State v. Afanador

• Decision Date: 23 July 1997
• Citation: 697 A.2d 529,151 N.J. 41
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Moises AFANADOR, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 41

151 N.J. 41

697 A.2d 529

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

Supreme Court of New Jersey.

Argued April 28, 1997.

Decided July 23, 1997.

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

Catherine A. Foddai, Deputy Attorney General, for plaintiff-respondent (Peter Verniero, Attorney General, attorney).

The opinion of the Court was delivered by

O'HERN, J.

State v. Alexander, 136 N.J. 563, 643 A.2d 996 (1994), held that in order to convict one as a drug kingpin under N.J.S.A. 2C:35-3, a jury should be instructed that it must find that a defendant held an "upper echelon" or "high level" role as leader of a drug trafficking network. The principal issues in this appeal are (1) whether the principles of Alexander should apply retroactively to a case tried before that decision, (2) whether defendant's petition seeking post-conviction relief from his conviction as a kingpin on the basis of Alexander is procedurally barred, and (3) whether such relief is warranted.

I

The facts are set forth in our prior opinion involving defendant. State v. Afanador, 134 N.J. 162, 631 A.2d 946 (1993) (Afanador I ). Defendant engaged in four drug transactions with an undercover detective. In the first three transactions, a total of $3,100 was exchanged for cocaine. The fourth transaction involving a $10,000 buy was not completed because of defendant's arrest.

Other people participated in the transactions. Defendant's nephew "Popo" was involved in the first transaction during which defendant spoke of having $2,300 "on the street" owed to him as a result of his "business." Popo directed cars from defendant's driveway and performed other tasks. In addition, a woman was dispatched to find a scale to weigh the drugs. In the second transaction, defendant's wife directed the detective to the back of the house and to the basement, where defendant was located. Defendant described himself to the undercover detective as being in the drug business. After removing the cocaine from an empty lightbulb box and completing the transaction, defendant "freebased" some cocaine. In the third transaction, Popo, Johnny Montalvo, Pedro Ortiz, and one "Cholo" were involved. Defendant was overheard telling another drug dealer "it was in," presumably referring to a drug shipment. In the fourth transaction, defendant's uncle, Osualdo Acobes, served as a courier and assisted with weighing the drugs while a person named "Nando" counted the money and arranged delivery with the detective. This time defendant said he "had $27,000 on the street." There were other background facts and circumstances, including discussions of larger sums of money and drugs. Defendant contended, however, that such discussions were initiated by the undercover agent and that he, Afanador, was merely the go-between for the undercover agent and the sellers. These facts sustained defendant's 1988 conviction as a drug kingpin. In March 1989, the trial court sentenced defendant to two consecutive terms of life imprisonment, each with a twenty-five year period of parole ineligibility. Defendant asserted that use of one of the factors, defendant's involvement in organized crime, constituted inappropriate double counting.

On appeal, defendant, through prior counsel and his supplemental pro se submission, challenged the constitutionality of the kingpin statute, the excessiveness of the sentence, and the competency of his trial counsel. In 1991, the Appellate Division rejected defendant's challenges to the constitutionality of the kingpin statute. It also dismissed the ineffective assistance of counsel claim. The court, however, remanded the sentence for reconsideration of the two consecutive life terms imposed. The Appellate Division found the sentence troubling because of "defendant's obvious mid-to-low level position on the pyramid of potential kingpin targets."

On remand in May 1992, the trial court reduced defendant's sentence for being a drug kingpin to one term of life imprisonment, with thirty years of parole ineligibility. Other sentences were made concurrent. In September 1992, we granted defendant's pro se petition for certification. The petition asserted, in addition to other challenges, that the jury charge was not consistent with the legislative intent of the drug kingpin statute because the charge had not required a finding that defendant was an upper-echelon member of a drug network. Pursuant to this Court's request that defendant be assigned pro bono counsel, present counsel began representing Afanador in October 1992. In November 1992, the Court amended the Order granting certification and limited our review to the statute's constitutionality, facially or as applied. 130 N.J. 601, 617 A.2d 1222 (1992).

In October 1993, this Court held that the drug kingpin statute was not void for vagueness. Afanador I, supra, 134 N.J. 162, 631 A.2d 946. The dissenting members of the Court agreed that the statute was facially constitutional. Id. at 180, 631 A.2d 946. They reasoned:

The words of the statute, such as "organizer," "supervisor," "financier," or "manager," are indeed familiar and easily understandable. Although such terms are not vague in themselves, the trial court's failure to relate the terms of the statute to the statutory purposes leaves the jury without the guidance necessary to assess whether the defendant is in fact an "upper-echelon" member of a drug-trafficking network, as was intended by the Legislature for enhanced punishment. Absent instructions relating the general terms of the Act to its purposes, a defendant does not receive a fair trial.

[Ibid.]

Because the question of a proper instruction was pending consideration by the Court in State v. Alexander, 264 N.J.Super. 102, 624 A.2d 48 (App.Div.1993), the majority in Afanador I explicitly deferred review of the jury charge issue until Alexander was before the Court. Afanador I, supra, 134 N.J. at 178-79, 631 A.2d 946. In November 1993, we granted certification in Alexander to resolve the jury charge issue. 134 N.J. 564, 636 A.2d 522 (1993). Afanador's counsel submitted an amicus curiae brief and argued in that capacity in favor of Alexander's challenge to the jury instruction.

In July 1994, we held that trial courts must instruct juries in a manner consistent with the intent of the Legislature. Alexander, supra, 136 N.J. at 565, 643 A.2d 996. We held that courts should instruct a jury that to meet the definition of a kingpin, a defendant's position and status must be at a superior level in relation to others in the network and that the defendant has exercised in that capacity supervisory power or control over others engaged in organized drug-trafficking. Id. at 574, 643 A.2d 996.

In December 1994, six months after our decision in Alexander, defendant sought post-conviction relief (PCR) in part on the basis of improper jury instructions. The original trial judge held a hearing on the petition in August 1995, but died before he could render a decision. The matter was transferred to another judge. Although the State raised the procedural bars of Rules 3:22-4, -5, and -12, the trial court concluded that the interests of justice warranted relaxation of the rules. Because trial counsel had failed to object to or to propose a revision to the instruction, the court concluded that the error in the jury charge could not be raised on post-conviction relief. The court further held that Alexander announced a new rule of law that should not be applied retroactively. The trial court dismissed other claims of ineffective assistance of counsel and use of perjured testimony because defendant failed to submit a prima facie showing to warrant an evidentiary hearing.

The Appellate Division affirmed the dismissal substantially for the same reasons as the trial court. In addition, the Appellate Division held that the PCR petition was barred under Rules 3:22-4 and -5 because all issues either could have been or were raised on direct appeal. The court also held that the PCR petition was time barred under Rule 3:22-12 because it was not filed within five years of defendant's conviction. We granted defendant's petition for certification. 147 N.J. 578, 688 A.2d 1053 (1997).

II

Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459, 609 A.2d 1280 (1992) (citing Pressler, Current N.J. Court Rules, Rules 3:22-1 to -22 (1992)). It is a safeguard to ensure that a defendant was not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482, 688 A.2d 584 (1997). Ordinarily, PCR enables a defendant to challenge the legality of a sentence or final judgment of conviction by presenting contentions that could not have been raised on direct appeal. Id. at 482-83, 688 A.2d 584.

Pursuant to Rule 3:22-2, a defendant may seek PCR on four grounds a) substantial denial in the conviction proceedings of a defendant's state or federal constitutional rights; (b) a sentencing court's lack of jurisdiction; (c) an unlawful sentence; and (d) any habeas corpus, common-law, or statutory grounds for collateral attack.

[Preciose, supra, 129 N.J. at 459, 609 A.2d 1280 (quotations omitted).]

PCR, however, is neither a substitute for direct appeal, Rule 3:22-3, nor an opportunity to relitigate matters already decided on the merits, Rule 3:22-5. Preciose, supra, 129 N.J. at 459, 609 A.2d 1280; see also State v. Mitchell, 126 N.J. 565, 583, 601 A.2d 198 (1992). Further, PCR cannot be used to circumvent issues that could have, but were not raised on appeal, unless the circumstances fall within one of three exceptions. R. 3:22-4. In addition, a PCR petition challenging a judgment or conviction is time barred if not filed within five years of the act in question. R. 3:22-12.

We have emphasized the importance of the procedural bars. Mi...