May 15, 2018
appeal from Superior Court of New Jersey, Law Division,
Passaic County, Indictment No. 16-10-0171.
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
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).
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
Judges Yannotti, Carroll and DeAlmeida.
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
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).
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.
purpose of these appeals, the record is essentially
undisputed. We glean the following facts from the indictment
and the grand jury testimony.
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
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.
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. There, the police observed Jerry Byrd exit
the home and engage in what appeared to be the sale of
illicit drugs to Potts.
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
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.
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
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 ...