NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-01-0069.
Theresa Yvette Kyles, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kyles, of counsel and on the briefs).
Joshua D. Detzky, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Mr. Detzky, on the brief).
Before Judges Parrillo, Harris and Guadagno
Tried by a jury, defendant Andrew Contaldi was found guilty of fifty-five counts of third- and second-degree drug offenses and one count of first-degree being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. For the latter crime, defendant was sentenced to life imprisonment with a twenty-five year period of parole ineligibility. The remaining counts were merged with defendant's conviction for second-degree distribution of cocaine, N.J.S.A. 2C:35-5b(2), for which defendant received a concurrent seven-year term with a three-year parole bar. The court also imposed a single Drug Enforcement and Demand Reduction (DEDR) penalty of $3, 000, pursuant to N.J.S.A. 2C:35-15, although the judgment of conviction incorrectly reflects that two DEDR penalties, totaling $5, 000, were imposed. Defendant appeals, and we affirm save for a limited remand to correct the judgment of conviction to reflect only one DEDR penalty.
According to the State's proofs, in early December 2007, the Monmouth County Prosecutor's Office commenced an investigation of defendant based on a tip from a confidential informant (CI) that defendant was selling controlled dangerous substances. Over the course of a three month period ending on March 5, 2008, defendant and his associates engaged in eleven drug transactions with Sergeant Todd Rue, an undercover detective with the Monmouth County Prosecutor's Office Narcotics Strike Force.
In the first transaction on December 4, 2007, as Sergeant Rue listened in, the CI placed a telephone call to defendant to make arrangements to purchase cocaine. Defendant directed the CI to contact Philip Dorsi instead and provided a telephone number to reach Dorsi. The CI then arranged to buy cocaine from Dorsi and later met him to make the purchase. At that time, the CI introduced Dorsi to Sergeant Rue "very briefly."
On December 17, the CI, using the same contact phone number, bought more cocaine from Dorsi, who arrived at the prearranged location in the same green Nissan Maxima he had used during the previous transaction. Rue again accompanied the CI and was told by Dorsi that he could contact him directly from then on. As instructed, Rue bought cocaine directly from Dorsi on January 3, 2008. On January 9, Rue again called Dorsi, dialing the same phone number, but spoke instead to defendant, who answered the phone. Rue met with defendant at the same location where Rue had previously met Dorsi — the Shell gas station in Keyport — and purchased cocaine in the back of the gas station mini-mart where he was directed by defendant to go.
On January 11 and January 24, Rue again met with defendant and purchased more cocaine. On both occasions, they met at the same Shell gas station and transacted business in the back of the mini-mart. On the former occasion, defendant arrived in the same green Nissan Maxima that Dorsi had driven during previous drug sales with Rue, and on January 24, defendant arrived in a black 1999 Mazda Millennium registered to his girlfriend.
On January 30, 2008, Rue placed a recorded call to the same phone number. This time, Dorsi answered the phone and handed it to defendant, who explained that the phone number "was like a business number, " and its calls were being forwarded to his personal cellphone. Defendant then gave Rue his personal phone number. During the conversation, Rue told defendant that he wanted eight grams of cocaine and asked if defendant could "pump [the bags] up a little bit" because the previous bags were "a little short." To make up the difference, defendant agreed to give Rue a bag of cocaine for free. As arranged, the two met in the Shell gas station mini-mart and defendant gave Rue nine bags of cocaine in exchange for $400. During this transaction, Rue was wearing a recording device, and recorded defendant informing Rue that "he was going in on a thirty-day sentence in Middlesex, " and that Rue "would be dealing with [his brother Michael Maldonado] while he was away."
On February 4, defendant again confirmed that Maldonado was handling the business while defendant was unavailable:
I did tell [Maldonado] about you so don't even worry about it. I gave him a list of people that, for him to be able to deal with you know.
You have [my personal cellphone], . . . you have the other business number Phil's number. I'm gonna also give you my brother's personal number.
[J]ust call my brother and ahh you have all the numbers . . . . Alright, I'll see you in a month.
Rue's next three drug transactions were with Maldonado on February 4, 13 and 20, 2008. On the last date, Rue inquired how much an ounce of cocaine would cost, to which Maldonado replied probably about $1200 but that he would have to get back to him.
By the time of the next contact on February 29, 2008, defendant was out of the county jail and informed Rue to deal with him instead, stating "I can take care of all that, I'm home now." Rue's final drug transaction with defendant occurred one week later, on March 5, 2008, at the same Shell gas station mini-mart; Rue purchased ten bags of cocaine from defendant for $430.
Around the time that Rue's investigation of defendant ended, Red Bank Police Officer Robert Campanella, who was temporarily assigned to the Narcotics Strike Force, "was assigned to act in an undercover capacity in an attempt to purchase narcotics, specifically cocaine, from [defendant]." Over the course of the following two months, Campanella conducted an undercover investigation into defendant and his drug business.
On March 30, Campanella and his CI met with defendant to buy cocaine. Defendant did not have any immediately available so he apparently called a third-party and told them that Campanella was "okay to deal with." He then gave Campanella the same phone number that Rue had been using to contact first Dorsi and then defendant. During this conversation, defendant boasted about the quality of his cocaine, stating, "I don't play games with my coke. It's not cut with anything. You get it the same way I get it." Defendant also attempted to recruit Campanella to deal for him, asking if he could "move bricks of heroin for [him]."
Later that day, Campanella called the phone number and arranged to make a purchase with Dorsi, who instructed Campanella to meet him in the back of the Shell gas station mini-mart in Keyport. When Campanella expressed concern over security cameras in the store, Dorsi reassured him, explaining that "[w]e pay the store owner and employees good money, and they let us sell out of here whenever we want." Dorsi then handed Campanella four bags of cocaine in exchange for $200.
Campanella and his CI made another purchase of cocaine from Dorsi on April 28, 2008. On May 8, however, when the CI called the same phone number, Lance Schaller answered and informed the CI that he was "running [Dorsi's] packages for him." At the prearranged location that same day, Schaller told Campanella to get into his car, "a black Mazda, " where Campanella purchased three bags of cocaine for $120. Campanella's last drug transaction was on May 28, when Schaller arrived in the same black Mazda and sold Campanella $200 worth of cocaine.
As a result of these dual investigations, on June 19, 2008, defendant, Dorsi and Schaller were arrested and eventually indicted. Schaller subsequently expressed a willingness to cooperate in the police investigation. After being advised of his Miranda rights, he informed police that there was a motel room that defendant used to store and package the cocaine for sale, but that the room had been rented in Schaller's name. Schaller consented to a search of the motel room, which uncovered a "set-up" bag containing digital scales, latex gloves, a cutting agent, and Ziploc bags, as well as a piece of mail addressed to defendant.
Schaller subsequently provided a formal statement, detailing a cocaine distribution network, run by defendant, for which Schaller, Dorsi and Maldonado all worked. Maldonado would buy two hundred grams of cocaine in New York City once or twice a week and bring it to defendant at the motel. There, defendant would prepare and package the cocaine for distribution using the items contained in the "set-up bag." Once the cocaine was packaged, defendant would give it to his "runners" for street distribution. Defendant employed Schaller, Dorsi, and at one point, "some guy [named] Jamie, " as runners. Defendant provided Schaller with the drugs, as well as with a work phone and a car containing a hidden compartment to transport the drugs. The work phone had the same number that Rue and Campanella had been calling to arrange their purchases. Schaller agreed to testify at defendant's trial.
On appeal, defendant raises the following issues:
I. BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT ALL OF THE ELEMENTS NECESSARY TO ESTABLISH THAT [DEFENDANT] WAS THE LEADER OF A DRUG TRAFFICKING NETWORK, THE DEFENSE MOTION FOR A NEW TRIAL SHOULD ...