In State v. Kalil Cooper (A-35-22/087742) (Decided March 27, 2024), the Supreme Court of New Jersey held that the statute criminalizing the promotion of organized street crime (N.J.S.A. 2C:33-30) does not contain within it, as a predicate offense, the crime of conspiracy to distribute a controlled dangerous substance (CDS). Accordingly, the Defendant’s conviction for a crime that does not exist must be vacated.
Facts of State v. Cooper
Defendant Kalil Cooper as arrested following a wiretap investigation into the activities of a local gang. Defendant was individually charged with twelve separate counts, including two counts of racketeering and conspiracy to commit racketeering, in violation of N.J.S.A. 2C:41-1, and one count of promoting organized street crime in violation of N.J.S.A. 2C:33-30 (count four).
The promoting count charged that defendant “purposefully conspire[d] with others . . . to commit a continuing series of crimes which constitute a pattern of racketeering activity under the provisions of N.J.S.A. 2C:4l-l, contrary to the provisions of N.J.S.A. 2C:33-30.”
During the jury charge conference, the Defendant objected to count four of the indictment, arguing that N.J.S.A. 2C:41-1’s “pattern of racketeering activity,” was not a predicate offense of N.J.S.A. 2C:33-30. The trial court agreed, but instead of striking that count, it amended the indictment by incorporating offenses relevant to the racketeering charge as predicate offenses to count four’s promoting charge.
The trial court reasoned that the Defendant was on notice of those offenses based on their inclusion elsewhere in the indictment and that these offenses were also predicate offenses of the promoting statute. Thus, as to count four, the trial court instructed the jury in part that the State must prove “[t]hat the purpose of the conspiracy was to commit the crime of conspiracy to commit murder and/or aggravated assault and/or conspiracy to distribute a controlled dangerous substance.” (emphases added).
The jury returned guilty verdicts on four counts, including the promoting charge. According to the verdict sheet, the jury found the Defendant guilty of conspiracy to distribute CDS as the predicate offense of promoting. At sentencing, he unsuccessfully renewed his challenge to count four and the jury charge. The Appellate Division affirmed.
NJ Supreme Court’s Decision in State v. Cooper
The New Jersey Supreme Court unanimously reversed. “Conspiracy to distribute CDS is not an enumerated predicate offense of the promoting statute, N.J.S.A. 2C:33-30. We therefore reverse the Appellate Division’s judgment and vacate defendant’s conviction on count four,” Justice Michael Noriega wrote.
In reaching its decision, the New Jersey Supreme Court emphasized that to prove “promoting,” the State must prove beyond a reasonable doubt the accused conspired to commit at least one offense on the statute’s specific list of predicate offenses. It went on to further note that the substantive offense of conspiracy pursuant to N.J.S.A. 2C:5-2 is “conspicuously absent” from that list.
“The offense of conspiracy is not listed as a predicate offense itself, nor is it specified within any of the enumerated chapters as a predicate offense of the promoting statute,” Justice Noriega wrote. “The jury instruction in this case thus erroneously departed from the list of permissible predicate offenses in N.J.S.A. 2C:33-30(a).”
The New Jersey Supreme Court rejected the State’s argument that the additional “conspiracy” language was merely superfluous and did not amplify the meaning of the charge or the jury instruction. As Justice Noriega explained, “One of the foundations of our jury system is the presumption that jurors listen to and are guided by the court’s instructions as they judge the facts of a case to determine guilt.”
In this case, the court’s words — that the State must prove “[t]hat the purpose of the conspiracy was to commit the crime of conspiracy to commit murder and/or aggravated assault and/or conspiracy to distribute a controlled dangerous substance” (emphases added) — erroneously opened to the jury the possibility of convicting defendant for conspiracy to conspire to distribute CDS, a crime that does not exist because conspiracy to distribute CDS is not a predicate offense under the promoting statute.
The New Jersey Supreme Court further held that the error was not harmless. As the jury’s verdict sheet plainly reveals, the Defendant was convicted and sentenced based upon a charge that does not exist within our criminal code. “Such a result is not harmless, but rather unjust,” Justice Noriega wrote.
“The jury abided by its oath and discharged its responsibility faithfully by finding defendant guilty of conspiring as a financier, organizer, supervisor, or manager, to enter a conspiracy to distribute CDS, based on the jury instructions provided. But, because no such crime exists, the jury’s verdict, premised upon the instructions provided by the trial court, is legally invalid. This, we find, is a manifest injustice. Defendant’s sentence cannot be based upon a nonexistent crime.”