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State v. Smart

Superior Court of New Jersey, Appellate Division

June 7, 2013

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

PER CURIAM

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:
POINT I
THE CHARGES AGAINST DEFENDANT MUST BE DISMISSED BECAUSE THE STATE FAILED TO PROSECUTE DEFENDANT WITHIN THE 180-DAY LIMIT OF THE INTERSTATE AGREEMENT ON DETAINERS. THE TRIAL COURT ALSO VIOLATED THE TERMS OF THE IAD BY ENTERING AN ORDER POSTPONING THE TRIAL DATE OVER DEFENDANT'S OBJECTION WITHOUT HOLDING THE REQUIRED HEARING IN THE PRESENCE OF DEFENDANT OR HIS ATTORNEY. (Partially Raised Below).
POINT II
THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED BY A DETECTIVE'S TESTIMONY THAT "WITNESSES IN THE AREA" HAD INDICATED THAT HE WAS "A POSSIBLE SUSPECT" IN THE [A.C.] SHOOTING. (Not Raised Below).
POINT III
IN THIS CASE, WHERE A GREAT DEAL OF EVIDENCE HAD BEEN PRESENTED ABOUT THE CRIMINAL ACTIVITIES AND THE VIOLENT TENDENCIES OF THE NINE TRE BLOODS, THE TRIAL COURT'S FAILURE TO GIVE A RULE 404(b) ...

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