(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).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Petrella's opinion below.)
Argued March 30, 1999 -- Decided May 17, 1999
PER CURIAM
The issue raised in this appeal is whether the trial court's charge to the jury on employing a juvenile
in a drug distribution scheme was adequate.
Kevin Pleasant was tried under a six-count indictment and unanimously found guilty of conspiracy to
possess a controlled dangerous substance (CDS) (marijuana) (N.J.S.A. 2C:35-2); possession of a handgun
without a permit (N.J.S.A. 2c:39-5b); and employing a juvenile in a drug distribution scheme (N.J.S.A. 2C:35-6). The jury was unable to reach a verdict on counts charging Pleasant with possession of CDS (N.J.S.A.
2C:35-10(a)3); possession of CDS with intent to distribute (N.J.S.A. 2C:35-5(b)11); and distribution of CDS
to Rajhon Foushee (N.J.S.A. 2C:35-5(b)12).
N.J.S.A. 2C:35-6, employing a juvenile in a drug distribution scheme, provides in pertinent part, that
any person over age 18 who knowingly uses, solicits, directs, hires or employs a person 17 years of age or
under to violate subsection a of N.J.S.A. 2C:35-5(a) is guilty of a crime of the second degree and shall be
sentenced to a prison term of not less than five years during which the defendant will be ineligible for
parole. N.J.S.A. 2C:35-5(a) deals with possession of CDS with intent to distribute and encompasses two
alternative types of possession, actual and constructive. It differs from N.J.S.A. 2C:35-10, the simple
possession statute, which applies only to possession for personal use.
The State's and Pleasant's version of the facts leading to Pleasant's arrest and conviction differ
sharply. According to the testimony presented on behalf of the State at trial, Newark police officers on
narcotics surveillance observed unlawful drug activity taking place at about 8:30 p.m. on November 30, 1994,
at 46 Fabyan Place in Newark. Detective Cuccolo testified that he observed a passing of money at the front
of the driveway from one Rajhon Foushee to seventeen-year-old Lejon Bailey. The detective then saw Bailey
pass the money to Pleasant. Pleasant was observed bending down and retrieving a small object from the
ground, giving it to Bailey who then gave the object to Foushee. It later was determined that the object
contained marijuana. Pleasant, Bailey and Foushee were promptly arrested. Officers retrieved a gun,
seventy-eight small bags of marijuana and six large bags of marijuana. The officers did not believe that these
drugs were for personal use.
Pleasant contended at trial that he had driven to Fabyan Drive with his brother to purchase
marijuana for personal use only. Pleasant denied any involvement in any sale of marijuana and denied
possession of the bags of drugs found by the police next to his person. Four defense witnesses testified at
trial to a version similar to Pleasant's. Foushee testified that he went to Fabyan Place, a well-known drug
source, to buy drugs for personal use and that he did not know either Pleasant or Bailey.
At the conclusion of trial, the judge declined to give the following jury instruction requested by
Pleasant's attorney: "[i]f you find that Kevin Pleasant knowingly used, solicited, directed, hired or employed
R.B. to simply or just possess marijuana with no intent to manufacture, distribute or dispense marijuana, he
cannot be found guilty of Count Five."
Pleasant was sentenced to a mandatory five-year prison term, five years without eligibility for parole,
for his conviction of employing a juvenile in a drug distribution scheme. Pleasant received concurrent three-year prison terms for the convictions of conspiracy and possession of a weapon.
Pleasant appealed his convictions to the Appellate Division arguing that 1) the trial court failed to
adequately instruct the jury regarding employing a juvenile in a drug distribution scheme, and 2) the jury's
verdict on the remaining counts precluded a conviction on the count charging him with employing a juvenile
in a drug distribution scheme as a matter of law, requiring a dismissal of the conviction and the sentence
imposed.
A majority of the Appellate Division affirmed, finding that any error in the jury charge was
harmless. The panel noted that the trial judge essentially charged the jury in the language of Model Jury
Charges (Criminal) 2C:35-2; 2C:35-5; and 2C:35-6. In charging on conspiracy, the judge instructed the jury
that to find conspiracy, it had to find that Pleasant conspired to both possess marijuana and possess with
intent to distribute. The judge emphasized that more than simple possession was required. Moreover, there
was nothing to indicate that the jury was confused or did not understand the judge's instructions. According
to the majority, the charge as delivered included accurate statements of the law, particularly when read as a
whole and viewed in its entirety. The charge was sufficiently clear and unambiguous and did not have the
capacity to mislead the jury.
As to Pleasant's inconsistent verdict argument, the majority concluded that it is a non-issue because
the jury never reached a verdict on the other counts of the indictment. The panel found it conceivable that
the jury reached its verdict on the employment of a juvenile charge and then for some reason- "mistake,
compromise or lenity"- was unable to agree and reach any verdict on the other charges. The majority
concluded that the guilty verdict is supported by sufficient credible evidence in the record, independent of the
jury's determination of insufficiency of evidence on other counts.
One judge dissented, concluding the jury instruction on the employing juvenile in a drug distribution
scheme was inadequate, requiring a reversal of Pleasant's conviction on that charge. According to the
dissent, guilt or innocence under the employment of a juvenile count hinged on whether the jury believed
that Bailey possessed the marijuana with intent to distribute or just for personal use; therefore, a clear and
unequivocal charge to the jury was imperative. The trial court's charge was neither clear or unequivocal.
Rather, the instruction delivered contained ambiguous language that may well have misled or confused the
jury. It provided no concrete guidance for the jury to apply the legal propositions recited by the court. The
instruction requested by the defense, but rejected by the court for no reasonable basis, was essential to
eliminating the flaws in the court's charge.
HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the
majority opinion below. The jury instruction concerning the offense of employing a juvenile in a
drug distribution scheme, N.J.S.A. 2C:35-6, did not constitute reversible error.
1. Although the Court agrees with the majority's findings that the charge was adequate, it also agrees with
the dissenting member's observation that N.J.S.A. 2C:35-5(a), one of the statutes on which a violation of
N.J.S.A. 2C:35-6 may be based, is potentially ambiguous. Accordingly, the trial court's granting of the
defense request for a clarifying instruction would have been preferable. Moreover, because of the sharp
contrast between the State's and Pleasant's version of the facts, an instruction that integrated the contrasting
factual versions of the critical events into the court's explanation of the law would have aided the jury in its
deliberations. (pp. 1-2)
2. The trial court made it clear that purchasing CDS, without an intent to distribute, would not be sufficient
to support a conviction on the employing a juvenile charge. Thus, when viewed in its entirety, the trial
court's charge adequately and accurately informed the jury of the relevant law. (p. 2)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN
and COLEMAN join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
48 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN PLEASANT,
Defendant-Appellant.
Argued March 30, 1999 -- Decided May 17, 1999
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
313 N.J. Super. 325 (1998).
Mordecai D. Garelick, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for respondent
(Peter Verniero, Attorney General of New
Jersey, attorney).
PER CURIAM
We affirm the judgment of the Appellate Division
substantially for the reasons expressed in the majority opinion
below.
313 N.J. Super. 325. We conclude that the jury
instruction concerning the offense of employing a juvenile in a
drug distribution scheme, N.J.S.A. 2C:35-6, did not constitute
reversible error.
Although we are in accord with the majority's finding that
the jury charge was adequate, we agree with the dissenting
member's observation that N.J.S.A. 2C:35-5(a), one of the
statutes on which a violation of N.J.S.A. 2C:35-6 may be
predicated, is potentially ambiguous. 313 N.J. Super. at 343
(Lesemann, J., dissenting). Accordingly, for the trial court to
have granted defendant's request for a clarifying instruction
would have been preferable. Moreover, because of the sharp
conflict between the State's and defendant's version of the
facts, an instruction that integrated the contrasting factual
versions of the critical events into the court's explanation of
the law would have assisted the jury in its deliberations. See
State v. Concepcion,
111 N.J. 373, 379 (1988) (noting that in
appropriate circumstances trial court should “mold the
instruction in a manner that explains the law to the jury in the
context of the material facts of the case”).
Nonetheless, we are constrained to examine the charge in its
entirety. State v. LaBrutto,
114 N.J. 187, 204 (1989). Because
the trial court made it clear that purchasing a controlled
dangerous substance, without an intent to distribute, would not
be sufficient to support defendant's conviction on the charge of
employing a juvenile in a drug distribution scheme, we are
satisfied that the jury instruction, when viewed in its entirety,
accurately and adequately informed the jury of the relevant law.
We affirm the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK,
O'HERN,GARIBALDI, STEIN, and COLEMAN join in this PER CURIAM
opinion.
NO. A-48 SEPTEMBER TERM 1998
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN PLEASANT,
Defendant-Appellant.
DECIDED May 17, 1999
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
CONCURRING/DISSENTING OPINION BY