(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
STATE OF NEW JERSEY V. HARRY KITTRELL (A-107-95)
Argued February 13, 1996 -- Decided July 3, 1996
GARIBALDI, J., writing for a majority of the Court.
The issue on appeal is whether the cutting and repackaging of crack cocaine inside an apartment of
another is sufficient to sustain a conviction under N.J.S.A. 2C:35-4, the statute entitled "Maintaining or
Operating a Controlled Dangerous Substance Production Facility."
Detective Robert Wright of the Hackensack Police Department, Narcotics Division, had Harry
Kittrell under surveillance for over a year. During that time, Detective Wright observed Kittrell standing
outside an apartment complex located at 69 Railroad Avenue in Hackensack, even though Kittrell did not
live at that location. Kittrell was also frequently observed in the hallway of the building on 69 Railroad
Avenue or entering apartment A-1 on the first floor. Albertina Brown lived in Apt. A-1. The building on 69
Railroad Avenue is considered by police to be in a high drug distribution area.
Based on confidential information from informants and his own observations of Kittrell, Detective
Wright sought an obtained a search warrant for Apt. A-1 on September 13, 1991. Prior to the apartment
search, Detective Wright removed four small blue bags of what appeared to be cocaine from underneath an
air conditioner that Kittrell had been continually observed reaching beneath. After Kittrell was arrested, the
police conducted their search of Albertina Brown's apartment. In the bathroom, an officer found a brown
eyeglass holder on top of the medicine cabinet that contained small plastic bags of what appeared to be
cocaine. No other contraband was found in the apartment. The total amount of cocaine retrieved from the
apartment and from underneath the air conditioner was 3.83 grams.
Albertina Brown was arrested and brought to police headquarters. At headquarters, Brown gave a
statement to police. She claimed, among other things, that Kittrell had used her apartment in the past to cut
up and package crack cocaine that he had purchased in New York.
Kittrell and Albertina Brown were indicted on December 5, 1991. Kittrell was charged with
maintaining or operating a controlled dangerous substance (CDS) facility (count one); possession of CDS,
cocaine (counts three and five); and possession of cocaine with intent distribute (counts two and four).
Albertina Brown pled guilty to reduced charges and was a witness for the State. However, when she was
called to testify, Brown repudiated the statements she had given at police headquarters in respect of Kittrell
using her apartment to cut up and package cocaine. The trial court allowed the State to introduce Brown's
statement made at the police station as a prior inconsistent statement.
The jury returned a verdict of guilty on all counts. After granting the State's application for an
extended term, the court sentenced Kittrell on count one to sixty years imprisonment with thirty years of
parole ineligibility. On each of the remaining counts, the court imposed a concurrent sentence of eight years
with three years of parole ineligibility. The sentence was ordered to run concurrently with a ten year
extended term sentence for distribution of cocaine that Kittrell was already serving.
The Appellate Division affirmed Kittrell's convictions but ordered that the possessory offenses (counts two through five) should merge with count one, the maintaining a production facility offense. The Appellate Division did find that Kittrell's sentence was excessive and, accordingly, remanded for resentencing
on the production facility charge, the merger of the possession and possession with intent charges, and a
determination of the amount of gap time credit that Kittrell was entitled to receive.
The Supreme Court granted Kittrell's petition for certification.
HELD: Cutting and repackaging crack cocaine inside the apartment of another is sufficient to sustain a
conviction under N.J.S.A. 2C:35-4. Based on a review of the evidence and applying the statute as
written, there is sufficient evidence to convict Kittrell under N.J.S.A. 2C:35-4.
1. For Kittrell to be convicted under N.J.S.A. 2C:35-4, he must "maintain a facility" that "manufactures" a
controlled dangerous substance. To establish "maintenance," there must be some evidence of continuity in
Kittrell's use of Brown's apartment to manufacture crack cocaine. According to the plain language of the
statute, Kittrell's conduct falls within its purview. Based on Brown's initial statement, a reasonable inference
can be drawn that Kittrell maintained her apartment as a packaging or repackaging facility. His continued
use of her apartment as a facility to cut up, package and repackage crack cocaine constitutes the
maintenance of a drug production facility that is prohibited under N.J.S.A. 2C:35-4. (pp. 9-13)
2. The legislative history of N.J.S.A. 2C:35-4 supports the conclusion that Kittrell's acts in Brown's
apartment violate the statute. The language of N.J.S.A. 2C:35-4 identifies all of the material elements
necessary to convey the Legislature's intent. It states that "any premises" used to "manufacture" controlled
dangerous substances, which includes "packaging and repackaging," constitutes a CDS production facility.
The Legislature did not intend that the statute be applied only to individuals who operate "commercial"
manufacturing facilities. The Commentary to the statute clearly expresses the Legislature's intention that
private residences used to produce crack fall within the purview of the statute. Thus, judicial construction
need not disturb the plain meaning of the statute, which operates to criminalize the production, for
distribution, of controlled dangerous substances in any premises. (pp. 13-17)
3. Kittrell claims that N.J.S.A. 2C:35-4 is unconstitutionally vague as applied to him because his alleged
conduct would also support a conviction under N.J.S.A. 2C:35-5, the "manufacturing and distribution" statute,
a third-degree crime with must less severe penalties. Because the provisions at issue specify the activity
proscribed and the penalties available on conviction, the notice requirements of the Due Process Clause are
satisfied. Therefore, despite overlapping with the manufacturing and distributing statute, the production
facility statute as written is not unconstitutionally vague. (pp. 17-22)
4. The State's evidence, viewed in the light most favorable to the State, could sustain a reasonable inference
that Kittrell brought crack to Albertina Brown's apartment more than once and that he continued to use her
apartment to store the cocaine, cut the crack into smaller pieces, and place the crack in small bags for later
distribution. The evidence, combined with reasonable inferences arising therefrom, would clearly fall within
the plain language of N.J.S.A. 2C:35-4 and are sufficient to sustain a conviction under that statute.
(pp. 22-27)
5. Kittrell's claim that the reasonable doubt charge was unconstitutional because of the judge's references to
"moral certainty" is without merit. The qualifying phrases in the charge ensured that the jury understood that
moral certainty was not to be disassociated from the evidence in the case. (pp. 27-29)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, dissenting, in which JUSTICE HANDLER joins, would reverse because: 1) the
evidence is insufficient to support a conviction; and 2) the trial court's failure to instruct the jury on a
requirement of continuity in applying N.J.S.A. 2C:35-4 constitutes plain error. Moreover, the Court's
affirmance of this first-degree conviction on such a shaky record will encourage prosecutors to use the
production facility law selectively and arbitrarily to target disfavored drug defendants.
JUSTICES POLLOCK, O'HERN and COLEMAN join in JUSTICE GARIBALDI's opinion.
JUSTICE STEIN filed a separate dissenting opinion in which JUSTICE HANDLER joins. CHIEF
JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
107 September Term l995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HARRY KITTRELL,
Defendant-Appellant.
Argued February l3, l996 -- Decided July 3, 1996
On certification to the Superior Court,
Appellate Division.
Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender,
attorney).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal concerns the application of N.J.S.A. 2C:35-4, entitled, "Maintaining or operating a controlled dangerous substance production facility" and requires the Court to determine whether cutting and repackaging crack cocaine inside
the apartment of another is sufficient to sustain a conviction
under that statute.
For over a year, and usually at night, Detective Robert Wright of the Hackensack Police Department, Narcotics Division, observed defendant, Harry Kittrell, standing outside an apartment complex located at 69 Railroad Avenue in Hackensack, notwithstanding the fact that his last known address was on Pine Street (located at the opposite side of the city). Detective Wright also frequently observed defendant in the hallways of the building on 69 Railroad Avenue or entering apartment A-1 on the first floor. Albertina Brown lived in Apt. A-1.
The apartment complex located at 69 Railroad Avenue is a three story walk-up with six apartments on each floor. The only entrance to the building is located approximately 15-20 feet from the street and is well illuminated by street lights. The area surrounding and including 69 Railroad Avenue is located in a high drug distribution area and the Hackensack Narcotics Division has made hundreds of drug arrests there. Based upon confidential information from informants and his own observations of defendant, Detective Wright sought and obtained a search warrant for Apt. A-1 on September 13, 1991.
At trial, Detective Wright testified that at approximately 11:30 p.m on September 13, 1991, he, along with at least five other officers, began surveillance of 69 Railroad Avenue. Detective Wright was stationed with Detective Sergeant Albert Gutierrez in a van parked about fifty feet from the entrance of
69 Railroad Avenue. The officers were equipped with binoculars
to conduct the surveillance.
Near midnight, a brown car driven by a female, who was later
identified as Makeba Drayton, and with defendant in the passenger
seat, arrived and parked in front of the building. The officers
in the van stated that defendant exited the car and entered the
building, emerging a few minutes later. The officers testified
that defendant placed an object on a ledge under an air
conditioner in a window to Albertina Brown's apartment before
returning to the car.
Officer Gutierrez testified that an unidentified male
approached the passenger side of Drayton's car approximately ten
minutes after defendant exited the building and re-entered the
car. After a brief conversation between defendant and the male,
defendant exited the car, went to the air conditioner, removed an
object from underneath it, walked back to the other man, and
exchanged whatever he had removed from under the air conditioner
for "what appeared to be money." Defendant then rejoined Drayton
in the car.
Officer Wright testified that he observed a similar
transaction around 12:20 a.m. The detective testified that at
about 12:20 a.m. on what was then September 14, 1991, a second
unknown man, wearing a yellow shirt, walked up to the passenger
side of Drayton's car and spoke to defendant. Again, after a
brief conversation, defendant exited the car, walked to the air
conditioner and removed something. After observing this,
Detective Wright radioed to other police units for assistance in
executing the warrant.
Two officers and a detective responded to Wright's call.
One officer detained defendant, and Detective Wright removed four
small blue bags of what appeared to be cocaine from underneath
the air conditioner. The officers arrested defendant after a
cursory search uncovered $15 and a pager.
Following defendant's arrest, the police conducted a search
of Albertina Brown's apartment. The police discovered Albertina
Brown, Robert Clark (defendant's cousin) and a small child inside
apartment A-1. These individuals were detained in the living
room while the officers conducted a search of the apartment.
Officer Kevin O'Boyle conducted a search of Brown's bathroom and
found a brown eyeglass holder on the top of the medicine cabinet.
He discovered a number of small plastic bags containing what
appeared to be cocaine inside the holder. No other contraband
was found in the apartment.
A laboratory certificate described the substances seized
from the eyeglass holder as: (1) 22 blue topped vials, containing
a total of 1.53 grams of cocaine; (2) 16 yellow plastic bags,
totalling 1.2 grams of cocaine; (3) 50 blue plastic bags
totalling 1.08 grams of cocaine; and (4) a bag of marijuana
certified to contain .53 grams. The four blue bags retrieved
from under the air conditioner were certified to contain a total
of .10 grams of cocaine. The total amount of cocaine retrieved
from the apartment and from underneath the air conditioner was
3.83 grams.
Albertina Brown was arrested and brought to police
headquarters. Robert Clark was released. At the police
headquarters, Brown gave the following statement to the police:
I was in my apartment and you guys came in.
You guys found some crack in my bathroom.
The crack was not mine. It was Harry's. He
just left the apartment. I'm not going to
take the weight this time for Harry. He was
in my apartment tonight and was in my
bathroom. I let him use my apartment to cut
up his crack but none of the crack you found
is mine. I used to sell crack for Harry but
I got caught and am doing probation. I am
not going to take the weight for Harry again.
He makes all the money and I go to jail. The
crack you found is Harry's. He buys it in
New York and cuts it up in my apartment. I
do not sell crack anymore. He likes to keep
his stash in my apartment. He keeps a small
supply on him, or in my mailbox, or under the
air conditioner. If he gets caught he would
only be caught with possession instead of
distribution. He has people selling for him
all around town. He likes to threaten
everyone in the projects. But I'm not
afraid. I'm not going to take his weight.
Everyone that sells for Harry is afraid to
testify against him because of his size and
he has guns. I ain't afraid to testify. No
way am I going to take his weight again.
On December 5, 1991, the Grand Jury indicted defendant,
Harry Kittrell, and co-defendant, Albertina Brown. The
indictment charged defendant with maintaining or operating a
controlled dangerous substance (CDS) facility, contrary to
N.J.S.A. 2C:35-4 (count one); possession of a CDS, cocaine,
contrary to N.J.S.A. 2C:35-10a(1) (counts three and five); and
possession of cocaine with intent to distribute, contrary to
N.J.S.A. 2C:35-5a(1) and 5b(3) (counts two and four).
Co-defendant Brown pled guilty to reduced charges and was a
witness for the state. However, when Brown was called to
testify, she repudiated the statement she had given at police
headquarters and contended that Wright, after reading her rights
to her, had her sign a blank piece of paper. She understood that
if she signed the paper she could leave the headquarters. She
denied telling Wright that defendant left crack in her apartment
on the night of the arrest. Brown did testify, however, that
defendant was in her apartment earlier in the day, but did not
remember whether he had used the bathroom where the narcotics
were found. Brown also denied telling Wright that defendant had
placed crack under her air conditioner, and in fact denied having
an air conditioner.
Brown further denied that either she or defendant used the
apartment to distribute drugs. Brown did testify, however, that
during the day of the search defendant came into her apartment
with a piece of crack cocaine "no bigger than [your thumb]" and
"[H]e didn't package into small bags, just cut it up and left."
According to Brown, after defendant cut the crack cocaine on that
occasion, "he left the crumbs [that] were on the plate" for Brown
"because [she] smokes." Brown testified that on that occasion,
but no other, she had allowed defendant to use her apartment in
exchange for crack, "because [she] didn't have no money,
and...wanted a hit." She testified that defendant put all of the
pieces into one bag. Brown denied that defendant had repackaged
what he had cut up into smaller bags. She further denied that
the drugs that were seized in her apartment were cut in the
apartment. The trial court allowed the State at trial to
introduce Brown's statement at the police station as a prior
inconsistent statement. The defendant did not testify at trial,
but Makeda Dayton, the driver of the car, testified that
defendant never went in the apartment building that night.
The State's expert at trial, Bergen County Investigator
Kerriann Gianotti, testified that the vials found in Apt. A-1
probably sold for $5 to $15 each, while the bags sold from
between $3 and $15 per bag. Gianotti further testified that the
cocaine that was seized was "definitely" possessed with intent to
distribute, while she believed the marijuana was for personal
use. She added that crack cocaine is most frequently, but not
always, produced and repackaged in the same location. Gianotti
explained that crack is easy to manufacture, with "just a stove"
needed to make it. Gianotti testified that "anywhere you have a
heat source, a pot, water and baking soda, you can make crack."
The jury returned a verdict of guilty on all counts.
After granting the State's application for an extended term
pursuant to N.J.S.A. 2C:43-6f, the court sentenced defendant on
count one to 60 years imprisonment with a parole disqualifier of
30 years, along with a Drug Enforcement and Demand Reduction
(DEDR) penalty of $30, and a laboratory fee of $50. On each of
the remaining counts, the court imposed a concurrent sentence of
8 years with three years of parole ineligibility, along with a
separate DEDR penalty of $1000, VCCB penalty of $30, and
laboratory fee of $50. The sentence was ordered to run
concurrently with a ten year extended term sentence for
distribution of cocaine that defendant was already serving. On
May 25, 1993, defendant, pro se, filed a Notice of Appeal.
On June 20, l995, the Appellate Division issued its
unpublished opinion. The court affirmed defendant's convictions
but ordered that the possessory offenses set forth in counts 2-5
of the indictment should merge with count one, maintaining a
production facility offense. State v. Kittrell, No. A-4711-92T4
slip. op. at 15-16 (App.Div. June 20, 1995). The Appellate
Division did, however, find that defendant's sentence was
excessive, noting that the sentence far exceeded the State's
recommendation and "was the equivalent of a sentence for murder."
Id. at 15. Accordingly, the Appellate Division remanded for
resentencing on the production facility charge, the merger of the
possession and possession with intent charges, and a
determination of the amount of gap time credit that defendant was
entitled to receive. We granted defendant's petition for
certification.
142 N.J. 573 (1995).
Defendant raises several issues on appeal. First, defendant asserts that the legislative commentary to N.J.S.A. 2C:35-4 evinces the Legislature's intent that the statute is meant only to cover commercial manufacturing laboratories or "crack houses", facilities that manufacture drugs on a substantial and ongoing basis. Thus, defendant argues that a reasonable construction of the facility statute would exclude his alleged behavior. Second, defendant contends that N.J.S.A. 2C:35-4, as applied to him is unconstitutionally vague as there is nothing to distinguish conviction under N.J.S.A. 2C:35-4 for a first-degree crime, from conviction under N.J.S.A. 2C:35-5, for the manufacturing, dispensing or distributing drugs, a third-degree crime. Third, defendant asserts that the evidence was insufficient to support his conviction under N.J.S.A. 2C:35-4. Finally, defendant argues that the trial court's charge on reasonable doubt, although not objected to at trial, "served to lessen the State's burden of proof" because the charge contained references to "moral certainty."
We address each of defendant's arguments.
In 1987, in an effort to revise and strengthen the criminal drug statutes under Title 2C, the Legislature adopted the "Comprehensive Drug Reform Act." N.J.S.A. 2C:35-1 to -23. Under N.J.S.A. 2C:35-1.1, the "Declaration of policy and legislative
findings" provision, the Legislature observed: "despite the
impressive efforts and gains of our law enforcement agencies, the
unlawful use, manufacture and distribution of controlled
dangerous substances continues to pose a serious and pervasive
threat to the health, safety and welfare of the citizens of this
State." The statute further observed that "the battle against
drug abuse and drug related crime must be waged aggressively at
every level along the drug distribution chain." N.J.S.A. 2C:35-1.1c.
N.J.S.A. 2C:35-4, "Maintaining or operating a controlled
dangerous substance production facility" was enacted as part of
the Comprehensive Drug Reform Act. N.J.S.A. 2C:35-4 states:
[A]ny person who knowingly maintains or operates
any premises, place or facility used for the
manufacture of methamphetamine, lyseric acid
diethylamide, phencyclidine or any substance
classified as a narcotic...or any person who
knowingly aids, promotes, finances or otherwise
participates in the maintenance or operations
of such premises, place or facility, is guilty of
a crime of the first degree. . . .
The definition section of the statute defines "manufacture" to
mean:
[T]he production, preparation, propagation
compounding, conversion, or processing of a
controlled dangerous substance or controlled
dangerous analog, either directly or by
extraction from substances of natural origin,
independently by means of chemical synthesis, and
includes any packaging or repackaging of the
substance or labeling or relabeling of its container,
except that this term does not include the preparation
or compounding of a controlled dangerous substance
or controlled substance analog by an individual for his
own use. . .
The definitional provision of N.J.S.A. 2C:35-2 fails to
define "maintain." Webster's Third New International Dictionary
defines maintain as "to preserve in: carry on: keep up:
continue." Webster's Third New International Dictionary l362 (3d
ed. l976). We believe that that meaning reflects the
legislative intent. Therefore, for Kittrell to be convicted
under N.J.S.A. 2C:35-4, he must "maintain" a facility that
"manufactures" a controlled dangerous substance. To establish
such "maintenance" there must be some evidence of continuity in
his use of Brown's apartment to manufacture crack. Such evidence
may be as here, that he used the apartment on more than one
occasion as a manufacturing facility. We recognize that there
may be a few cases where a person will be apprehended the first
time that he operates a manufacturing facility. To sustain a
conviction under those circumstances, there must be some evidence
that the defendant intended to operate the manufacturing facility
on more than one occasion.
"As a general rule of statutory construction, we look first
to the language of the statute. If the language is clear and
unambiguous on its face and admits only one interpretation, we
delve no deeper than the act's literal terms to divine the
Legislature's intent." State v. Butler,
89 N.J. 220, 226 (1982).
N.J.S.A 2C:35-4 provides that a person is guilty of maintaining a
drug production facility, when he "knowingly maintains or
operates any premises, place or facility used for the manufacture
of . . . any substance classified as a narcotic. . . ." N.J.S.A.
2C:35-4. Furthermore, the definition of "manufacture" includes
the "preparation . . . or processing of a controlled dangerous
substance . . . and includes any packaging or repackaging of the
substance or labeling or relabeling of its container." N.J.S.A.
2C:35-2.
Based on the plain language of the statute, defendant's
conduct falls within the purview of the statute. Defendant was
charged with using Albertina Brown's apartment, with her
permission, to "cut up" and package cocaine purchased in New York
City. After executing a search warrant, the police uncovered
twenty-two vials of cocaine, sixteen small yellow plastic bags
and fifty small blue bags containing cocaine. Brown admitted to
police that the drugs that were found belonged to defendant and
that "[H]e buys it in New York and cuts it up in my apartment,"
indicating that he used her apartment to repackage drugs on more
than one occasion. The Appellate Division concluded that "the
drugs seized were packaged for distribution and from the evidence
presented, including Brown's statement, a reasonable inference
can be drawn that defendant maintained Brown's apartment as a
packaging or `repackaging facility.'" Kittrell, supra, slip op.
at 9 (citing State v. Miles,
231 N.J. Super. 27, 30 (App.Div.
1989)). Defendant's continued use of Brown's apartment as a
facility to cut up, package and repackage crack cocaine
constitutes the maintenance of a drug production facility that is
prohibited under N.J.S.A. 2C:35-4.
The legislative history to N.J.S.A. 2C:35-4 supports the conclusion that defendant's acts in Brown's apartment violate that statute. The Comprehensive Drug Reform Act defined a new first degree crime to combat facilities that have proliferated throughout the State and "have become an important part of the illicit drug trafficking networks operating in New Jersey." Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:35-4 (l987). That statute is intended to reach offenders who maintain such facilities and also those who participate in their maintenance. Id. The scope of N.J.S.A. 2C:35-4 is broad. Nevertheless, it excludes from its reach a single individual who uses a private residence for the preparation of drugs like crack or free-base cocaine:
a private residence used by its owner for the preparation, compounding or conversion of substances such as "crack" or free base cocaine would not fall within the meaning of a "production facility" as used in this section provided that the substance was "manufactured" by a single person solely for his own use.
[Cannel, New Jersey Criminal Code Annotated,
Comment on N.J.S.A. 2C:35-4 (l987)].
However,
A structure used by persons who produce or
refine crack from raw cocaine for commercial
distribution to others, however, (so called
"crack houses" or "crack kitchens") would
indeed constitute a production facility for
the purposes of this section, as would a
structure used by numerous individual addicts
who produce their own crack for example.
Defendant asserts that this Court should follow the
principles of judicial construction expressed in State v.
Alexander,
136 N.J. 563 (1994), and narrow the scope of N.J.S.A.
2C:35-4 to apply only to laboratories or crack houses that
manufacture narcotics on a substantial and ongoing basis. In
Alexander, the defendant was indicted on various drug charges,
including N.J.S.A. 2C:35-3, being a leader of a drug trafficking-network. The Court in Alexander concluded that "the words of the
statute alone under N.J.S.A. 2C:35-3. . . would not fully convey
to the jury the nature of the actual elements of the conduct that
the legislature intended to criminalize." Id. at 571. The court
observed that N.J.S.A. 2C:35-3 failed to include "important
factors used in the statute's statement of purpose to describe
the drug kingpin crime, and, to that extent, does not completely
convey the full legislative understanding in creating this
crime." Id. at 570. Specifically, the court noted that the
statement of purpose expressly makes "defendant's upper-level
role in a drug network central to the activity criminalized by
the legislature." Ibid. The court added that "the prominence of
the upper-level status of the defendant in the description and
explanation of the purpose of the crime" indicates the
legislature's intent that the level or role of the defendant in
the drug trafficking network is a "substantive part of the
crime." Ibid. Therefore, the Court concluded that the status
of the defendant is a material element of the crime and should be
conveyed in a jury instruction. Ibid.
This case can be easily distinguished from Alexander.
First, in Alexander, supra, the legislative intent that the Court
relied on was itself expressed in a statute. N.J.S.A. 2C:35-l.l
specifically stated in part that "the express purpose of this
section is to target for enhanced punishment the upper-echelon
member, so-called kingpins, of an organized drug distribution
scheme." Cannel, supra, Criminal Code Annotated, Comment to
N.J.S.A. 2C:35-4 at 612. Here, defendant relies not on a statute
but legislative commentary. A commentary cannot overcome the
plain language of the statute. State v. Miles, 23l N.J. Super.
27, 29 (App. Div. l989).
Furthermore, unlike N.J.S.A. 2C:35-3, N.J.S.A. 2C:35-4
contains all the material elements of the crime in the language
of the statute itself. Therefore, the legislative intent is
clear. Under N.J.S.A. 2C:35-4, a person is guilty of maintaining
or operating a controlled dangerous substance production facility
when any person "knowingly maintains or operates any premises,
place or facility used for the manufacture . . . of any substance
classified as a narcotic drug." N.J.S.A. 2C:35-4. Again, unlike
N.J.S.A 2C:35-3, which does not define who a "leader" in the drug
network is, N.J.S.A. 2C:35-2, specifically defines "manufacture."
N.J.S.A. 2C:35-2. The definition of "manufacture" includes
"packaging and repackaging." Ibid. The language of the statute
identifies all the material elements necessary to convey the
legislature's intent. It states that "any premises" used to
"manufacture" controlled dangerous substances, which includes
"packaging and repackaging" constitutes a CDS production
facility. See N.J.S.A. 2C:35-2, 2C:35-4.
We reject defendant's assertion that the intention of
N.J.S.A. 2C:35-4 is to subject only individuals who operate
"commercial" manufacturing facilities to the first degree crime
of maintaining a production facility. Indeed, the Legislature's
intention to criminalize the production of controlled dangerous
substances for distribution, in any premises, is reflected in the
commentary accompanying the statute. Defendant argues that the
commentary's repeated references to "commercial" manufacturing
and laboratories suggests that a CDS production facility, under
N.J.S.A. 2C:35-4, is one that produces controlled dangerous
substances over a period of time utilizing highly technical
laboratories and sophisticated equipment. However, the statute
itself defines "manufacture" to include "any packaging or
repackaging of the substance or labeling or relabeling of the
container." Moreover, the Commentary clearly expresses the
Legislature's intention that private residences used to produce
crack are within the purview of the statute. N.J.S.A. 2C:35-4.
"[A] structure used by persons who produce or refine crack from
raw cocaine for commercial distribution to others however, (so-called `crack houses,' or `crack kitchens') would indeed
constitute a production facility for purposes of this section."
Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A.
2C:35-4 (l987) (emphasis added).
Defendant was using Albertina Brown's apartment to cut up
and repackage crack cocaine for commercial distribution. Such
conduct is within the scope of N.J.S.A. 2C: 35-4. Alexander,
supra, is inapposite, and judicial construction need not disturb
the plain meaning of the N.J.S.A. 2C:35-4. That statute operates
to criminalize the production, for distribution, of controlled
dangerous substances in any premises, including "crack kitchens."
Defendant also attacks his conviction under N.J.S.A. 2C:35-4, "Maintaining or operating a drug production facility," because he contends that that statute is unconstitutionally vague as applied to him. Defendant's challenge is based on the fact that the alleged conduct in the case would support a conviction, not only under N.J.S.A. 2C:35-4, the "production facilities" statute, but also under N.J.S.A. 2C:35-5, the "manufacturing and distribution" statute, a third degree crime with much less severe penalties.
N.J.S.A. 2C:35-5, the manufacturing and distributing
statute, reads in pertinent part:
a. Except as authorized by P.L. 1970, c 226 . . . it
shall be unlawful for any person knowingly or
purposefully:
(1) to manufacture, distribute or dispense, or to possess or
have under his control with the intent to manufacture,
distribute or dispense, a [CDS]. . . .
Defendant asserts that the quality and quantity of the cocaine attributed to the defendant would satisfy the requirements of the distributing statute and that the only basis to distinguish his conduct from that proscribed by the distribution statute and subject him to the penalties of the facilities statute was the fact that defendant allegedly cut crack inside the "facility" that he "maintained" in Brown's apartment. Defendant argues that if such an increase in liability may be based upon factors as ephemeral as [cutting crack inside rather than outside], it represents an open invitation to "arbitrary and discriminatory" enforcement. State v. Jones, 198 N.J. Super. 553, 563 (App.Div. 1985). We observe that the Legislature was aware of this issue when it enacted N.J.S.A. 2C:35-4. "[I]t is expected that many persons covered under this section could also be prosecuted for the separate offense of manufacturing, distributing, or dispensing a controlled dangerous substance in violation of N.J.S.A. 2C:35-5." Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:35-4.
"[The] constitutional ban on vague laws is intended to
invalidate regulatory enactments that fail to provide adequate
notice of their scope and sufficient guidance for the
application." State v. Cameron,
100 N.J. 586, 591 (1985)
(citation omitted). The requirement that all statutes be clear
and unambiguous "is essentially a due process concept grounded in
notions of fair play." Ibid. (quoting State v. Lashinsky,
81 N.J. 1, 17 (1979)). In evaluating whether a criminal statute is
void for vagueness, this Court, adopting the pronouncement of the
United States Supreme Court, observed that "[a] defendant should
not be obligated to guess whether his conduct is criminal. Nor
should the statute provide so little guidance to the police that
law enforcement is so uncertain as to become arbitrary." State
v. Lee,
96 N.J. 156, 166 (1984)(citation omitted).
Specifically, defendant challenges N.J.S.A. 2C:35-3, a
criminal statute, as being unconstitutionally vague because his
alleged conduct would support a conviction, not only under
N.J.S.A. 2C:35-4, the "production facilities" statute, but also
under N.J.S.A. 2C:35-5, the "manufacturing and distribution"
statute, a third degree crime with much less severe penalties. A
1979 United States Supreme Court decision addressed this very
issue. United States v. Batchelder,
442 U.S. 114,
99 S. Ct 2198,
60 L. Ed 2d 755 (1979), concerned two overlapping
provisions of the Omnibus Crime Control and Safe Streets Act of
1968. Both of those provisions prohibited convicted felons from
receiving firearms, but each authorized different maximum
penalties. Batchelder, supra, 442 U.S. at 115-116, 99 S. Ct. at
___,
60 L. Ed 2d at 759. The issue the Court addressed was
"whether a defendant convicted of the offense carrying the
greater penalty may be sentenced only under the more lenient
provision when his conduct violates both statutes." Batchelder,
supra, 442 U.S. at 116, 99 S. Ct. at ___,
60 L. Ed 2d at 759
Addressing whether the two overlapping statutes, which
provide different penalties for the identical conduct, may be
void for vagueness, the Batchelder court explained "the
provisions in issue here [] unambiguously specify the activity
proscribed and the penalties available upon conviction."
Batchelder, supra, 442 U.S. at 123, 99 S. Ct. at ___,
60 L. Ed 2d at 764. The court further observed:
That this particular conduct may violate both Titles
does not detract from the notice afforded by each.
Although the statutes create uncertainty as to which
crime may be charged and therefore, what penalties may
be imposed, they do so to no greater extent than would
a single statute authorizing various alternative
punishments. So long as overlapping criminal
provisions clearly define the conduct prohibited and
the punishment authorized, the notice requirements of
the Due Process Clause are satisfied.
Rejecting the defendant's vagueness challenge, the Supreme Court next addressed the defendant's contention that the penalty scheme implicated due process and equal protection because, under such a scheme, the "prosecutor's selection of which of [the] two
penalties to apply would be `unfettered' . . . and could produce
`unequal justice.'" Batchelder, supra, 442 U.S. at 124, 99 S. Ct.
at ___, 60 L. Ed.
2d at 765. The Court rejected this argument
as "factually and legally unsound" noting that there exists a
well "settled rule" that when "an act violates more than one
criminal statute, the Government may prosecute under either so
long as it does not discriminate against any class of
defendants." Batchelder, supra, 442 U.S. at 123-24, 99 S. Ct. at
___,
60 L. Ed 2d at 764-65 (citations omitted).
The Court opined:
[T]here is no appreciable difference between the
discretion a prosecutor exercises when deciding whether
to charge under one of two statutes with different
elements and the discretion he exercises when choosing
one of two statutes with identical elements. In the
former situation, once he determines that the proof
will support conviction under either statute, his
decision is indistinguishable from the one he faces in
the latter context. The prosecutor may be influenced
by the penalties available upon conviction, but this
fact, standing alone, does not give rise to a violation
of the Equal Protection or Due Process Clause.
[Batchelder, supra, 442 U.S. at 125, 99 S. Ct. at ___,
60 L. Ed 2d at 765, (citations omitted)].
Defendant's vagueness argument is essentially the vagueness argument rejected by the Supreme Court in Batchelder. The provisions at issue, like the provisions at issue in Batchelder, specify the activity proscribed and the penalties available on conviction. Likewise, that defendant's conduct may violate both the facilities statute and the manufacturing and distributing statute, "does not detract from the notice afforded by each."
Accordingly, because the criminal statutes in this case clearly
define the conduct prohibited and the penalties imposed, the
notice requirements of the Due Process Clause are satisfied.
In State v. Reyes, 50 N.J. 454, 458-59 (1967) we stated that the test to be applied by the trial court in determining the sufficiency of the evidence is
whether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
That standard is consistent with that articulated in Jackson v.
Virginia,
443 U.S. 307, 318-19,
99 S. Ct. 2781, ___,
61 L. Ed.2d 560,__ (1979). In Jackson, supra, 443 U.S. at 318-19, 99 S. Ct.
at ___,
61 L. Ed 2d at ___, the Supreme Court explained the
appellate standard for reviewing the sufficiency of evidence to
support a criminal conviction:
[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. See Johnson v. Louisiana, 406 U.S.
[356] at 362,
32 L. Ed.2d 152,
92 S. Ct. 1620. This
familiar standard gives full pay to the responsibility
of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts.
[Jackson, supra, 443 U.S. 307, 318-19,
99 S. Ct. 2781, ___
61 L. Ed.2d 560,__,].
See also State v. Martinez,
97 N.J. 567, 572 (1984) (following
Jackson, supra, 443 U.S. 307, 318-19,
99 S. Ct 2781,
61 L. Ed.2d 560, ___, and holding that the "State's right to the benefit
of reasonable inferences cannot be used to reduce the State's
burden of establishing the essential elements of the offense
charged beyond a reasonable doubt."). Furthermore, this Court
has held "a jury may draw an inference from a fact whenever it is
more probable than not that the inference is true; the veracity
of each inference need not be established beyond a reasonable
doubt in order for the jury to draw the inference." State v.
Brown,
80 N.J. 587, 592 (l979) (citation omitted).
N.J.S.A. 2C:35-4 provides that a defendant is guilty of
maintaining or operating a CDS production facility when the
defendant "knowingly maintains or operates any premises, place or
facility used for the manufacture of [CDS]." "Manufacture" is
defined in N.J.S.A. 2C:35-2 to include "any packaging or
repackaging of the substance or labeling or relabeling of its
container."
The State's evidence, viewed in the light most favorable to
the State, could sustain a reasonable inference that Defendant
brought crack to Albertina Brown's apartment more than once (as
evidenced in Brown's statement to police that "defendant buys
cocaine in New York and cuts it up in my apartment"), and that he
continued to use Brown's apartment to store the cocaine, cut the
crack into smaller pieces, and place the crack in small bags for
later distribution. The cocaine found in the eyeglass case had
been separated into vials and yellow and blue baggies ready for
sale. When defendant was arrested, four blue baggies of cocaine
similar to the baggies found in the eyeglass case were discovered
underneath the air conditioner. The jury could have reasonably
inferred that defendant kept the greater part of the cocaine in
Brown's apartment, which he maintained as a drug manufacturing
facility, only taking small amounts to sell at a time so that if
he were arrested he would be charged only with possessing
cocaine. Those facts, combined with all of the reasonable
inferences arising from those facts, would clearly fall within
the plain language of N.J.S.A. 2C:35-4 and are sufficient to
sustain a conviction under that statute.
Two cases addressing N.J.S.A. 2C:35-4 also support
defendant's conviction. In State v. Miles, supra,
231 N.J.
Super. 27, evidence was presented to the grand jury that when the
police arrived in response to a domestic violence call,
defendant's girlfriend showed the officers various items of
suspected CDS and drug paraphernalia including 35 tinfoil packets
of cocaine, two plastic bags of cocaine, 7 vials of crack, 26
glassine envelopes bearing the logo "over the top," five plastic
bags of marijuana, a scale, cutting agents and cash. Id. at 29.
The defendant gave a statement to police admitting that he
packaged the cocaine and gave it to two people to sell, that he
purchased the cocaine in New York in bulk and repackaged it two
lines to a foil. Ibid.
The Appellate Division reversed the trial court's dismissal
of the indictment under the facilities statute. Id. at 30. The
trial court held that the facilities statute "did not include the
mere diluting of a bulk quantity of drugs and the repackaging of
those drugs into smaller units." Ibid. The Appellate Division
explained, however:
Although such commentaries are helpful in construing
ambiguous statutory language, they do not supersede the
plain language of a statute. Moreover, the
commentary's emphasis on proliferating drug
laboratories and their employment of sophisticated
technologists and chemists is not inconsistent with the
statute's plain language. The statute does include
such laboratories within its purview, but that coverage
is not inconsistent with the inclusion of repackaging
facilities.
As the Appellate Division in Miles noted, the facilities statute includes repackaging facilities, and it therefore upheld the indictment of defendant who used premises as a repackaging facility. In this case, there also is sufficient evidence to support defendant's conviction under N.J.S.A. 2C:35-4. Defendant, like Miles, used a premises to cut up and repackage for distribution CDS.
Similarly, in State v. Saez, 268 N.J. Super. 250 (App.Div. 1993), rev'd on other grounds, l 39 N.J. 279, cert. den. ___ N.J. ___, ll 6 S. Ct. 273, l 33 L. Ed 2d l94 (l995), the Appellate Division upheld the defendant's conviction under the production
facility statute, finding there was sufficient evidence to
support the defendant's conviction. In Saez, undercover
investigators observed the defendant and other co-defendants in
the process of "re-rocking" cocaine in a basement apartment. Id.
at 257. Re-rocking cocaine involves adding filler and water to
the cocaine, thereafter compressing it until it becomes hard or
rock-like. Ibid. After the substance was formed into a rock-like substance, co-defendants cut the rocks into smaller pieces
and placed them into small plastic bags. Ibid. A search was
conducted of the basement apartment, which produced evidence of
narcotic activity: a blue mixing bowl, spoon, pieces of aluminum
foil, and a number of small plastic bags inside a larger one.
Id. at 259.
The defendant claimed that the evidence was insufficient
because the State failed to prove the presence of "other types of
paraphernalia such as large scales" or "any amounts of money."
Id. at 265. The Appellate Division noted that the police
investigator described the defendant's activities as "re-rocking"
of cocaine. Id. at 266. Those activities "sufficiently
described a processing and repackaging facility." Ibid.
Upholding the defendant's conviction under N.J.S.A. 2C:35-4, the
Appellate Division found that "such activity is within the
purview of the statute." Ibid.
There was sufficient evidence to establish that defendant
was using Albertina Brown's apartment to "cut up" and repackage
crack cocaine. Such activity constitutes "manufacturing" under
N.J.S.A. 2C:35-2. The Commentary specifically indicates that
individuals who use private residences to prepare drugs for
commercial distribution to others are eligible for prosecution.
Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A.
2C:35-4. Thus, the legislative intent expressed in N.J.S.A.
2C:35-2, 2C:35-4 and the Commentary indicate that defendant
properly was convicted for maintaining a drug facility under
N.J.S.A. 2C:35-4.
Although defendant failed to object to the trial court's charge, defendant objected in a supplemental brief that the trial court's charge on reasonable doubt "served to lessen the state's burden of proof" because that charge contained references to "moral certainty." Defendant argues that as a result of the charge, his right to due process of law was violated. A recent United States Supreme Court decision addressed that issue. Victor v. Nebraska, ___ U.S. ___, 114 S. Ct. 1239, 127 L. Ed.2d 583 (1994) involved two consolidated murder cases from California and Nebraska (Victor v. Nebraska and Sandoval v. California), where the respective state Supreme Courts had affirmed the defendants convictions and death sentences. Victor v. Nebraska, supra, ___ U.S. ___, 114 S. Ct. 1244, 49, 127 L. Ed 2d ___, (1994). The jury in both cases was given a reasonable doubt charge which contained references to moral certainty.
Ibid. Both defendants appealed to the Supreme Court based on
the moral certainty charge. The United States Supreme Court
rejected each defendant's claim and affirmed each defendant's
conviction and death sentence. Victor, supra, ___ U.S. at ___,
114 S. Ct. at 1251, 127 L. Ed.
2d at 601.
Defendant Kittrell's charge below was very similar to
Sandoval's charge in Victor. The United States Supreme Court
held that Sandoval's charge was not unconstitutional and as a
result he suffered no due process violations.
The same instructions that the Supreme Court found
reinforced the conclusion that the Sandoval charge "correctly
pointed the jurors attention to the facts of the case before
them, not to the ethics or morality of Sandoval's criminal acts,"
were present in Kittrell's jury charge. The trial court's charge
below, like Sandoval's charge, specifically stated to the jury
that to meet the requirements of beyond a reasonable doubt, they
had to have "an abiding conviction toward a moral certainty of
the truth of the charges," that were lodged against defendant,
Kittrell. The trial court thus injected content into the moral
certainty term and impressed upon the jury the need to reach the
subjective state of near certitude required by the beyond a
reasonable doubt standard. The trial court below instructed the
jury that, to find guilt beyond a reasonable doubt, they "would
have to have an abiding conviction after evaluating the facts and
evidence in the case. . . toward a moral certainty of the truth
of the charges." The charge further told the jury that they
could not find doubt based on "guesswork," "speculation," or
"possibil[ity]." Moreover, the charge instructed that "doubt may
not arise solely from sympathy [for the defendant]." Those
qualifying phrases, like the phrases relied upon by the Supreme
Court in Victor, ensured that the jury below understood that
moral certainty was not to be disassociated from the evidence in
the case.
Despite the charge's references to moral certainty,
defendant's charge was not unconstitutional. Defendant suffered
no due process violations and his conviction is affirmed.
N.J.S.A. 2C:35-4, "Maintaining or operating a drug production facility" contains all of the material elements necessary to convey the legislature's intent. The statute itself and the Legislative commentary accompanying the provision, indicate that the Legislature intended to criminalize the production, for distribution of controlled dangerous substances in any premises. Furthermore, the definition of "manufacturing," N.J.S.A. 2C:35-2 includes the "packaging or repackaging" of CDS. Judicial construction is unnecessary in this case.
Despite overlapping with the distributing statute, the application of N.J.S.A. 2C:35-4 to defendant is not unconstitutionally vague. Based on a review of the evidence and applying the facilities statute as written, there is sufficient
evidence to convict defendant under N.J.S.A. 2C:35-4. Finally,
defendant's claim that the reasonable doubt charge was
unconstitutional because of the references to "moral certainty"
is without merit.
Accordingly, we affirm the judgment of the Appellate
Division.
JUSTICES POLLOCK, O'HERN and COLEMAN join in JUSTICE
GARIBALDI's opinion. JUSTICE STEIN filed a separate dissenting
opinion in which JUSTICE HANDLER joins. CHIEF JUSTICE WILENTZ
did not participate.
SUPREME COURT OF NEW JERSEY
A-
107 September Term l995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HARRY KITTRELL,
Defendant-Appellant.
STEIN, J., dissenting.
Under the Comprehensive Drug Reform Act, L. 1987, c. 106
(codified at N.J.S.A. 2C:35-1 to -23) (Drug Reform Act), any
person who repackages drugs for redistribution is subject to
prosecution for "manufacturing" a controlled dangerous substance
under one of two sections. The first, N.J.S.A. 2C:35-5, imposes
criminal liability for simple manufacturing. The degree of the
offense depends on the amount and type of drug involved. The
other section, N.J.S.A. 2C:35-4 (the facilities law), establishes
the first-degree crime of maintaining or operating a facility
used for the manufacture of a controlled dangerous substance.
Defendant was arrested in possession of approximately an
eighth of an ounce of cocaine and a fraction of an ounce of
marijuana. Repackaging that amount of drugs constitutes third-degree manufacturing under N.J.S.A. 2C:35-5a(1), b(3), which
would have exposed defendant to a three- to five-year sentence or
to an extended term of five to ten years. However, based
primarily on a friend's statement that defendant "buys it in New
York and cuts it up in my apartment," defendant was indicted
under N.J.S.A. 2C:35-4 for operating a drug manufacturing
facility. On marginal evidence, and pursuant to an instruction
that imposed no requirement of continuity to support a conviction
for maintenance or operation of a manufacturing facility, the
jury convicted defendant of the first-degree offense. Defendant
was sentenced to a sixty-year term with thirty years parole
ineligibility. The Appellate Division affirmed the conviction,
but remanded for re-sentencing, although defendant remains
subject to an extended-term sentence of twenty years to life,
with a fifty-year presumptive term and parole disqualification
for one-third to one-half of the eventual sentence.
This Court affirms the conviction. I would reverse, because
in my view the evidence is insufficient to support the conviction
and the trial court's failure to instruct the jury on a
requirement of continuity in applying the statute constitutes
plain error. Moreover, the Court's affirmance of the first-degree conviction on this shaky record will encourage prosecutors
to use the facilities law selectively and arbitrarily to target
disfavored drug defendants.
On September 14th and 15th, 1991, Hackensack police observed
defendant engage in two apparent drug transactions in which he
removed material from a ledge under an air conditioner protruding
from apartment A-1 in a building known as 69 Railroad Avenue.
Police apprehended defendant, and removed four small bags from
beneath the air conditioner containing a total of .10 grams of
cocaine. The police then executed a search warrant for apartment
A-1 and found an eyeglass holder containing vials and bags of
cocaine above the bathroom medicine cabinet. The aggregate
amount of cocaine recovered from the eyeglass holder and beneath
the air conditioner was 3.83 grams, or slightly more than one-eighth of an ounce. One bag of marijuana containing .53 grams
(about one-fiftieth of an ounce) also was confiscated.
Defendant was indicted on two counts of possession, N.J.S.A.
2C:35-10a(1), and two counts of possession with intent to
distribute, N.J.S.A. 2C:35-5a(1) and 5b(3). Because less than
one-half of an ounce of cocaine was involved, those were third-degree crimes carrying sentences of three to five years.
However, defendant was eligible for an extended-term sentence due
to prior drug-related convictions. See N.J.S.A. 2C:43-6f. The
trial court imposed concurrent sentences of eight years with four
years parole ineligibility on both counts of possession and both
counts of possession with intent to distribute.
Based primarily on a statement given to police by Albertina Brown, the tenant of apartment A-1, that defendant "buys it in New York and cuts it up in my apartment," the Bergen County Prosecutor also sought and obtained an indictment of defendant on one count of "Maintaining or operating a controlled dangerous substance production facility," N.J.S.A. 2C:35-4, a first-degree offense. The Prosecutor's office did not seek an indictment for manufacturing a controlled dangerous substance, N.