State v. Fair

• Decision Date: 19 April 2022
• Docket Number: A-2900-17,A-3526-17,A-4291-17,A-2754-17
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES FAIR, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. HANEEF WALKER, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH GERMAN, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALTYREEK LEONARD, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES FAIR, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. HANEEF WALKER, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH GERMAN, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALTYREEK LEONARD, Defendant-Appellant.

Nos. A-2754-17, A-2900-17, A-3526-17, A-4291-17

Superior Court of New Jersey, Appellate Division

April 19, 2022

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 19, 2020

On appeal from the Superior Court of New Jersey, Law Division Monmouth County, Indictment No. 14-10-1876.

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

Joseph E. Krakora, Public Defender, attorney for appellant Haneef Walker (Michele A. Adubato, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Keith German (Kisha M. Hebbon, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Altyreek Leonard (David A. Gies, Designated Counsel, on the briefs).

Christopher J. Gramiccioni, Monmouth County Prosecutor attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the briefs; Lisa Sarnoff Gochman, of counsel and on the briefs).

Appellant, Haneef Walker, filed a pro se supplemental brief.

Before Judges Currier, Gooden Brown and DeAlmeida.

OPINION

GOODEN BROWN, J.A.D.

These appeals arise from a lengthy and broad-based investigation into criminal activity in the Asbury Park area beginning in the Fall of 2013. The investigation, which was supervised by members of the Monmouth County Prosecutor's Office (MCPO) and dubbed "Operation Dead End," targeted an alleged racketeering conspiracy among gang members and others believed to be part of a criminal enterprise specializing in the unlawful acquisition and use of firearms, drug trafficking, and associated crimes. The investigation involved the interception of over 27, 000 communications consisting of texts and phone calls pursuant to wiretap orders, the retrieval of historical phone records and cell-site information, physical surveillance, undercover drug purchases, and the seizure of physical evidence. The resulting indictment returned on October 27, 2014, consisted of 219 counts charging forty-four defendants with numerous offenses, the most serious of which were conspiracy to engage in racketeering, conspiracy to commit murder, promoting organized street crime, armed robbery, aggravated assault, burglary, theft, drug, and gun offenses.

Gang members James Fair, Haneef Walker, and Altyreek Leonard were among those indicted. Fair was charged in 159 counts, Walker was charged in fifty-four counts, and Leonard was charged in fifty-six counts. Keith German, an Asbury Park police officer, was also indicted and charged in nine counts based on conversations intercepted on the wiretap of Fair's cell phone as well as other evidence uncovered during the investigation.

Critically, in the racketeering conspiracy charged in count one, Fair, Walker, Leonard, and German, along with numerous other co-defendants, allegedly agreed

that, in conducting the affairs of the [criminal] enterprise, the defendants would commit robberies, burglaries, thefts, and shoplifting, in order to obtain money and/or controlled dangerous substances [CDS] and/or other proceeds for members of the enterprise, and that the defendants would acquire and transfer firearms between members of the criminal enterprise for use in the commission of said crimes as well as for the targeting of rival gang members; and further, that the defendants would be on the lookout for, and would report the location of, rival gang members targeted for homicide and/or assault by members of the enterprise, and that the defendants would attempt to kill and/or assault said rival gang members when located; and further that defendants would obtain cocaine and/or heroin and/or methylone a/k/a "Molly" and/or oxycodone in order to redistribute said [CDS] to buyers in and around Monmouth County.

Prior to trial, various defendants moved to: (1) dismiss counts of the indictment; (2) suppress statements to police, physical evidence seized pursuant to a search warrant issued after a motor vehicle stop, and communications intercepted during the three-month wiretap investigation; and (3) sever defendants for purposes of trial. As a result of the State's motion for joinder, on March 30, 2017, the trial judge ordered that the six remaining defendants, whose cases still awaited disposition, would be separated into two trial groups with Fair, Walker, and German in one group, and Leonard and two other co-defendants, one of whom was Harry Clayton, in the other group. Additionally, in May 2017, the State successfully moved to admit intrinsic evidence that co-defendant Clayton was involved in manufacturing crack cocaine as well as evidence, under N.J.R.E. 404(b), of Fair's, Walker's, and Leonard's gang membership.

After three days of jury selection, a joint jury trial of Fair, Walker, and German commenced on June 6, 2017. At the close of the State's case, defendants moved for judgment of acquittal pursuant to Rule 3:18-1, which the trial court granted for certain counts but otherwise largely denied.^[1] The trial ended on September 27, 2017, with the jury's verdict after six days of deliberations.

The jury convicted Fair of eighty crimes: first-degree conspiracy to engage in racketeering, N.J.S.A. 2C:5-2 and 2C:41-2(c) and (d) (count one); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (counts two, six, and eleven); second-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count twelve); second-degree attempted armed robbery, N.J.S.A. 2C:5-1 and 2C:15-1 (count seven); second-degree conspiracy to commit unlawful possession of a handgun, N.J.S.A. 2C:5-2 and 2C:39-5(b) (count fifty-eight); second-degree conspiracy to commit possession of a firearm for an unlawful purpose, N.J.S.A. 2C:5-2 and 2C:39-4(a) (counts thirty-five and forty-nine); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts eight, fifteen, thirty-six, thirty-nine, forty-four, and fifty); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seventeen); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts nine, sixteen, forty, forty-five, and fifty-nine); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eighteen); second- degree unlawful possession of a community gun, N.J.S.A. 2C:39-4(a)(2) (count sixty); first-degree promoting organized street crime, N.J.S.A. 2C:33-30(a) (count forty-seven); second-degree promoting organized street crime, N.J.S.A. 2C:33-30(a) (counts twenty-five and forty-one); third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2 (counts nineteen and twenty-two); second-degree burglary, N.J.S.A. 2C:18-2 (count thirteen); third-degree burglary, N.J.S.A. 2C:18-2 (counts twenty and twenty-three); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count fourteen); third-degree conspiracy to commit theft of movable property, N.J.S.A. 2C:5-2(a)(1) and 2C:20-3(a) (count twenty-seven); fourth-degree theft of movable property, N.J.S.A. 2C:20-3(a) (count twenty-one); third-degree theft of movable property, N.J.S.A. 2C:20-3(a) (counts twenty-four and twenty-eight); conspiracy to commit the disorderly persons offense of theft by deception, N.J.S.A. 2C:5-2 and 2C:20-4 (count twenty-nine^[2]); the disorderly persons offense of theft by deception, N.J.S.A. 2C:20-4 (count thirty); second-degree conspiracy to commit shoplifting, N.J.S.A. 2C:5-2, 2C:20-11, and 2C:20-7.1 (count thirty-one); second-degree shoplifting, N.J.S.A. 2C:20-11(b)(1) (count thirty-two); third-degree fencing, N.J.S.A. 2C:20-7.1 (count thirty-three); third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(2) (count thirty-seven); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count thirty-eight); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count forty-three); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3 (count forty-two); second-degree child endangerment, N.J.S.A. 2C:24-4(a) (counts 46 and 124); third-degree false public alarms, N.J.S.A. 2C:33-3 (count seventy-five); fourth-degree conspiracy to commit stalking, N.J.S.A. 2C:5-2 and 2C:12-10 (count seventy-seven); third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (counts 164 and 209); third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(3) (counts 102, 109, 116, 119, 127, 134, 139, 144, 166, 180, 187, and 194); third-degree conspiracy to commit distribution of CDS, N.J.S.A. 2C:5-2 and 2C:35-5 (counts 85, 167, 202, and 208); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3) and 2C:35-5(b)(5) (counts 165 and 210); second-degree distribution of CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (counts 106, 113, 123, 131, 184, 191, and 198); third-degree distribution of CDS within 1, 000 feet of school property, N.J.S.A. 2C:35-7 (counts 141 and 146); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count 213).^[3]

Along with Fair, the jury convicted Walker of twenty-five crimes racketeering conspiracy (count one); conspiracy to commit armed robbery (counts two and six); attempted armed robbery (count seven); conspiracy to commit possession of a firearm for an unlawful purpose (counts thirty-five and forty-nine);...