State v. Alexander

• Decision Date: 27 April 1993
• Citation: 624 A.2d 48,264 N.J.Super. 102
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ryan Lee ALEXANDER, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 102

264 N.J.Super. 102

624 A.2d 48

STATE of New Jersey, Plaintiff-Respondent, v. Ryan Lee ALEXANDER, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 10, 1993.

Decided April 27, 1993.

Mordecai Garelick, Asst. Deputy Public Defender, argued the cause for defendant-appellant (Zulima v. Farber, Public Defender, attorney; Mr. Garelick, of counsel and on the brief).

Appellant filed a supplemental pro se brief.

Paul B. Brickfield, First Asst. Prosecutor, argued the cause for plaintiff-respondent (John J. Fahy, Bergen County Prosecutor, attorney; Mr. Brickfield, of counsel and on the brief).

Before Judges HAVEY, STERN and BROCHIN.

The opinion of the court was delivered by

BROCHIN, J.A.D.

Defendant Ryan Lee Alexander was convicted of possession of cocaine ( N.J.S.A. 2C:35-10a(1)); possession of cocaine with intent to distribute it ( N.J.S.A. 2C:35-5a(1) and 5b(3)); and being the leader of a narcotics trafficking network ( N.J.S.A. 2C:35-3, the "kingpin" statute ¹ ). For the latter offense, he was sentenced to life imprisonment with twenty-five years' parole ineligibility; for the other two convictions, he was sentenced to concurrent terms of five years' imprisonment.

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 police 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 directed 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 turn on a light, he dropped a bag in which there were 42 smaller, green, ziploc baggies containing 11.08 grams of cocaine that looked like the baggies found in Palmer's possession when she was arrested.

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 approximately 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 Palmer were "unique" and of a type that he "had never seen before"; that N.J.S.A. 2C:35-3, the "kingpin" statute, is unconstitutionally vague; and that the court's jury instructions failed to distinguish between that offense and such lesser offenses as distributing or conspiring to distribute a controlled dangerous substance. Defendant also alleges that his convictions for possession and for possession with intent to distribute should have been merged, and that the mandatory DEDR penalty to which he was sentenced constituted cruel and unusual punishment.

We turn first to defendant's arguments attacking his conviction for violating N.J.S.A. 2C:35-3. The statute says:

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 N.J.S.A. 2C:35-3 on the ground of the alleged inadequacy of the jury charge. That ground of appeal was not asserted before the trial court, but we will consider it because of the severity of the sentence to which defendant is subject if his conviction under that section is sustained. See State v. Ricci, 250 N.J.Super. 39, 43, 593 A.2d 362 (App.Div.1991), certif. denied, 127 N.J. 547, 606 A.2d 362 (1991). Moreover, "[c]orrect charges are essential to a fair trial" and inadequate instructions on material points are presumed to be reversible error. State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990).

N.J.S.A. 2C:35-3 was enacted as part of the Comprehensive Drug Reform Act of 1986. See N.J.S.A. 2C:35-1. That Act makes a section -3 violation its most serious offense, imposing a mandatory penalty of life imprisonment with 25 years' parole ineligibility on a defendant convicted as "a leader of a narcotics trafficking network." Even N.J.S.A. 2C:35-9, which imposes strict liability for drug induced deaths, is defined as an ordinary first degree offense punishable by 10 to 20 years' imprisonment. Similarly, "any person who knowingly maintains or operates any ... facility used for the manufacture of" the enumerated illegal drugs or who "knowingly aids, promotes, finances or otherwise participates in the ... operations of such ... facility" contrary to N.J.S.A. 2C:35-4, is guilty of a first degree crime and subject to from ten to twenty years' imprisonment with mandatory parole ineligibility for from one-third to one-half of that time; a conspirator to violate section -4 would be guilty of a second-degree crime punishable by imprisonment for from five to ten years. N.J.S.A. 2C:5-4(a). Someone convicted for violating N.J.S.A. 2C:35-5 by manufacturing or distributing the drugs enumerated in N.J.S.A. 2C:35-3 is subject to punishment for a first, second or third degree crime, depending on the kind and amount of the drugs involved. A defendant convicted of employing a juvenile in his manufacturing or distribution scheme, contrary to N.J.S.A. 2C:35-6, is subject to punishment for a second degree crime.

If N.J.S.A. 2C:35-3 is read literally, the only evidence required to establish its violation is proof that the defendant "conspire[d] with others as an organizer, supervisor, financier or manager, to engage for profit in a ... course of conduct to unlawfully manufacture ... [or] distribute" the controlled dangerous substances enumerated in the statute. Anyone who initiated, supervised, financed or managed a two-person conspiracy to produce or sell any quantity of the specified illegal drugs would be subject to a mandatory penalty of life-imprisonment as "a leader of a narcotics trafficking network." That was substantially what the trial court instructed the jury in the present case.

Under this literal construction of N.J.S.A. 2C:35-3, anyone who has violated N.J.S.A. 2C:35-6 (employing a juvenile), anyone whose violation of N.J.S.A. 2C:35-4 (maintaining or operating a controlled dangerous substance production facility) involved more than a one-person facility, and anyone who participated in a conspiracy to violate N.J.S.A. 2C:35-5 (manufacturing, distributing or dispensing) and was not entirely subordinate to his co-conspirator and without any discretion of his own would also be guilty of violating N.J.S.A. 2C:35-3 (leader of narcotics trafficking network). In our view, an interpretation of section -3 which makes "a leader of a narcotics trafficking network" largely indistinguishable from someone who violates or conspires to violate one of these other sections of the drug laws would be unfaithful to the legislative purpose evidenced by the structure of the Comprehensive Drug Reform Act of 1986.

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...