State v. Afanador

• Decision Date: 27 October 1993
• Citation: 134 N.J. 162,631 A.2d 946
• Parties: , 30 A.L.R.5th 744 STATE of New Jersey, Plaintiff-Respondent, v. Moises AFANADOR, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 162

134 N.J. 162

631 A.2d 946, 30 A.L.R.5th 744

STATE of New Jersey, Plaintiff-Respondent, v. Moises AFANADOR, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 16, 1993.

Decided Oct. 27, 1993.

Lawrence S. Lustberg, Newark, for defendant-appellant (Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr. Lustberg and J. Timothy McDonald, on the brief).

Catherine A. Foddai, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen. of NJ, attorney).

Moises Afanador, submitted a brief pro se.

The opinion of the Court was delivered by

CLIFFORD, J.

Defendant, Moises Afanador, challenges the Appellate Division's affirmance of his conviction for violation of N.J.S.A. 2C:35-3, the so-called "drug kingpin" statute. As required by the sentencing provision of that statute, the trial court sentenced defendant to life imprisonment with a twenty-five-year period of parole ineligibility. This Court granted certification, 130 N.J. 601, 617 A.2d 1222 (1992), limited to consideration of defendant's contentions that N.J.S.A. 2C:35-3 is (1) unconstitutionally vague on its face, or (2) vague as applied to defendant's conduct. In a well-reasoned opinion the Appellate Division rejected those challenges. We affirm.

I

We note preliminarily a significant feature of defendant's arguments. In resolving whether N.J.S.A. 2C:35-3 is facially vague, we need not refer to the facts--we need only read the statute. However, for purposes of defendant's contention that the statute is vague as applied to his conduct, we accept as true the State's evidence concerning defendant's actions, viewing that evidence in the light most beneficial to the State's position. Although the defense witnesses' testimony, especially that of defendant himself, contrasted sharply with that of the State's witnesses, in deciding an as-applied challenge a court presumes that a jury accepted the State's evidence. The only question relevant in respect of a vague-as-applied challenge is whether the statute clearly extends to the acts that the State alleges defendant committed. We therefore summarize the State's evidence at trial.

We focus on defendant's participation in four drug transactions with Detective Ruiz, an undercover officer in the Pleasantville Police Department. In the first transaction, on September 18, 1987, Ruiz, accompanied by an informant who knew defendant arrived at Afanador's home. Claiming to be a drug dealer, Ruiz asked defendant to sell him a half-ounce of cocaine. Afanador dispatched a young woman present at his home to find a scale, whereupon Ruiz engaged defendant in a conversation in the course of which he said that he and some other persons wished to go into the drug business. In answer, Afanador warned Ruiz that "the business was risky" and that defendant had approximately $2,300 "on the street" that people owed him as a result of defendant's "business." While the conversation was taking place, Ruiz noticed significant "traffic in and out of the house." (Another officer had conducted a surveillance of defendant's home for three-and-one-half hours on the previous day; at trial that officer testified that during the surveillance at least eleven cars had pulled into defendant's driveway only to depart in under fifteen minutes.) At one point during his discussion with Ruiz, defendant directed his nephew, who was introduced to Ruiz as "Popo," to divert a black car that was attempting to pull into the driveway. Ruiz testified that Popo was often present on other occasions when the officer had dealt with defendant, and that defendant had at times given Popo instructions.

When a scale could not be found, defendant removed from his pants pocket a plastic bag containing one ounce of cocaine. After telling Ruiz that he could determine a half-ounce by sight, Afanador separated the cocaine into two approximately-equal piles and gave the cocaine to the officer in exchange for $700 in cash.

The second transaction took place on September 23, 1987. At 6:00 p.m. Ruiz again arrived at defendant's home and asked to purchase one ounce of cocaine. Defendant told Ruiz that he would sell him an ounce for $1,200 and that the officer should return between 8:00 and 8:30 p.m. When Ruiz returned at 8:15, Afanador's wife directed the officer to the back door of the house. Defendant appeared and led Ruiz into a basement where he removed from an empty light-bulb box a bag containing an ounce of cocaine, which he gave to Ruiz in return for $1,200 in cash. Defendant then freebased cocaine in the officer's presence. During a conversation with Ruiz at that time, Afanador claimed that he had been in the drug business for twenty years. Ruiz inquired about the price for four-and-one-half ounces of cocaine. Defendant quoted a price of $3,700 and told Ruiz that he would need six hours advance notice to secure that amount of cocaine.

The third transaction began with Ruiz's return to defendant's home on the morning of October 2nd. Popo and a person named "Cholo"--from whom the officer had made undercover buys in the past--were also present. Defendant and Ruiz thereafter stepped outside the house, where Ruiz told defendant that he wanted to buy two ounces of cocaine. When the officer asked Afanador "if there was any problem with that," defendant said "No."

Defendant then drove with Ruiz to the Florence Park Apartments, where they met Johnny Montalvo, who is also known as "Johnny Afanador." Defendant asked Montalvo if Montalvo "was ready," and after receiving an affirmative response told Montalvo to meet him at "the black girl's house," but quickly changed his mind and told Montalvo to meet him at defendant's house. Defendant and Ruiz next drove to the Walnut Manor Apartments, where a black male approached defendant's car and asked defendant "at what time he was going to come around with the stuff." Later another male, whom Ruiz recognized as Pedro Ortiz (from whom the officer had made undercover buys in the past), approached the car, and defendant told Ortiz that "it was in." Ortiz asked if it was "okay if he would go over to the defendant's house later."

Ruiz and defendant returned to defendant's home, and Montalvo arrived a short time later. In Afanador's living room Montalvo handed two ounces of cocaine to defendant, who promptly handed it to Ruiz. Defendant directed Ruiz to give the $1,200 to Montalvo and told Montalvo to count it. Montalvo kept that money, and defendant gave Montalvo an additional $100 in twenty-dollar bills.

Ruiz then made overtures leading to the fourth transaction. He told Afanador that he and some other persons were interested in purchasing $25,000 worth of cocaine. Defendant asked Ruiz when he would need the drugs and inquired of Montalvo if he "would be able to go up there" by that date. At that time defendant again spoke of people owing him money because of his business, this time claiming that "he had $27,000 in the street that people owed him."

When Ruiz met with defendant again on October 21st, defendant told him that "the package * * * would be coming down from New York" on the 22nd and that defendant's "uncle," Osualdo Acobes, was acting as the courier. At some point Ruiz had reduced the amount of his request from $25,000 to $10,000 worth of cocaine. Defendant instructed Ruiz to have $10,000 in cash the following day.

Acobes arrived at Afanador's home at 5:00 p.m. on October 22nd. After defendant located a scale and placed it in the trunk of Acobes' car, he, Acobes, and Ruiz proceeded to the Florence Park Apartments. They entered one of the apartments and met a person introduced to Ruiz as "Nando." Acobes placed a scale and a brown, square package on the dining-room table. Defendant stood observing that activity. Acobes requested the money from the officer, but Ruiz, who had instructions from his superiors to consummate the transaction at defendant's home, argued that he had left the $10,000 at Afanador's home and insisted that the parties complete the transaction there. Nando accompanied Ruiz to defendant's home. Once there, Nando and Ruiz agreed that Nando would count the money, that the two of them would return to the Florence Park Apartments at which time Nando would verify that defendant had the correct amount of money, and that the package would thereafter be delivered to Ruiz at defendant's home.

When defendant, Nando, Acobes, and Ruiz later returned to defendant's home as agreed, Ruiz gave his fellow officers a prearranged signal and they moved in to arrest. A search of the trunk of Acobes' car revealed a brown paper bag containing 535 grams of cocaine. Laboratory tests fixed the cocaine's purity at eighty-four percent.

II

A jury convicted defendant of violating the "drug kingpin" statute, N.J.S.A. 2C:35-3, which provides in pertinent part:

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 manufacture, distribute, dispense, bring into or transport in this State methamphetamine, lysergic acid diethylamide, phencyclidine or any controlled dangerous substance classified in Schedule I or II, or any controlled substance analog thereof. Leader of narcotics trafficking network is a crime of the first degree and upon conviction thereof * * * a person shall be sentenced to an ordinary term of life imprisonment during which the person must serve 25 years before being eligible for parole. * * *.

Notwithstanding the provisions of N.J.S. 2C:1-8, a conviction of leader of narcotics trafficking network shall not merge with the conviction for any offense [that] is the object of the conspiracy. * * *.

It shall not be necessary in any prosecution under this section for the State to prove that any intended profit was actually realized. The trier of fact may infer that a particular scheme or course of conduct was undertaken for profit from all...