State v. Berry

CourtNew Jersey Superior Court – Appellate Division
Citation471 N.J.Super. 76,272 A.3d 1
Docket NumberDOCKET NO. A-1068-18, A-1594-18, A-1884-18
Parties STATE of New Jersey, Plaintiff-Respondent, v. Barry BERRY, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. Kenneth Daniels, a/k/a Kendal Burnett, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. Levell Burnett, a/k/a Lavelle Burnett, Defendant-Appellant.
Decision Date07 March 2022

Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant Levell Burnett (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant Barry Berry (John A. Albright, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Kenneth Daniels (Frank M. Gennaro, Designated Counsel, on the brief).

Caroline C. Galda, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Caroline C. Galda, of counsel and on the briefs).

Appellant Kenneth Daniels filed a pro se supplemental brief.

Before Judges Whipple, Geiger and Susswein.

The opinion of the court was delivered by


Co-defendants Kenneth Daniels, Levell Burnett, and Barry Berry appeal from their jury trial convictions for drug and firearms offenses. All three were charged and convicted with being leaders of a narcotics trafficking network, N.J.S.A. 2C:35-3, which is commonly referred to as the "kingpin" offense. Because they were tried together and raise several common issues regarding asserted trial errors, we calendared their appeals back-to-back. We now consolidate their appeals for the purpose of issuing a single opinion.

At trial, a key issue was whether defendants were "high-level" members of a drug trafficking conspiracy. The State did not present testimony from any of the persons the prosecutor claimed to be unindicted co-conspirators, that is, individuals who were supervised or managed by defendants. Accordingly, there was no testimony from a cooperating witness concerning the inner workings of the criminal enterprise. Instead, the State relied on wiretapped telephone calls between defendants to establish their roles within the drug trafficking conspiracy.

After carefully reviewing the record in light of the applicable legal principles, we conclude that the State failed to produce sufficient evidence that Berry occupied a high-level position within the network. Accordingly, the trial court erred in denying Berry's motion for a judgment of acquittal on the leader charge. As to Daniels and Burnett, we conclude that—given the unusual circumstances of this kingpin prosecution—the jury instructions provided by the trial court did not adequately define the term "high level." We therefore reverse their leader convictions and remand for a new trial on that charge. With respect to all three defendants, we affirm their convictions for offenses other than the kingpin offense.


We briefly summarize the facts adduced at trial that pertain to the issues raised on appeal. The investigation by the Essex County Prosecutor's Office (ECPO) Narcotics Task Force leading to this prosecution began on March 19, 2015, when Daniels was arrested for stealing a car. He was incarcerated in the Essex County Jail during the six weeks following his arrest. During that period, the ECPO obtained a wiretap order for a series of recorded telephone calls involving Berry and Burnett. The jailhouse calls contained discussions relating to firearms and narcotics distribution. The ECPO also obtained communication data warrants for information from the Facebook accounts of the three co-defendants. That information included a post of a photograph of Daniels and Burnett together. A posted "selfie" of Daniels appeared to have been taken inside a residence on South 8th Street in Newark.

On April 28, 2015, ECPO Narcotics Task Force Detective Mark Dempsey was conducting a surveillance of the South 8th Street residence because he had been informed that a person of interest in the ongoing investigation was expected to be at that location. Dempsey saw Burnett leave the residence and apprehended him. Detectives then executed a search warrant at that address, seizing nine glassine envelopes of heroin, a handgun that was found under a mattress, and drug paraphernalia. The officers also found documents that bore Daniels' name. Police also seized handwritten correspondence from Daniels to Burnett.

On October 21, 2015, Orange Police Department Detective Craig Barnett observed a white SUV idling in an area known to police as a "hot spot" for drug sales and gun violence. The detective recognized Berry, who was sitting in the driver's seat of the SUV.

The detective and his partner parked their car in a nearby vacant lot and watched Berry using binoculars.

Berry and the passenger were sitting in the SUV talking with the windows down and the passenger-side door open. After a while, two individuals approached the vehicle. The detectives observed one of the individuals give cash to the passenger in exchange for an item the passenger removed from the center console. The individuals then walked away. Shortly thereafter, the detectives observed a second apparent transaction when a woman approached the SUV and handed the passenger cash in exchange for an object that was removed from the console. Detective Barnett noticed that Berry appeared to be operating as a "lookout."

The detectives next observed a woman come out of a nearby liquor store and approach the SUV. The passenger moved into the backseat and Berry moved into the passenger seat. The woman who had exited the liquor store got into the driver's seat and began to drive off. The detectives initiated a motor vehicle stop. An ensuing search found a bag in the console that contained eighty-one glassine envelopes of heroin. Berry was charged with possession of heroin with intent to distribute and other related offenses. A subsequent search of his person at the police station revealed $295 in small denominations.

On December 23, 2015, police executed an arrest warrant for Berry at a residential building on Sanford Avenue in Newark, New Jersey. Berry was arrested in the basement apartment. Narcotics fell out of his pants as they were arresting him. Police then obtained and executed a search warrant for the apartment. The search revealed a handgun with fourteen rounds of ammunition, a twelve-gauge shotgun with seven shells, and 550 glassine envelopes of heroin. Police officers also found $804 in cash and three forms of identification that bore Berry's name, listing his address at the Sanford Avenue residence.

The State at trial played twenty-four intercepted jailhouse telephone conversations. Seventeen of the calls were placed by Daniels to Berry or Burnett. Two of those calls were placed by Daniels to other people. Two of the intercepted calls were placed by Burnett to Daniels. Five calls were placed by Berry.

The State used unique prisoner identification numbers assigned to each defendant that each caller must use when they place a call. To identify the person who was contacted from the jail, the State produced Facebook records that had phone numbers associated with defendants' accounts.

The State argued that the calls show drug distribution activity and introduced expert testimony as to the meaning of several slang words and phrases used in the illicit drug trade. The State's expert, Detective Leon Holloway, opined that references in the calls to "dubs," "nicks," "dimes," and "jugs" referred to quantities of narcotics. Holloway testified that numbers mentioned in the calls related to the price of heroin. He also testified that discussions concerning "grinding," "hustling," and "working" referred to selling narcotics. Daniels stated in one of the calls that he had "sticks under [his] bed." Holloway opined that was slang for a weapon.

The calls also referred to product that needed to be "cheffed up" before people could "reflip" it and "sell [ ] shot" and for how much. In an effort to raise money faster, Daniels instructed his associates to sell the narcotics in double portions by "mak[ing] [it] all dubs and get rid of them shits ...." Daniels referred to a person known as "Mod" who was late in making payments that he owed. They discussed threatening him into compliance and using physical force if necessary.

Daniels testified at trial in his own defense and claimed the calls he made while he was in jail show that he was attempting to raise money for bail by collecting debts with help from Burnett. The State argued that those debts were associated with drug distribution. The State also argued that Daniels sought to raise additional funds by continued drug distribution.

In addition to the jailhouse calls, the State presented evidence found at the South 8th Street address in Newark. The investigators found a gun in a bedroom of the house, which was the same room where Daniels' identification was found. Nine envelopes of heroin were found in another bedroom.

On June 9, 2017, an Essex County grand jury indicted Berry, Burnett, and Daniels on seven counts: first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (Count One); third-degree conspiracy to distribute controlled dangerous substances (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (Count Two); third-degree possession of heroin, N.J.S.A. 2C:35-10(a) (Count Three); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Four); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7(a) (Count Five); second-degree conspiracy to possess firearms, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:39-5 (Count Six); and second-degree possession of a...

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