State v. AlexanderState v. Alexander
Defendant Ryan Lee Alexander was convicted of possession of cocaine (
Defendant‘s arrest and indictment resulted from information that Anthony Harewood and Sandra Palmer provided to the police after their arrest for having sold nine baggies of cocaine to an undercover investigator for $100. When they were arrested, Harewood had $314.02 in cash in his pocket and Palmer had a large glassine bag containing 7.34 grams of cocaine in forty-eight smaller ziploc baggies. They told the poliсe that defendant had recruited Harewood to sell cocaine. Defendant would supply Harewood daily with thirty to sixty bags of cocaine for resale. Palmer would hold the drugs and Harewood, who lived with her and was the father of three of her children, would collect the money from buyers whom defendant dirеcted to him. According to Harewood, he would give defendant between $300 and $1500 a day; Palmer said that Harewood would pay defendant approximately $5000 a week and keep approximately $2000 a week as profit.
The statements which Harewood and Palmer gave to the police identified the apartment where defendant stored and sold cocaine. Pursuant to a warrant, the police entered and searched the apartment. Defendant was inside. While he was attempting to
Harewood‘s and Palmer‘s statements to the police were read to the jury. Harewood‘s statement said:
I met Ryan Alexander and Chris Kittrell inside 55 Railroad Avenue, Apartment A-4. Both of these guys had approximatеly 160 bags of cracks. They got me forty-eight bags of crack. I then gave these forty-eight bags to Sandra Palmer who hides these cracks on her body. I make $30 for every $100 of crack that I sell for Ryan and Chris. These guys sell the crack sometimes right out the window, while they stay inside. They are slick! They have over one hundred bags of cracks right now in their possession. I just seen the cracks minutes before you arrested me. I work for Ryan and Chris.
Palmer‘s statement said:
I have forty-eight bags of cracks which Anthony Harewood, my boyfriend, gave to me. He just received them from Ryan Alexander and Chris Kittrell in Didi‘s [i.e., Alexander‘s girlfriend‘s] apartment. Ryan and Chris have been selling crack out of there since they were released from jail. They started as soon as they got out. They sell to everyone. I seen them sell to people, even juveniles over fifty times. They brag [they] own the block. They use Didi‘s apartment to sell their crack right out the window.
On appeal, defendant contends that reading Palmer‘s statement to the jury was prejudicial error because it revealed that he had been in jail and had sold crack to juveniles; that the prosecutor impermissibly expressed his own personal opinion, without support in the evidence, when he told the jury during summation that the small ziploc bags taken from Pаlmer were “unique” and of a type that he “had never seen before“; that
A person is a leader of a narcotics trafficking network if he conspires with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully... distribute [certain controlled dangerous substances].
We reject the argument that the terms “organizer, supervisor, financier or manager” are unconstitutionally vague. The statute has been upheld against challenge on that ground in our unpublished opinions in State v. Burgess, A-5319-89T4 (App.Div. Feb. 16, 1993); State v. Taylor and Harris, A-4265-89T2 and A-4368-89T2 (App.Div. Feb. 19, 1992), certif. denied, 130 N.J. 10, 611 A.2d 649 (1992); and State v. Afanador, A-4086-88T3 (App.Div. Dec. 19, 1991), certif. granted, 130 N.J. 601, 617 A.2d 1222 (1992). The latter case is currently pending before the Supreme Court. We are content to follow our prior decisions on this issue.
Those decisions do not dispose of defendant‘s challenge to his conviction under
If
Under this literal construction of
The Declaration of Policy and Legislative Findings enacted as part of the Act state in part:
In order to be effective, the battle against drug abuse and drug-related crime must be waged aggressively at every level along the drug distribution chain, but in particular, our criminal laws must target for expedited prosecution and enhanced punishment those repeat drug offenders and upper echelon members of organized narcotics trafficking networks who pose the greatest danger to society. In order to ensure the most efficient and effective dedication of limited investigative, prosecutorial, judicial and correctional resourсes, it is the policy of this State to distinguish between drug offenders based on the seriousness of the offense, considering principally the nature, quantity and purity of the controlled substance involved, and the role of the actor in the overall drug distribution network. It is the intention of the Legislature to provide for the strict рunishment, deterrence and incapacitation of the most culpable and dangerous drug offenders....
The 1987 Legislative Commentary to
The express purpose of this section is to target for enhanced punishment the upper echelon members, the so-called kingpins, of an organized drug distribution scheme.
Referring to these declarations of legislative intent, Cannel, New Jersey Criminal Code Annotated, Comment on
[N.J.S.A. 2C:35-3] is new, but it bears a functional resemblance to such sections as 2C:20-7.1b (dealing in stolen property) and 2C:5-2g (leader of organized crime). Those sections, like this one, include terms such as organizer, supervisor, manager etc. and limit the 2C:1-8 doctrines of merger. The clear organized crime direction of those other sections, as well as the purpose expressed in 2C:35-1.1c to punish severely “upper echelon members of organized narcotics trafficking networks” indicate a legislative intent that the section be read narrowly and not applied to every drug sale operation.... In the absence of this context, the section could be read to provide a mandatory life term with a 25 year minimum for almost every street-level dealer. [Emphasis added.]
The operative language of
Webster‘s Third New International Dictionary, Unabridged 718 (Philip Gove ed., 1986), defines “echelon” as “one of a series of levels or grades (as of leadership or responsibility) in an organization or field of activity.” It defines “network” as “an interconnected or interrelated chain, group or system (as of secret agents).” Id. at 1520. Webster‘s Dictionary of English Usage 380-381 (E. Ward Gilman ed., 1989), says of echelon:
Echelon is originally a French word meaning literally “a rung on a ladder.” It was borrowed into English in the 18th century in a figurative sense denoting a step-like military formation, and it remained primarily a military word for about 150 years thereafter, developing several additional senses during that time. One military sense it had develоped by the end of World War II was “a level in a chain of command” [Example omitted.] In this sense, echelon began to appear commonly in general publications: [Example omitted.] And it quickly came to be applied to civilian as well as military organizations: [Example omitted.] This is now the common use of echelon.
That sоurce sheds no additional light on the meaning of “network,” but The Oxford Companion to the English Language, 686-687 (Thomas McArthur ed., 1992), defines this term as follows: “A construct in which threads, wires, or other materials are arranged as or like a net; anything analogous (a railway network, a police network).”
A jury called upon to determine whether a defendant is a “leader of a narcotics trafficking network” within the meaning of
An instruction of this sort was not given to the jury in the present case. Thе jury therefore did not determine whether defendant‘s status and activities warranted the punishment which the Legislature has reserved for a “leader of a narcotics trafficking network.” Consequently, we reverse defendant‘s conviction for violation of
As to defendant‘s remaining grounds of appeal, the Statе concedes that his conviction for possession of cocaine as charged in the seventh count of his indictment should be merged into his conviction for possession of cocaine with intent to distribute it as charged in the sixth count. The constitutionality of the mandatory DEDR penalties imposed on defendant was upheld in State v. Lagares, 127 N.J. 20, 601 A.2d 698 (1992). Reading Harewood‘s and Palmer‘s statements into evidence without redaction and the prosecutor‘s improper argument to the jury about the uniqueness of the packaging of the drugs found on Palmer were harmless errors insofar as his convictions for possession and possession with intent tо sell are concerned.
Defendant‘s conviction for possession of cocaine,
Notes
The count of the indictment whiсh charged defendant with a violation of N.J.S.A. 2C:35-3 alleges that:
... Ryan Lee Alexander ... between August 30, 1989 and October 21, 1989 ... did conspire with Anthony D. Harewood and Sandra Palmer and C.K., an unindicted co-conspirator, known to the grand jury as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this State, cocaine or a Schedule II controlled dangerous substance thereof, contrary to the provisions of N.J.S. 2C:35-3....
The grand jury presumably intended to allege that defendant conspired “as an organizer, supervisor, financier or manager ....,” not that C.K., one of the persons with whom he conspired had that status or performed one of those functions. Literally read, the indictment as returned is susceptible of the latter interpretation and is therefore ambiguous. However, the trial record demonstrates that both parties understood the indictment without difficulty as it was undoubtedly intended.