SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6289-91T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SARAH RICCARDI,
Defendant-Appellant.
__________________________________
Submitted September 27, 1995 - Decided October 19, 1995
Before Judges Baime, Villanueva and Kimmelman.
On appeal from Superior Court of New
Jersey, Law Division, Bergen County.
Philip M. Saginario, attorney for appellant.
Charles R. Buckley, Deputy Attorney General, Acting
Bergen County Prosecutor, attorney for respondent
(Susan W. Sciacca, Special Deputy Attorney General,
Acting Assistant Prosecutor, of counsel and on
the brief).
The opinion of the court was delivered by
BAIME, J.A.D.
A Bergen County grand jury charged defendant along with Hector Matias, Eddie Rosario and Jaime Negroni with distributing between one-half ounce and five ounces of cocaine (N.J.S.A. 2C:35-5a(1) and 5b(2)), distributing cocaine in a school zone (N.J.S.A. 2C:35-5a and -7), possession of cocaine (N.J.S.A. 2C:35-10a(1)), possession with intent to distribute over five ounces of cocaine (N.J.S.A. 2C:35-5a(1) and 5b(1)), possession of
the same drug with intent to distribute in a school zone
(N.J.S.A. 2C:35-5a and -7), possession of the same drug (N.J.S.A.
2C:35-10a(1)) and conspiracy to violate the Comprehensive Drug
Reform Act (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-1). The
indictment also charged Rosario and Negroni with other crimes.
Matias was convicted on several of the counts in a separate
trial. Rosario then pled guilty and agreed to testify against
his codefendants. Following a protracted trial, defendant was
found guilty of conspiracy but was acquitted of the remaining
charges. Negroni was convicted on several of the counts and was
acquitted on others. After denying defendant's motion for a
judgment of acquittal, the trial judge imposed a custodial term
of five years.
Defendant appeals, contending (1) the trial judge
erroneously refused to instruct the jury in accordance with
defendant's requests to charge on statutory entrapment, (2) due
process entrapment was established as a matter of law, and (3)
the trial judge erred by propounding special interrogatories to
the jury in the verdict sheet. We find no merit in these
arguments and affirm defendant's conviction.
We need not recount the facts at length. Investigator
Edward DiMaggio of the Bergen County Narcotics Task Force first
met defendant while purchasing ice cream at a Dairy Queen she
owned. The two engaged in conversation for approximately twenty
minutes. Defendant asked numerous personal questions concerning
DiMaggio's employment and marital status. Although the
investigator had no reason to suspect defendant of criminal
activity, in order to protect his undercover status, he claimed
that he had just flown to New Jersey from Florida where he had
left his girlfriend. DiMaggio added that he had not worked in a
long time. Defendant pointedly asked DiMaggio why he had left
Florida in "such a hurry." The nature of defendant's inquiry
raised suspicions in DiMaggio's mind, but, after accepting her
business card, the investigator made no further effort to
continue the conversation.
Approximately a week later, however, DiMaggio telephoned
defendant. In the course of their conversation, defendant
repeated her questions regarding DiMaggio's lack of employment
and ultimately asked him whether he was a drug dealer. DiMaggio
explained that he had sold cocaine in Miami, but had no supplies
or connections in New Jersey. Defendant then offered to assist
DiMaggio in obtaining a supplier.
Defendant later introduced DiMaggio to Rosario. The three
met at the Dairy Queen where they discussed purchasing varying
amounts of cocaine. There followed a series of transactions in
which DiMaggio and other members of the narcotics task force
purchased increasingly large amounts of cocaine from Rosario,
Matias and Negroni. Rosario testified at trial that defendant
asked him what she would receive from the first deal. Although
Rosario promised to give defendant cocaine, he never delivered,
choosing to share the profits with Matias and Negroni instead.
Arrangements were made for DiMaggio to purchase a full kilo
of cocaine. However, defendant learned that the BMW driven by
DiMaggio was listed as "not on file" with the Division of Motor
Vehicles. She also found that a telephone number given by one of
the agents who had accompanied DiMaggio, Michael Rodriguez,
belonged to the Bergen County Narcotics Task Force. Defendant
immediately confronted DiMaggio with what she had learned, and
the two agreed to meet at the Dairy Queen.
Lieutenant John Quigley, posing as a member of DiMaggio's
drug network, accompanied DiMaggio to the meeting. In order to
shift suspicion from themselves, Quigley and DiMaggio told
defendant they suspected Rodriguez was either a police officer or
an informant. Although defendant expressed concerns about being
arrested and jeopardizing her suppliers, Quigley and DiMaggio
apparently managed to alleviate her suspicions.
On the next day, Quigley met alone with defendant to discuss
the purchase of the kilo. Although defendant appeared
apprehensive, she discussed the price of the cocaine and how much
money she wanted for her role in the transaction. She
specifically demanded $2,500 and a quantity of cocaine for her
personal use. In later meetings with defendant, Quigley
explained that he had phased DiMaggio out of the transaction
because of DiMaggio's friendship with Rodriguez. He subsequently
showed defendant a briefcase containing $30,500. After seeing
the money, defendant, in Quigley's presence, telephoned Rosario
and arranged for the sale of the cocaine. Defendant was later
given a "sample" of the kilo.
Arrests were made when Rosario, Matias, and Negroni
attempted to deliver the cocaine to Quigley. The investigators
retrieved a knapsack containing over two pounds of the drug. In
an oral statement later given to the police, defendant admitted
her role in the conspiracy.
Defendant at trial did not contest most of the State's
evidence, but relied instead on the defense of entrapment. She
claimed that she had been seduced by DiMaggio, who ultimately
persuaded her to introduce him to a drug supplier. According to
her testimony, she had never sold drugs, but knew at least one
dealer who had previously supplied her with cocaine. Defendant
claimed that she reluctantly participated in the drug transaction
because she was "romantically involved" with DiMaggio, who
repeatedly assured her she was blameless.
It is against this factual backdrop that we consider
defendant's arguments.
We reject defendant's claim that the trial judge committed reversible error when he refused to instruct the jury in accordance with the requests to charge submitted by the defense. We have carefully examined the trial judge's jury instructions, which tracked the model charge on entrapment. We find no error capable of producing an unjust result.
In several recent decisions, our Supreme Court has traced the evolution of New Jersey law dealing with entrapment. We see no need to tread upon ground so exhaustively covered in State v.
Florez,
134 N.J. 570 (1994), State v. Fogarty,
128 N.J. 59
(1992), and State v. Johnson,
127 N.J. 458 (1992). Suffice it to
say, New Jersey law recognizes both statutory entrapment and due
process entrapment. Under the Code of Criminal Justice,
entrapment is an affirmative defense which the defendant must
prove by a preponderance of the evidence. State v. Florez, 134
N.J. at 583. The statutory defense, N.J.S.A. 2C:2-12, has both
subjective and objective elements. State v. Rockholt,
96 N.J. 570, 579 (1994). "Subjective entrapment occurs when the police
implant a criminal plan in the mind of an innocent person who
would not ordinarily have committed the offense." State v.
Florez, 134 N.J. at 583-84. Objective entrapment takes place
when the police conduct "is so egregious as to `impugn the
integrity of the court'" permitting a conviction or "causes an
average citizen to commit a crime." Id. at 584 (quoting State v.
Fogarty, 128 N.J. at 65). "The statutory entrapment defense
based upon both subjective and objective elements is an issue
that the jury must determine." Ibid.
In contrast, due process entrapment focuses exclusively on
government conduct. State v. Johnson, 127 N.J. at 470. Due
process entrapment occurs when government conduct is "patently
wrongful in that it constitutes an abuse of lawful power,
perverts the proper role of government, and offends principles of
fundamental fairness." Id. at 473; see generally State v.
Talbot,
71 N.J. 160 (1976). Due process entrapment poses an
issue of law that must be decided by the court. State v. Florez,
134 N.J. at 584.
The trial judge's instructions on statutory entrapment
clearly apprised the jury of the subjective and objective
elements required by N.J.S.A. 2C:2-12. Although the judge's
instructions did not follow defendant's requests to charge word
for word, the essential legal requisites of the defense were
plainly conveyed to the jury. Indeed, in some respects the
charge as given was overly favorable to the defense. For
example, the judge told the jury the State bears the burden of
proving defendant's predisposition to commit the crime "beyond a
reasonable doubt." This instruction is wrong because it tends to
fragment the requisites of the defense and dilutes the
defendant's statutory duty to establish entrapment by a
preponderance of the evidence. N.J.S.A. 2C:2-12b.
In any event, the only principle contained in defendant's
requests that was not arguably conveyed to the jury pertains to a
guideline adopted by the Federal Bureau of Investigation which
bars an officer from offering to a suspect an inducement to
commit a crime unless there is reasonable indication the subject
is predisposed to commit the offense. The United States Supreme
Court referred to the guideline in Jacobson v. United States,
503 U.S. 540, 549 n.2,
112 S.Ct. 1535, 1540,
118 L.Ed.2d 174, 184
(1992). There, the Court said that a defendant's predisposition
must exist prior to the defendant's "being approached by
Government agents." Id. at 549, 112 S.Ct. at 1540, 118 L.Ed.
2d
at 184. Our Supreme Court has similarly stated in the context of
due process entrapment that the "police should ordinarily have a
reasonable suspicion that the targeted defendant would be likely
to engage in the commission of the crime contemplated." State v.
Florez, 134 N.J. at 587; see also State v. Johnson, 127 N.J. at
475.
We do not read these opinions as requiring that the police
must have evidence of a defendant's predisposition before they
ever seek to contact him. The courts have never required that
law enforcement officers have a reasonable suspicion of criminal
activity before commencing an investigation. To the contrary, we
have long recognized that "[t]he police officer's duties include
vital preventive roles." State v. Dilley,
49 N.J. 460, 464
(1967). In other contexts, it has been said that the police do
not violate constitutional principles by "`merely approaching an
individual on the street or in another public place, by asking
him if he is willing to answer some questions, by putting
questions to him if the person is willing to listen, or by
offering as evidence in a criminal prosecution his voluntary
answers to such questions.'" State v. Davis,
104 N.J. 490, 497
(1986) (quoting Florida v. Royer,
460 U.S. 491, 497,
103 S.Ct. 1319, 1324,
75 L.Ed.2d 229, 236 (1983)). See also State v.
Sheffield,
62 N.J. 441, 447, cert. denied,
414 U.S. 876,
94 S.Ct. 83,
38 L.Ed.2d 121 (1973). There are a myriad of daily street
encounters between citizens and police which are initiated by the
police for a wide variety of purposes. We know of no
constitutional requirement that all such encounters must be
preceded by a reasonable suspicion that criminal activity is
afoot.
It is certainly reasonable to require law enforcement
officers to have some reasonable suspicion that a citizen is
predisposed to commit a crime before offering that citizen an
inducement to participate in a criminal venture. It is far
different to suggest that law enforcement officers may not even
approach a citizen to determine whether such a predisposition
exists without first harboring a reasonable suspicion of the
citizen's criminal inclination. There is a distinction between
"government conduct that merely highlights the temptation of the
crime itself" and government conduct that threatens, coerces, or
induces a person into committing criminal activity. Jacobson v.
United States, 503 U.S. at 558, 112 S.Ct. at 1545, 118 L.Ed.
2d at
190 (O'Connor, J., dissenting).
In this case, for example, no evidence was presented that
DiMaggio offered defendant an inducement to commit a crime before
she expressed an interest in drug activity. Although DiMaggio
had no hard evidence that defendant was involved in the drug
trade before telephoning her, defendant's subsequent statements
clearly raised a reasonable suspicion that she was so inclined.
Thus, the trial judge did not err by refusing to charge the jury
that a police officer may not offer a citizen an inducement to
commit a crime without having first a reasonable suspicion of the
targeted defendant's predisposition. The evidence did not
support such an instruction.
We add that even if we are incorrect regarding the
distinction we have drawn, we would not reverse defendant's
conviction in light of the strong evidence of defendant's guilt.
We would find any error harmless beyond a reasonable doubt.
We find no basis to disturb the trial judge's denial of defendant's post-verdict motion for a judgment of acquittal. The record does not support defendant's claim of due process entrapment. In reaching this conclusion, we have applied the factors enunciated in State v. Johnson, 127 N.J. at 474. The defense was disproved by clear and convincing evidence. State v. Florez, 134 N.J. at 590-91. While defendant's claim that she was seduced by DiMaggio is indeed disturbing, it was not substantiated by the evidence presented at trial. We note that defendant's testimony on this point was riddled with contradictions and inconsistencies and was not corroborated by independent proofs. Moreover, defendant continued to participate in the conspiracy long after DiMaggio's role ended. It cannot fairly be said that due process entrapment was established as a matter of law.
We quickly dispose of defendant's contention that the trial judge erred by submitting special interrogatories to the jury. The short answer to this argument is that the verdict sheet does not contain special interrogatories. Rather, it lists each count of the indictment and specifies the date, place and crime
alleged, followed by spaces for the jury to check "not guilty" or
"guilty," and blanks for the amount of the cocaine where
gradation is in issue. The verdict sheet fully complied with R.
3:19-1(b).
The singular vice of special interrogatories "is their
potential for destroying the ability of the jury to deliberate
upon the issue of guilt or innocence free of extraneous
influences." State v. Simon,
79 N.J. 191, 199 (1979). Special
interrogatories "can constitute a form of mental conditioning
which is antithetical to the untrammeled functioning of the
jury." Id. at 200.
Here, the verdict sheet did not have the capacity to
proselytize the jury to the guilt of the defendant. Nor did it
have the potential for perverting the jury's deliberative
processes by encroaching upon its freedom in structuring its
inquiry. As we noted earlier, the trial was a lengthy one, and
the indictment had multiple counts. It would have been extremely
difficult for the jury to have deliberated without specific
references to the charges, dates and locations alleged. The
trial judge did not abuse his discretion.
We note one further point before leaving the subject.
Defendant contends that the verdict sheet should have contained a
specific reference to the defense of entrapment. "Not guilty by
reason of entrapment" is not a separate verdict, since, unlike a
finding of "not guilty by reason of insanity," it has no
independent consequences. See N.J.S.A. 2C:4-8; R. 3:19-2. We
find no error in the trial judge's failure to make specific
reference to the defense of entrapment in the verdict sheet. See
State v. Florez,
134 N.J. 570, 591 (1994).
Affirmed.