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State v. Ferguson

Superior Court of New Jersey, Appellate Division

June 1, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
NOEL E. FERGUSON and ANTHONY M. POTTS, Defendants-Respondents. STATE OF NEW JERSEY, Plaintiff-Respondent,
SHAMEIK BYRD, Defendant-Appellant.

          Argued May 15, 2018

          On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 16-10-0171.

          Sarah C. Hunt, Deputy Attorney General, argued the cause for State of New Jersey, appellant in Docket No. A-2893-17 and respondent in Docket No. A-2894-17 (Gurbir S. Grewal, Attorney General, attorney; Sarah C. Hunt, of counsel and on the briefs).

          Kathryn A. Panaccione, Assistant Deputy Public Defender, argued the cause for appellant Shameik Byrd (Joseph E. Krakora, Public Defender, attorney; Kathryn A. Panaccione, of counsel and on the brief).

          Jane M. Personette argued the cause for respondent Noel E. Ferguson (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel; Jane M. Personette, on the brief).

          Michael J. Montanari argued the cause for respondent Anthony M. Potts (Del Sardo & Montanari, LLC, attorneys; Michael J. Montanari, of counsel and on the brief; Jayna B. Patel, on the brief).

          Before Judges Yannotti, Carroll and DeAlmeida.


          CARROLL, J.A.D.

         These appeals stem from the tragic death of a young New York man from a heroin overdose. In New Jersey, N.J.S.A. 2C:35-9(a) provides that "[a]ny person who manufactures, distributes or dispenses . . . [a] controlled dangerous substance (CDS) classified in Schedules I or II . . . is strictly liable for a death which results from the injection, inhalation[, ] or ingestion of that substance, and is guilty of a crime of the first degree." New York has no comparable statute.

         In these appeals, which we consolidate for purposes of this opinion, we address the issue of territorial jurisdiction in the context of the strict liability for drug-induced death statute. In A-2893-17, the trial court dismissed the strict liability charge against defendants Noel E. Ferguson and Anthony M. Potts, New York residents who allegedly purchased heroin from defendant Shameik Byrd in Paterson and later distributed some of the heroin to the victim in New York, where he died of an overdose. In A-2894-17, the trial court denied Byrd's motion to dismiss the same count of the indictment. The court found that, because Byrd allegedly distributed heroin in New Jersey that ultimately resulted in the user's death, Byrd's conduct fell within the purview of N.J.S.A. 2C:35-9(a).

         Pursuant to leave granted, the State appeals the orders dismissing count fourteen of the indictment against Ferguson and Potts based on the State's failure to establish territorial jurisdiction in New Jersey, while Byrd appeals the denial of his dismissal motion. For the reasons that follow, we affirm the trial court orders.


         For the purpose of these appeals, the record is essentially undisputed. We glean the following facts from the indictment and the grand jury testimony.

         On April 3, 2016, Kean Cabral, a resident of Warwick, New York, died in his home from a heroin overdose. Alongside his body, local police recovered several bags of heroin labeled "Trap Queen."

         Shortly thereafter, Warwick police received an anonymous tip relating to Cabral's death. The information provided by the female caller corroborated the evidence found at the crime scene. In particular, the caller reported that Ferguson sold heroin with the logo "Trap Queen" to Cabral on April 2, 2016, and that Ferguson had purchased the heroin in Paterson. The caller added that Ferguson and Potts both sold heroin, and that they travelled to Paterson every two days to purchase the drug.

         On April 4, 2016, Warwick police provided this information to a detective in the New Jersey Division of Criminal Justice. Two days later, police established surveillance and tracked Ferguson and Potts as they crossed from New York into New Jersey. The police followed the vehicle into an area of Paterson where Byrd resided with his mother and brother, Jerry Byrd.[1] There, the police observed Jerry Byrd exit the home and engage in what appeared to be the sale of illicit drugs to Potts.

         The police followed Ferguson and Potts out of the area before stopping their vehicle. Upon approaching their car, a detective observed in plain view "an empty glassine envelope with suspected heroin residue on the driver's side armrest." Ferguson, the driver, admitted there was heroin in the vehicle. She then retrieved a "small black plastic bag containing [fifty] glassine envelopes of suspected heroin, " several of which were labeled "Trap Queen."

         Ferguson and Potts were arrested, and both gave sworn statements to the police. Ferguson confirmed that she and Potts routinely purchased heroin in Paterson, and that on April 1, 2016, they had purchased heroin from an individual known as "Home Boy, " who was subsequently identified as Byrd. Ferguson provided police with the cell phone number she called to arrange the heroin purchase. She also admitted that she and Potts later sold glassine bags of heroin to Cabral on April 1, and thirteen additional glassine envelopes on April 2.

         Potts gave a similar statement, admitting to purchasing heroin from "Home Boy" in Paterson on April 1, 2016. He also confirmed that on that same evening, Cabral asked to buy heroin from him and Ferguson. Potts stated he then sold "ten glassine envelopes of heroin" to Cabral, and that he and Ferguson supplied Cabral with more heroin the next day.

         On May 5, 2016, police searched Byrd's home in Paterson and recovered six "bricks" consisting of 300 glassine envelopes of heroin. They then called the cell phone number provided by Ferguson and observed a phone vibrating in Byrd's pocket. After Byrd confirmed it was his ...

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