias "Torch, " and he had several gang-related tattoos.

Daniel Bergin, a detective in the NJSP's street gang north unit, oversaw wiretaps and physical surveillance in the northern portion of the state for the investigation. He testified that "thousands upon thousands of calls" were intercepted across the state.

On April 26, 2006, investigators intercepted a call between defendant and the OG, during which they discussed a drug transaction and a dispute with a rival Bloods set. On May 4, 2006, defendant called the OG regarding another drug transaction.

In early May 2006, investigators became aware that the OG was planning an assault "[a]round 20th Street in Newark." The OG "controlled the narcotics market in that area." On May 3, the OG learned that a man identified as "Black" was selling drugs in the neighborhood, and that other gang members would "shoot him." Black was a member of the Brick City Brim set of Bloods.

An employee of a local business testified that drug sales and associated assaults often occurred near that business. On May 3, 2006, the employee observed five black men begin arguing nearby. She fled into a nearby garage and heard "pop, pop, pop, " and called the police. The employee located one of the men hiding behind a dumpster bleeding profusely from his hand, and she attempted to administer first aid. Police later identified the injured man as C.E., who informed police that "he was trying to escape his assailants[, ] and he tried to climb over a fence that had barbed wire on it."

Moments after the shots were fired, investigators intercepted a call from the OG to defendant wherein the OG was yelling and asking where everyone was. On a subsequent call, the OG stated that "they had done what they intended to do, " and a later call showed the OG and defendant attempting to coordinate their locations following the shooting.

The OG also received a call from a member of the Atlantic City NTG set. The OG also told an unidentified male that "Torch" did not remember a firearm jamming during the shooting.

On the following evening, May 4, 2006, detective Harold Wallace of the Irvington Police Department responded to a shooting near the Garden Apartments on Crescent Lane in Irvington. Wallace explained that the area where the shooting occurred was "primarily Crip" (referring to the Crips, another rival gang). When Wallace arrived, the victim, A.C., was being treated by emergency personnel. A.C. had "multiple gunshot wounds" to his abdomen and legs, but he survived.

Wallace determined that the shooting occurred on the north side of the apartment complex, no more than 150 or 200 yards from where A.C. was found. Defendant stipulated that a blue and white Yankees baseball cap belonging to A.C. was found where the shooting occurred, but no shell casings were recovered. The police ultimately learned that a possible suspect went by the street name "Red, " who Wallace's partner later identified as defendant.

Around 4:00 p.m. on May 4, 2006, defendant visited a tenant who had lived in the apartments. Sometime after seven, the tenant saw A.C., defendant, and "a lot of other people" walk away to the left of her building toward Union Avenue. Around half an hour later, the tenant heard two or three gunshots. She ran inside after the first shot, and stayed inside for about five minutes. When she went back outside, she saw A.C. "collapsed on the ground, " holding his stomach. The next day, the police showed her a photograph of defendant, who she identified as Red.

At approximately 8:30 p.m. on May 4, 2006, investigators intercepted a call from the OG to defendant, during which defendant said, "I gotta go OT, man." Bergin explained that "OT" meant "out of town." Defendant told the OG he had to meet with him in person to explain the reason, which Bergin interpreted as meaning "something serious" occurred. Defendant told the OG that he was on 21st Street, which is near the Crescent Lane Housing Development.

About two minutes later, the OG indicated that he was going to get defendant. He stated, "He got to go OT, so go find out what's going on. He done did a solid." Bergin explained that the OG believed defendant had "done something significant on behalf of the [NTG] set." Almost an hour later, defendant was waiting for the OG. According to Bergin, the OG decided to relocate defendant because defendant had shot a Crip.

Between May 7 and May 17, 2006, defendant was in Atlantic City. The former NTG member, who was also a four-star lieutenant at the time, was responsible for defendant during that time period. Defendant provided updates "as to the occurrences happening down in . . . Atlantic City specifically with the [NTG s]et, instances with personnel issues, normal everyday Bloods-related business." Defendant then started running things in Atlantic City.

The OG directed defendant to take control of the operations in Atlantic City. While in Atlantic City, defendant informed the OG of a problem with A.P., who had bypassed the chain of command within the set and gone directly to the godfather, which is a serious violation. The OG instructed defendant to "beat [A.P.] severely enough to put him in the hospital."

On May 16, defendant told the OG that the Atlantic City NTGs were "having issues with their finances." The OG instructed that members who did not pay their dues "gonna get their ass[es] whooped" and "get disciplined." Defendant responded that he was "on that" and had his "discipline chain ready." The OG referred to the non-dues-paying members as "food, " meaning they were "subject to be the victim of some form of violence, ranging . . . from a physical assault up to and including" death "for violation of the rules, for some form of disrespect." Bergin explained that "if you're labeled 'food, ' it is a very serious term."

On May 17, 2006, the OG learned that A.P. was switching sets. Bergin explained that "[w]hen you take your oath, . . . you're making it to that particular set, to that organization, to that hierarchy. And to switch sets would be disrespectful, and it is a violation of the rules." It is viewed as "one of the most serious violations that somebody can commit."

During phone conversations on the evening of May 17, defendant asked the OG if A.P. should be assaulted or killed. The OG reiterated that he wanted defendant to break A.P.'s jaw, which defendant agreed to do. Bergin explained that defendant was expressing his willingness to "take it to a higher level" and "increase the discipline."

The OG ordered defendant to ensure that all of A.P.'s subordinates attend a meeting, or "bevin, " that night. Any subordinates who failed to appear were to be "who that, " meaning they were to be killed along with A.P. Defendant told the OG that he would need a clean vehicle and a firearm. He said, "It's all like, you already know, like it's already over for the kid. . . . I ain't got nothing to lose." Bergin interpreted this to mean that "in light of some of the other occurrences that have recently happened in his life, [defendant] has nothing to lose." The OG directed that they "get with . . . Four-Star [for] setting up [the] execution. You all start setting up the execution." Bergin explained that the OG was ordering defendant to set up A.P.'s execution.

After defendant gave the order to "assault and murder" A.P., he briefly left the area to search for a car to steal for use in finding A.P. Upon returning with the weapons, police units "respond[ed] to the area under the guise of a noise complaint, " and took defendant and the other gang members into custody. Defendant had been holding a gun, which he dropped after the police ordered him to do so, and then he ran. Ultimately, several officers and a police dog apprehended him.

Two handguns were found at the scene: a loaded .22 caliber automatic and a loaded .38 caliber revolver. One of the rounds removed from the revolver was a hollow point bullet, which is prohibited for possession by all but law enforcement personnel in New Jersey. Although no fingerprints were found on the weapons, an officer recognized the revolver as the gun defendant was holding prior to his attempted escape.

After a multiday trial, the jury convicted defendant on several counts of the indictment. On January 30, 2009, after the appropriate mergers, the judge sentenced defendant to a term of fifteen years in prison for first-degree racketeering; a consecutive extended term of forty years for conspiracy to murder and a consecutive term of fifteen years for attempted murder, both subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; concurrent terms of four years for conspiracy to distribute cocaine; and nine months for resisting arrest. The court ordered that defendant's aggregate sentence would run consecutively to his previously imposed federal term. This appeal followed.

On appeal, defendant raises the following points:
A. The Jury Instruction Commingled The Crimes Of Racketeering And Conspiracy To Commit Racketeering.
B. The Jury Was Allowed To Convict Based Upon "Racketeering Acts" Not Set Forth In The Racketeering Statute.


We first reject defendant's contention that the State failed to prosecute him within the 180-day limit imposed by the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to - 15. "The federal government and forty-eight states, including New Jersey, are signers of the compact." State v. Perry, ___ N.J.Super. ___, ___(App. Div. 2013) (slip op. at 7). "The IAD's purpose is 'to encourage the expeditious and orderly disposition of such [outstanding] charges and determinations of the proper status of any and all detainers based on untried indictments, informations[, ] or complaints' and to provide 'cooperative procedures' for making such determinations." Ibid. (quoting 18 U.S.C.A. app. 2, § 2, art. I; N.J.S.A. 2A:159A-1). Pursuant to N.J.S.A. 2A:159A-3(a):

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information[, ] or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. . . .

[(Emphasis added).]

New Jersey courts have interpreted the continuance provision to permit grant of a continuance, on good cause shown, "at any time prior to an actual entry of an order dismissing the indictment pursuant to . . . N.J.S.[A.] 2A:159A-5(c)." State v. Lippolis, 107 N.J.Super. 137, 147 (App. Div. 1969) (Kolovsky, J.A.D., dissenting), rev'd on dissent, 55 N.J. 354 (1970); accord State v. Miller, 299 N.J.Super. 387, 397 (App. Div.), certif. denied, 151 N.J. 464 (1997). "[W]hether good cause exists . . . must be resolved from a consideration of the totality of circumstances in [a] particular case." Lippolis, supra, 107 N.J.Super. at 148-49 (Kolovsky, J.A.D., dissenting).

"[T]he 'necessary or reasonable continuance' provision is, by clear implication, the sole means by which the prosecution can obtain an extension of the time limits over the defendant's objection." New York v. Hill, 528 U.S. 110, 116, 120 S.Ct. 659, 665, 145 L.Ed.2d 560, 567 (2000). The requirement that defendant or his counsel be present "is directed primarily, if not indeed exclusively, to prosecution requests that have not explicitly been agreed to by the defense." Ibid. This ensures an adequate appellate record, protects the defendant's right to a speedy trial, and "guarantee[s] that the State does not extend the expiration dates arbitrarily or capriciously in derogation of [the] defendant's rights without his knowledge and the ability to be heard." Miller, supra, 299 N.J.Super. at 398.

At the time of his indictment, defendant was incarcerated in a federal prison in California. On August 27, 2008, defendant arrived in New Jersey. By the State's calculation, the 180 day IAD deadline was due to expire on September 27. On September 3, 2008, the judge conducted a hearing and indicated that defendant could "demand a trial within 180 da[ys] in which case he may not be so well prepared to go ahead, and it may be to his detriment." Given the voluminous nature of discovery, the State expressed concern about defense counsel's ability to prepare in a short period of time to meet the September 27 deadline and warned that they might be "setting [them]selves up for an appeal."

Defense counsel and the court offered defendant the opportunity to decide whether to delay the trial. The following discussion occurred:

COURT: And what is it that you want to do, do you want a trial at the end of September? The [c]ourt will set it down, or do you want it to be late October, early November after you've had an opportunity to review all of the documents and --
DEFENDANT: I want a trial in September.
COURT: What?
DEFENDANT: In September.
COURT: All right. And you understand that there's a voluminous amount of documents?
DEFENDANT: Yes, I understand. In that same proceeding, the court scheduled the trial for September 22, 2008. The State then pointed out that the court could delay the trial date beyond September 22, 2008 for good cause shown. The judge responded that it would "probably adjourn [the trial] about one month, " and defendant's counsel did not object.

The judge then entered an order dated September 8, 2008, and stated:

Although discovery in this case is voluminous - over 7, 000 documents, hundreds of thousands of intercepted telephone calls, electronic surveillance logs and transcripts, approximately 100 consensual recordings, and taped interviews of arrested defendants - which, in the mind of the court, does not allow sufficient time for counsel to properly prepare, the defendant personally insists upon a trial to commence within the 180-day time frame. In essence, the defendant insists upon going to trial with an insufficiently prepared attorney, fully aware that at a later date he may argue the ineffective assistance of counsel at a post conviction relief proceeding. He is, in effect, inviting the court to deny him a fair trial. Faced with the possibility of having to try the case twice, the State . . . moved for continuance of the trial date.

Thus, in accordance with N.J.S.A. 2A:159A-3(a), which permits courts to grant "any necessary or reasonable continuance, " the court rescheduled the trial for October 14, 2008. The court reasoned that its calendar contained fifty-six matters for the weeks of September 22 and 29, 2008, and the judge had a scheduled vacation planned for the week of October 6. Moreover, "the court [had] the obligation to insure a fair trial, which include[d] giving defense counsel adequate time to prepare." Thus, "[c]ommencement of trial on September 22, 2008, as demanded by the defendant, would disturb a heavily scheduled court week, cause a one-week hiatus in the trial to allow for the court's vacation, and deny defense counsel adequate time to prepare for trial." In fact, on October 1, 2008, defense counsel applied for a continuance "based on the voluminous discovery" in the case. He explained that, "[a]s this case moves forward . . . it is clear to me, after having spent several days reading the transcripts of the Grand Jury, that providing an effective defense . . . beginning October 14, 2008[, ] is simply not possible." Counsel noted that his client was facing a life sentence if convicted, and insisted that he could not "effectively assist him under the . . . time constraints." Thus, counsel requested an adjournment of at least sixty days. The court then granted defendant's request for an adjournment and scheduled the trial for January 5, 2009.

Here, "appellate review of the reasons for the continuance is not hampered because the record clearly supports and demonstrates the need for the continuance." Miller, supra, 299 N.J.Super. at 399. There is no evidence that the continuance was required due to the State's error or intentional delay. Rather, the primary concern here was whether defendant would be prejudiced by a trial date that did not provide his counsel adequate preparation time. Of legitimate secondary concern was the court's vacation schedule and crowded calendar. See State v. Mason, 90 N.J.Super. 464, 474 (App. Div. 1966) (stating that "[t]he intervening court vacation and the crowded condition of the trial calendars may possibly have warranted a discretionary continuance of trial beyond the 180 days"). Thus, the totality of the circumstances evince good cause for the court's grant of the continuance. Lippolis, supra, 107 N.J.Super. At 148-49 (Kolovsky, J.A.D., dissenting).

The propriety of the first continuance is further supported by defense counsel's subsequent request for a second continuance of at least sixty days. "[M]any decisions pertaining to the conduct of the trial, " including scheduling matters, are within counsel's authority to manage without assent from his or her client. Hill, supra, 528 U.S. at 114-15, 120 S.Ct. at 664, 145 L.Ed.2d at 566-67. Thus, where defense counsel agrees to a continuance, defendants are deemed to have waived their speedy trial rights under the IAD. See id. at 118, 120 S.Ct. at 666, 145 L.Ed.2d at 569. Permitting defendants to later seek dismissal with prejudice on the basis of the delay "would enable [them] to escape justice by willingly accepting treatment inconsistent with the IAD's time limits, and then recanting later on." Ibid. Moreover, even though defendant's continuance request occurred after expiration of the 180-day period, the fact that it occurred at all "plainly indicates that defendant was not prepared to proceed to trial within the statutory time period." State v. Buhl, 269 N.J.Super. 344, 355-57 (App. Div.), certif. denied, 135 N.J. 468 (1994). Thus, his "'request[] to be treated in a manner contrary to [the IAD]'" constituted waiver of his right to have trial commence within the statutory period. Id. at 357 (quoting United States v. Eaddy, 595 F.2d 341, 344 (6th Cir. 1979)).


Defendant argues for the first time on appeal that the judge violated his Sixth Amendment rights to an impartial jury by conducting an off-the-record phone call with a juror who allegedly expressed concerns for his safety. Because defendant failed to object at the time of trial, this argument is reviewed for plain error. R. 2:10-2.

On January 7, 2009, the day after the jury was selected, but prior to opening statements, the judge informed counsel that:

[COURT]: [O]ne other thing for the record. The [c]ourt received a call from a juror, number eight . . ., this morning, who expressed some concern for his safety. The [c]ourt informed [him] that it did not believe that his safety was an issue in this case, and informed him that it would be discussed further at 1:30 this afternoon.
It is the [c]ourt's intention to remind the jurors that if anyone attempts to contact them that they are to bring it to the immediate attention of the sheriff's officers or to the attention of the [c]ourt. It is the [c]ourt's intention further to tell the jurors that there is no particular reason to be concerned for their safety.
If there is something more that the [c]ourt should say or something less, I would be glad to hear from [counsel], but the [c]ourt does believe that the matter must be addressed. If [juror number eight] expressed that concern, other jurors may have a similar concern.
[Prosecutor], anything to add to that?
[PROSECUTOR]: I have nothing to add, Judge, but I think it might be appropriate, given the nature of this case, to check people and identify people who come into the courtroom so in the event there is —
[COURT]: The [c]ourt will ask . . . the chief sheriff's officer here[] to have people identify themselves . . . .

Neither counsel objected nor requested that an interview of the juror take place. Prior to commencing trial, the court instructed the jury:

The [c]ourt received a communication from a juror this morning expressing some concerns for safety of jurors, and probably because of the nature of the trial. The [c]ourt can inform you that, as it did yesterday, if you have a sense that anyone is attempting to contact you, or speak with you about this trial, you're to bring it to the immediate attention of the [c]ourt or a sheriff's officer, and it will be dealt with.
The [c]ourt does not anticipate that that will happen. The [c]ourt does not have concerns, deep concerns for your safety. You're looking at a judge whose name is in the phone book, and I've been a judge here [twenty-one] years. So I think that you can know that safety is not a paramount concern. But if you feel that in any way anyone has approached you, please bring it to the immediate attention of the [c]ourt.

Again, defense counsel did not object or ask to interview the juror.

Included within a defendant's right to "trial by an impartial jury, " U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10, is "the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983).

Where it is possible that a juror has been exposed to extraneous information, it is the court's obligation to "act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. The court must determine whether the juror is capable of remaining impartial and deciding the case based solely on the evidence presented at trial. Id. at 558. Thus, the court should interrogate the juror in counsel's presence. Ibid. If taint is found, the inquiry expands to the entire jury. Ibid. Where a tainted juror is excused, the court must decide whether to continue trial or grant a mistrial. Ibid.

Generally, counsel should be present whenever a judge "addresse[s] or interact[s] with the jury in any manner." State v. Morgan, 423 N.J.Super. 453, 458, 468 (App. Div. 2011) (concluding judge's ex parte communication with deliberating jury, which was "clearly improper because it was not conducted in the presence of counsel, addressed only innocuous" issues and did not warrant reversal), certif. granted, 210 N.J. 477 (2012). Rule 1:2-1 requires "that all trials be conducted in open court." Id. at 466. As such, judges should "scrupulously avoid engaging in [their] own ex parte and unrecorded communications with the jury." State v. Basit, 378 N.J.Super. 125, 131 (App. Div. 2005). "Where the record does not reflect what transpired during the ex parte communication, reversal is necessary since reviewing courts are unable to determine whether the communication was prejudicial." Morgan, supra, 423 N.J.Super. at 467. On the other hand, "where the presence in the record of an adequate description of the ex parte proceeding may permit a reviewing court to determine that the presumption of prejudice has been dispelled, reversal is not necessarily required." Ibid. (internal quotation marks omitted).

The "presumption of prejudice" is rebutted where "the communication [is] preserved for appellate review." Id. at 469; see State v. Brown, 275 N.J.Super. 329, 334 (App. Div. 1994) (holding that the record showed that the judge's ex parte communication with the jury "had no capacity to prejudice defendant" where "the judge's summarization of [the] communication, given in open court in front of the jury, counsel[, ] and also apparently defendant, confirmed that his communication had been thus limited"), certif. denied, 138 N.J. 269 (1994). Prejudice is less likely where the judge's ex parte communication does not include "any supplemental instructions regarding the applicable law, the facts of the case or the jury's responsibilities, but [is] instead confined to clarification of the jury's prior questions." Brown, supra, 275 N.J.Super. at 334.

Although the court's ex parte conversation with juror number eight should have been followed by voir dire on the record in the presence of counsel, the court immediately informed counsel on the record of the subject matter of the conversation, which "had no capacity to prejudice defendant."[3]Id. at 334. The court's summary of the conversation demonstrated that it was limited to juror number eight's concern, the court's general assurance that safety was not an issue, and a promise to discuss the issue further in open court. See ibid. The court did not discuss its instructions, the applicable law, or the facts of the case. See ibid.

Moreover, defense counsel neither objected nor requested that the juror be interviewed on the record. Trial errors which are consented to by defense counsel rarely give rise to plain error. Ibid. Thus, although the court's ex parte conversation, however minimal, with juror number eight should have occurred in open court, the circumstances of the case show that the conversation did not have "a clear capacity to produce an unjust result." Ibid. (citing R. 2:10-2).

Furthermore, there is no evidence that the juror was exposed to any sort of extraneous influence. Rather, the juror expressed a general concern for his safety, although it was unclear whether his inquiry was indicative of concern about his ability to serve. However, the court properly advised the jury that they were to inform the court or a sheriff's officer immediately if they were approached or contacted. It is presumed that jurors follow a court's instructions. State v. Perry, 124 N.J. 128, 166 (1991).

Additionally, there is no evidence that, as defendant now argues, juror number eight was deceptive in his voir dire. If anything, the juror's impartiality was established in his voir dire, during which he asserted that nothing about the case would "interfere with [his] impartial judgment." Juror number eight was, at that time, aware that the charges alleged against defendant included racketeering, which resulted from his alleged membership in the NTGs, as well as murder and other serious crimes, and defendant did not challenge the juror's inclusion on the jury pursuant to Rule 1:8-3(b). Therefore, there was no plain error.


Defendant argues for the first time on appeal that his Sixth Amendment confrontation right was violated when Detective Wallace testified about "witnesses in the area" naming defendant as a possible suspect in A.C.'s shooting. Because this issue was not raised below, it is reviewed for plain error, requiring this court to ask whether the complained-of testimony was "clearly capable of producing an unjust result." R. 2:10-2. Where "a case is fortified by substantial credible evidence, " it is unlikely that plain error occurred. State v. Irving, 114 N.J. 427, 448 (1989). The testimony to which defendant now objects is as follows:

Q: Did you talk to people in the area who may have been witnesses to that shooting?
A: Yes.
Q: All right. And were these people cooperative?
A: They were cooperative enough to point me in directions, but not cooperative enough to give me names and statements or anything.

Wallace testified that "witnesses in the area" informed police of the direction A.C. ran following the shooting. Wallace explained that he and his partner "received information which gave us a street name of a possible suspect. . . . Red." (Emphasis added).

"It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973) (quoting McCormick on Evidence § 248 (2d ed. 1972)). This testimony is permissible "to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. However, if the officer repeats "what some other person told him concerning a crime by the accused[, ] the testimony violates the hearsay rule, " as well as the defendant's confrontation right. Id. at 268-69. In other words, "both the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." State v. Branch, 182 N.J. 338, 350 (2005) (emphasis added).

In Branch, a detective testified that, despite a lack of other physical evidence, he placed the defendant's photo in an array based on information received. Id. at 346-47. The anonymous person who provided that information was not called to testify, and the Court pointed out that no evidence, other than subsequent identifications from photo arrays, indicated that the defendant was a possible suspect. Id. at 347-48. Under the circumstances, there was no need for the detective to explain why he placed the defendant's photo in the array. Id. at 348. "Thus, the jury was left to speculate that the detective had superior knowledge through hearsay information implicating defendant in the crime." Id. at 347-48.

The Court explained that police are permitted to explain their actions by using the phrase "'based on information received' . . . only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person." Id. at 352. However,

[w]hen a police officer testifies concerning an identification made by a witness, such as in this case, what counts is whether the officer fairly arranged and displayed the photographic array and whether the witness made a reliable identification. Why the officer placed the defendant's photograph in the array is of no relevance to the identification process and is highly prejudicial. For that reason, we disapprove of a police officer testifying that he placed a defendant's picture in a photographic array "upon information received." Even such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source.

[Ibid. (citations omitted).]

Because no physical evidence linked the defendant to the crime scene, and other evidence was "far from overwhelming, " the Court determined that the case against the defendant was close. Id. at 353. Thus, although no objection was made to the complained-of testimony at trial, the "detective's damaging hearsay testimony . . . may have tipped the scales, " and the Court concluded that plain error occurred requiring reversal of defendant's convictions. Id. at 354.

Here, Wallace similarly asserted that defendant's photograph was shown to the tenant and A.C. based on information received that he was a "possible suspect" in the shooting. Thus, the testimony may have caused the jury to speculate as to whether the police had superior knowledge implicating defendant in the shooting. Branch, supra, 182 N.J. at 347-48. However, even if the testimony constituted improper hearsay, it did not rise to the level of plain error. Here, in contrast to Branch, the State presented significant additional evidence of defendant's guilt. See Irving, supra, 114 N.J. at 448 (plain error unlikely where "a case is fortified by substantial credible evidence"); State v. Douglas, 204 N.J.Super. 265, 275 (App. Div.) (finding no plain error where State's case was "fortified by direct positive evidence of identification"), certif. denied, 102 N.J. 378 (1985).

The State produced evidence showing that defendant, who had a tattoo of "Red" on his arm, had been in the area shortly before the shooting, and had left in a group that included A.C. Around the same time the shooting occurred, the police intercepted a call wherein defendant, who was near the location of the shooting, told the OG he needed to leave town because something serious had happened. Other calls revealed that defendant had shot a Crip in front of his house, and that he and the OG were attempting to discover if anyone had talked to the police. Even without the hearsay testimony, this evidence was sufficient to establish defendant's guilt. Finally, Wallace's testimony about approaching defendant as a possible suspect was fleeting in the course of the trial. Thus, it is unlikely that it "led the jury to a result it otherwise might not have reached." Irving, supra, 114 N.J. at 448.


We reject defendant's contention that the judge erred by failing to issue a limiting instruction relating to "other crimes" evidence regarding NTG's propensity for violent acts. Again, we apply the plain error standard because defendant did not object to the evidence during trial. R. 2:10-2.

Defendant submits that "this case was saturated with direct testimony about the [NTGs'] propensity to commit violent criminal acts, " citing several examples of such testimony, including that the set was formed in prison, members considered violence a "badge of honor, " members sold drugs and committed shootings, stabbings, robberies, and homicides, and the set had firearms available in numerous locations across the state.

Other crimes evidence is "inherently prejudicial, " and, if admitted under N.J.R.E. 404(b), requires the court to "instruct the jury on the limited use of the evidence." State v. Marrero, 148 N.J. 469, 495 (1997). The court must explain "that the proper use of such evidence is to prove a relevant issue in dispute and not to impugn the character of the defendant." State v. Blakney, 189 N.J. 88, 92 (2006). The "essential point" of the limiting instruction is to inform the jury that the other crimes evidence may not be used "to prove [the] defendant's disposition to commit the offenses with which he was charged." State v. Stevens, 115 N.J. 289, 309 (1989).

With respect to gang membership, although that alone is not evidence of criminal activity, "it is at the very least strongly suggestive of such activity." State v. Goodman, 415 N.J.Super. 210, 227 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Thus, where evidence of gang membership is presented, a limiting instruction is usually required "because the average juror would likely conclude that a gang member has engaged in criminal activity. Such evidence has the potential to 'taint' a defendant in much the same way as evidence of actual criminal conduct." Ibid.

However, Goodman is distinguishable from this case because there the defendant was not charged with racketeering. Id. at 214. In contrast, here, although evidence of defendant's role in the NTG set and the criminal nature of the gang had the potential to prejudice him, the evidence was not "other crimes" evidence because it was direct evidence admitted as proof of racketeering.

In accordance with N.J.S.A. 2C:41-2(c), "[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." To this end, the State must present evidence of both an "enterprise" and "a pattern of racketeering activity." State v. Ball, 141 N.J. 142, 161-62 (1995), cert. denied, 516 U.S. 1075, 116 S.Ct. 779, 133 L.Ed.2d 731 (1996).

Because the enterprise is separate from the incidents comprising the pattern, an organization is required. Id. at 162. "The hallmark of an enterprise's organization consists rather in those kinds of interactions that become necessary when a group, to accomplish its goal, divides among its members the tasks that are necessary to achieve a common purpose." Ibid. Evidence of a structure within the enterprise "support[s] the inference that the group engaged in carefully planned and highly coordinated criminal activity." Ibid. In general, the evidence presented for proof of an enterprise will establish the number of persons involved, their knowledge of the organization's objectives, the manner in which they interacted, their individual roles, the level of planning, the decision-making process, implementation of decisions, the frequency of criminal activity, and the amount of time between each incident. Id. at 162-63. Thus, here, the State had to prove that the NTGs existed and were an "enterprise" under the racketeering statute. This required presentation of evidence regarding the set, its members, and their activity.

In United States v. Coppola, 671 F.3d 220, 244 (2d Cir. 2012), cert. denied, ___U.S. ___, 133 S.Ct. 843, 184 L.Ed.2d 653 (2013), the Second Circuit addressed a similar contention in a racketeering case that the defendant's trial was unfair because the jury heard inadmissible evidence of crimes committed by crime families which "did not specifically implicate" the defendant. The Second Circuit concluded that:

such evidence [was] relevant to prove both the enterprise and pattern elements of the charged racketeering crimes. . . . "[E]vidence of numerous criminal acts by a variety of persons" may be relevant to prove the enterprise and pattern elements of racketeering. Thus, even though a defendant "may reasonably claim no direct participation" in the acts of others, evidence of those acts may be relevant to prove (1) the "existence and nature" of the racketeering enterprise, and (2) a pattern of racketeering activity by the defendant "by providing the requisite relationship and continuity of illegal activities."

[Id. at 244-45 (citations omitted).]

Moreover, "[s]uch conduct is not 'other' crime[s] evidence . . .; rather, it is evidence of the very racketeering crimes charged." Id. at 245. Thus, even though the evidence presented in relation to the racketeering charge included proof of criminal activities that did not always involve the defendant, it was admissible as part of the State's efforts to prove the existence of an enterprise and a pattern of racketeering activity. Ibid.

As in Coppola, the court here properly admitted evidence of the criminal activity conducted by members of the NTGs on behalf of the set, as well as evidence of the set's history, hierarchy, and rules. Such evidence was relevant to the question of whether the set constituted an enterprise engaged in a pattern of racketeering activity in accordance with N.J.S.A. 2C:41-2(c). Thus, it should not have been excluded as other crimes evidence under N.J.R.E. 404(b).

However, unlike in Coppola, the court here failed to provide limiting instructions, although in the course of the racketeering instruction it referred to the "enterprise's goals" as those specific crimes with which defendant was charged. Nevertheless, the court's failure to issue limiting instructions, even without a request from defendant, was error. State v. Clausell, 121 N.J. 298, 322-23 (1990). The fact that the jury acquitted defendant of several serious charges demonstrates, however, that it did not make blanket assumptions about his guilt based on the criminal activity of his fellow gang members. For example, although the State presented significant evidence that members of the NTGs were involved in the attempted murder of Black, they acquitted defendant of this charge. Thus, the absence of limiting instructions was harmless under the circumstances.


Defendant contends that the trial court erred by denying his motion for acquittal on count fourteen, the attempted murder of A.C. The court denied the motion, noting that the evidence showed defendant in proximity to A.C. at the time of the shooting, and that it was possible for the jury to "believe that . . . defendant . . . acted with reason to shoot [A.C.]"

When, under Rule 3:18-1, a motion for acquittal is made at the close of the State's case, "the broad test . . . is whether the evidence at that point is sufficient to warrant a conviction of the charge involved." State v. Reyes, 50 N.J. 454, 458 (1967). Specifically, the court must ask "whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Id. at 459. The same standard applies on appellate review. State v. Kittrell, 145 N.J. 112, 130 (1996).

When considering the jury's verdict in light of circumstantial evidence, the court must recognize that it is not necessary for the veracity of inferences drawn by the jury to be established beyond a reasonable doubt. Id. at 131. Rather, it need only be "'more probable than not'" that the inferences are true. Ibid. (quoting State v. Brown, 80 N.J. 587, 592 (1979)). Moreover, evaluation of "witness credibility and the weight and worth of the evidence" are jury functions. State v. Taccetta, 301 N.J.Super. 227, 241 (App. Div.), certif. denied, 152 N.J. 188 (1997). Thus, "Appellate review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its duty." Ibid.

Although there was no direct evidence that defendant shot A.C., the record was replete with circumstantial evidence from which the jury could reasonably infer defendant was the shooter. For example, A.C. lived in the apartment complex where the shooting occurred, an area which was primarily Crip. Shortly before the shooting, defendant was witnessed in a group with A.C. Immediately following the shooting, defendant, who was near the apartments, called the OG and told him that he needed to get out of town. Bergin provided numerous interpretations of subsequent calls, testifying that defendant's unwillingness to be explicit over the phone indicated he had done something serious. According to Bergin, the OG later told another NTG member that defendant had shot a Crip in front of the Crip's house.

Finally, contrary to defendant's contention, Bergin did not admit that defendant's unwillingness to talk may have been because he was a witness to the shooting. Instead, Bergin explained the interpretation that defendant was only a witness might be valid if that call was viewed alone, but "in the context of [Bergin's] overall understanding of the investigation, [that interpretation was] not possible." Thus, "viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, " we conclude there was no error. Reyes, supra, 50 N.J. at 458.


Finally, defendant argues for the first time on appeal that the judge erred by giving a flawed racketeering jury charge. He contends that the judge's instruction commingled the crimes of racketeering and conspiracy to commit racketeering. And, he asserts that the jury's verdict on the racketeering charge was based on "racketeering acts" that are not set forth in the statute, N.J.S.A. 2C:41-1(a)(1).

Because defendant did not object to the charge when it was given, he must demonstrate plain error on appeal. R. 2:10-2. Where a jury charge is concerned, "[f]or an error to constitute plain error, . . . not every possibility of an unjust result will suffice. With a jury trial, the possibility must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). That being said, "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are at the heart of the proper execution of the jury function in a criminal trial." State v. Afanador, 151 N.J. 41, 54 (1997) (citations omitted) (internal quotation marks omitted).

As the New Jersey Supreme Court explained in Ball, supra, 141 N.J. at 151, under the New Jersey RICO act:

[I]t [is] a crime for a person to be employed by or associated with "an enterprise" and to engage or participate or become involved in the business of the enterprise "through a pattern of racketeering activity." N.J.S.A. 2C:41-2(b) and 2(c). The Act also makes it a crime for a person to conspire to engage in such conduct.

The State charged defendant in Count One of the indictment with racketeering, N.J.S.A. 2C:41-2c, and conspiracy to commit racketeering, N.J.S.A. 2C:41-2d, both of which are contained within the racketeering statute, N.J.S.A. 2C:41-2.[4] Subsection d of N.J.S.A. 2C:41-2 states that it is unlawful to conspire, as defined by N.J.S.A. 2C:5-2, to commit any of the offenses listed in subsections a, b, or c of N.J.S.A. 2C:41-2. Thus, the State properly charged defendant with violating the racketeering statute under two theories. Defendant did not request the judge to charge the jury that they must agree unanimously on one theory or the other. Juror unanimity is not required when a statute embodies a single offense which can be committed in a number of different ways. State v. Frisby, 174 N.J. 583, 597 (2002); State v. Parker, 124 N.J. 628, 634-35 (1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed.2d 625 (1992).

The essence of the crime of racketeering "is the involvement in the affairs of an enterprise through a pattern of racketeering activity." Ball, supra, 141 N.J. at 155. Thus, to convict a defendant of racketeering, a jury must determine whether the State successfully proved both the existence of an enterprise and a pattern of racketeering activity. Id. at 155, 163. Pursuant to N.J.S.A. 2C:41-1d, a "pattern of racketeering activity" requires:

(1) Engaging in at least two incidents of racketeering conduct one of which shall have occurred after the effective date of this act [June 5, 1981] and the last of which shall have occurred within [ten] years (excluding any period of imprisonment) after a prior incidence of racketeering activity; and
(2) A showing that the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants[, ] or victims[, ] or methods of commission[, ] or are otherwise interrelated by distinguishing characteristics and are not isolated incidents.

"[T]he primary criterion of New Jersey's 'pattern of racketeering activity' [requirement] is 'relatedness.' That calls for the application of a broad standard involving the totality of all relevant circumstances, which may include" the continuity of the activity. Ball, supra, 141 N.J. at 169.

The crimes which constitute racketeering activity for purposes of whether a pattern exists are enumerated in N.J.S.A. 2C:41-1a. Here, the court instructed the jury that the alleged "incidents of racketeering activity" were "committing, attempting to commit, or conspiring to commit" various crimes with which defendant also was charged. Specifically, the court instructed the jury:

In the event that you find the defendant guilty of racketeering, then you must answer the following questions: Has the State proven beyond a reasonable doubt [that] the defendant is guilty of the following crimes: One, attempted murder of Black; two, aggravated assault second degree of Black; three, attempted murder of [A.C.]; four, conspiracy to murder [A.P.]; five, unlawful possession of a weapon; six, possession of a weapon for an unlawful purpose; seven, possession of a prohibited device; eight, aggravated assault, pointing a weapon at or in the direction of Patrolman Daryl Hall[; nine, ] conspiracy to . . . possess with intent to distribute . . . a controlled dangerous substance.

The court further explained that the State had to "prove beyond a reasonable doubt that the defendant committed at least two of [those] crimes and that the crimes he committed were a continuing series of crimes that constitute a pattern of racketeering." The crimes also were listed on the verdict sheet for the racketeering count under the question, "Has the State proven beyond a reasonable doubt the defendant's guilt with respect to the following crimes?" Moreover, the verdict sheet referred only to racketeering and not conspiracy to commit racketeering.

Although N.J.S.A. 2C:41-1a does not specifically include conspiracy to commit murder, attempted murder, or conspiracy to commit a drug crime within the definition of racketeering activity, those crimes are implicitly and logically included. N.J.S.A. 2C:41-1a(2) provides that "any conduct defined as 'racketeering activity' under Title 18, U.S.C. § 1961(1)(A), (B)[, ] and (D)" constitutes racketeering activity under the New Jersey statute as well. The federal statute includes "any act or threat involving murder" within its definition, thereby encompassing conspiracy to commit murder and attempted murder. 18 U.S.C.A. § 1961(1) (emphasis added). With respect to the drug crime, N.J.S.A. 2C:41-1a(1)(u) defines "all crimes involving illegal distribution of a controlled dangerous substance or controlled substance analog, except possession of less than one ounce of marijuana" as racketeering activity. (Emphasis added).

Thus, the court's use of the terms "conspiracy" or "conspired" in reference to these alleged crimes was not improper. Moreover, it was unlikely to confuse the jury, as the court already had issued its instructions regarding the other charges against defendant, which included all of the crimes listed as potential racketeering activity. At the beginning of its instructions, the court informed the jury that it was "instructing [them] in the reverse order of the indictments because the charges build and culminate towards the first charge, " racketeering. Thus, the potential for confusion was minimal, if not non-existent.

Finally, defendant points out that the weapons and assault charges the court included in its instruction and on the verdict sheet are not considered racketeering activity under the statute, thereby potentially further misleading the jury and allowing defendant to be convicted on improper grounds.

Although, as conceded by the State, these crimes were improperly included in the court's instruction and on the verdict sheet, any error is harmless. The jury had an adequate basis to find defendant guilty of racketeering using the three statutorily enumerated racketeering activities: (1) the attempted murder of A.C.; (2) conspiracy to murder A.P.; and (3) conspiracy to possess or possess with intent to distribute a controlled dangerous substance. The fact that the jury also found defendant guilty of two of the weapons charges is immaterial since only two predicate acts are required for conviction. N.J.S.A. 2C:41-1d(1).

Moreover, even with the weapons charges removed, the remaining crimes are sufficiently similar in either purpose, result, participants, or method of commission to satisfy the requirement of N.J.S.A. 2C:41-1d(1). Although the crimes occurred in different places and involved different victims, the evidence demonstrated that defendant was a direct participant in each crime. Moreover, a significant amount of testimony was presented showing that all of defendant's criminal acts were committed on behalf of the NTG set. Thus, the crimes were sufficiently interrelated to establish a pattern, and it is unlikely the jury would have found otherwise had the weapons charges been removed from the verdict sheet.

Thus, any errors in the instructions and verdict sheet were harmless, and certainly do not rise to the level of plain error. The instructions were understandable, clear, and unlikely to have caused confusion among the jurors. See Afanador, supra, 151 N.J. at 54. Under the circumstances of the case, and in light of the overwhelming evidence of defendant's guilt, it is unlikely that the complained-of errors "led the jury to a result it otherwise might not have reached." Jordan, supra, 147 N.J. at 422 (internal quotation marks omitted).

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).


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