DOCKET NO.
A-3660-08T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
State v. Smart
Decided Jun 7, 2013
DOCKET NO. A-3660-08T4
06-07-2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
v. MICHAEL SMART, Defendant-Appellant.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant (Joseph
E. Krakora, Public Defender, attorney; Mr. Smith,
Jr., on the brief). Daniel I. Bornstein, Deputy
Attorney General, argued the cause for respondent
(Jeffrey S. Chiesa, Attorney General, attorney; Mr.
Bornstein, on the brief).
PER CURIAM
NOT FOR PUBLICATION
WITHOUT THE
APPROVAL OF THE APPELLATE
DIVISION
Before Judges Sabatino, Fasciale and Maven.
On appeal form the Superior Court of New Jersey,
Law Division, Mercer County, Indictment Nos.
07-06-0061 and 08-10-0259.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant (Joseph
E. Krakora, Public Defender, attorney; Mr. Smith,
Jr., on the brief).
Daniel I. Bornstein, Deputy Attorney General,
argued the cause for respondent (Jeffrey S. Chiesa,
Attorney General, attorney; Mr. Bornstein, on the
brief). PER CURIAM
Defendant appeals from his convictions for first-
degree racketeering, N.J.S.A. 2C:5-2, 2C:41-2c,
and -2d; first-degree conspiracy to commit murder
of A.P., N.J.S.A. 2C:5-2, 2C:11-3a(1), and -3a(2);
2 third-degree conspiracy to distribute *2 cocaine,
N.J.S.A. 2C:5-2, 2C:35-5a(1), and 5b(2); first-
degree attempted murder of A.C., N.J.S.A. 2C:2-
6, 2C:5-1, and 2C:11-3; second-degree possession
of a weapon (handgun) for an unlawful purpose,
N.J.S.A. 2C:39-4a; third-degree unlawful
possession of a weapon (handgun), N.J.S.A.
2C:39-5b; and fourth-degree resisting arrest,
N.J.S.A. 2C:29-2a.1 We affirm.
1 The jury acquitted defendant of third-
degree possession of a prohibited weapon
(hollow-point bullet). The jury was unable
to reach a verdict on third-degree
aggravated assault, N.J.S.A. 2C:12-1b(9),
and the court subsequently granted the
State's motion for dismissal of that charge.
The New Jersey State Police (NJSP) investigated
gang-related activity involving acts of violence,
drugs, and weapons offenses. The investigation
focused on gang leadership in New Jersey and
included wiretaps of thousands of calls. The
investigation led to the discovery of defendant and
his involvement in these crimes. We discern the
following facts from the evidence adduced at trial.
Detective Thomas James DeVirgiliis, an officer
with the NJSP Street Gangs Central Unit, testified
as an expert regarding the Nine Trey Gangster
(NTG) set2 of the Bloods street gang. He
explained that the NTG set of the Bloods "formed
on Rikers Island in July of 1993" when black
3 inmates "banded together to *3 fight back against
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 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
Hispanic gangs" under an umbrella organization
known as the United Blood Nation. When the
inmates were released from prison, they returned
to their homes in the New York/New Jersey area
and began recruiting other members.
2 DeVirgiliis testified that when the United
Blood Nation formed, it had eight different
sets under that umbrella.
According to the detective's expert testimony, the
NTG's leadership is loosely based on a military
chain of command. The "supreme commander,"
who is known as the godfather, establishes all
"orders, rules [and] regulations." Under the
godfather is the double original gangster (DOG),
the original gangster (OG), and "a capo or a
five[-]star, capo or captain." These "intermediate
management ranks . . . disseminate [the] orders
from the godfather down to the lower" ranks.
Below the capo is "a four[-]star lieutenant, and
then a three[-]star . . . sergeant." Below the
sergeant are "soldiers." Lieutenants and solders
"see [to] the daily . . . street level operations of the
Bloods set." The soldiers' "main purpose is to
commit the crime, or do the drug distribution, or"
anything else they are ordered to do.
The NTGs have thirty-one rules and regulations,
and are required to carry out any orders from the
highest-ranking member. Members also swear to
follow gang rules and regulations, "live their life
as a gangster, and . . . do what it takes to oppress
5 which continued for about three months until *5
4 [their] enemies." They vow to kill or *4 physically
assault someone if ordered to do so. A former
NTG, who was an active member at the time and
cooperating with law enforcement, explained what
it meant to be a Blood:
[W]e all about[] violence. Violence inflicts
fear. Fear inflicts control and we loved
that, you know. Keep people in check,
control the neighborhood, control
everything. So the violence was like
second nature. If you ain't violent, you
won't be a Blood. It's not a type of
organization where if you told them you
wanted to go get a college degree or you
want to sit home and take care of your
children it's going to be accepted. No. It's
all about the violence that comes with it.
You have to be able to stand strong and go
out there at a drop of a dime and shoot
someone, kill someone at a drop of a dime,
it can't even be a second thought. Because,
when you do think, it shows . . . fear, and
you're not supposed to show fear or
hesitation.
The sets often fight over infractions such as selling
drugs on another set's turf.
DeVirgiliis explained that the present investigation
initially focused on Trenton because the police had
received information "that [a particular NTG
member] was running the set state-wide from his
jail cell [in Trenton State Prison] through the use
of a wireless telephone facility." The police then
extended their investigation to that area. In early
2006, they began tracking phone conversations of
the NTG's DOG and one of its OGs (the "OG")
the investigation concluded on July 26, 2006.
The investigators arrested defendant on May 17,
2006, in Atlantic City. "He was initially being
intercepted on . . . [the OG's] telephone," and was
one of the OG's subordinates. Defendant went by
the alias "Torch," and he had several gang-related
tattoos.
Daniel Bergin, a detective in the NJSP's street
gang north unit, oversaw wiretaps and physical
surveillance in the northern portion of the state for
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 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)

the investigation. He testified that "thousands On the following evening, May 4, 2006, detective
upon thousands of calls" were intercepted across Harold Wallace of the Irvington Police
the state. Department responded to a shooting near the
Garden Apartments on Crescent Lane in Irvington.
On April 26, 2006, investigators intercepted a call
Wallace explained that the area where the shooting
between defendant and the OG, during which they
7 *7 occurred was "primarily Crip" (referring to the
discussed a drug transaction and a dispute with a
Crips, another rival gang). When Wallace arrived,
rival Bloods set. On May 4, 2006, defendant
the victim, A.C., was being treated by emergency
called the OG regarding another drug transaction.
personnel. A.C. had "multiple gunshot wounds" to
In early May 2006, investigators became aware his abdomen and legs, but he survived.
that the OG was planning an assault "[a]round
Wallace determined that the shooting occurred on
20th Street in Newark." The OG "controlled the
the north side of the apartment complex, no more
narcotics market in that area." On May 3, the OG
than 150 or 200 yards from where A.C. was
learned that a man identified as "Black" was
found. Defendant stipulated that a blue and white
selling drugs in the neighborhood, and that other
Yankees baseball cap belonging to A.C. was found
gang members would "shoot him." Black was a
where the shooting occurred, but no shell casings
6 member of the Brick City Brim set of Bloods. *6
were recovered. The police ultimately learned that
An employee of a local business testified that drug a possible suspect went by the street name "Red,"
sales and associated assaults often occurred near who Wallace's partner later identified as
that business. On May 3, 2006, the employee defendant.
observed five black men begin arguing nearby.
Around 4:00 p.m. on May 4, 2006, defendant
She fled into a nearby garage and heard "pop, pop,
visited a tenant who had lived in the apartments.
pop," and called the police. The employee located
Sometime after seven, the tenant saw A.C.,
one of the men hiding behind a dumpster bleeding
defendant, and "a lot of other people" walk away
profusely from his hand, and she attempted to
to the left of her building toward Union Avenue.
administer first aid. Police later identified the
Around half an hour later, the tenant heard two or
injured man as C.E., who informed police that "he
three gunshots. She ran inside after the first shot,
was trying to escape his assailants[,] and he tried
and stayed inside for about five minutes. When
to climb over a fence that had barbed wire on it."
she went back outside, she saw A.C. "collapsed on
Moments after the shots were fired, investigators the ground," holding his stomach. The next day,
intercepted a call from the OG to defendant the police showed her a photograph of defendant,
wherein the OG was yelling and asking where who she identified as Red.
everyone was. On a subsequent call, the OG stated
At approximately 8:30 p.m. on May 4, 2006,
that "they had done what they intended to do," and
8 investigators *8 intercepted a call from the OG to
a later call showed the OG and defendant
defendant, during which defendant said, "I gotta
attempting to coordinate their locations following
go OT, man." Bergin explained that "OT" meant
the shooting.
"out of town." Defendant told the OG he had to
The OG also received a call from a member of the meet with him in person to explain the reason,
Atlantic City NTG set. The OG also told an which Bergin interpreted as meaning "something
unidentified male that "Torch" did not remember a serious" occurred. Defendant told the OG that he
firearm jamming during the shooting. was on 21st Street, which is near the Crescent
Lane Housing Development.

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 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
About two minutes later, the OG indicated that he
was going to get defendant. He stated, "He got to
go OT, so go find out what's going on. He done
did a solid." Bergin explained that the OG
believed defendant had "done something
significant on behalf of the [NTG] set." Almost an
hour later, defendant was waiting for the OG.
According to Bergin, the OG decided to relocate
defendant because defendant had shot a Crip.
Between May 7 and May 17, 2006, defendant was
in Atlantic City. The former NTG member, who
was also a four-star lieutenant at the time, was
responsible for defendant during that time period.
Defendant provided updates "as to the occurrences
happening down in . . . Atlantic City specifically
with the [NTG s]et, instances with personnel
issues, normal everyday Bloods-related business."
Defendant then started running things in Atlantic
City.
The OG directed defendant to take control of the
9 operations *9 in Atlantic City. While in Atlantic
City, defendant informed the OG of a problem
with A.P., who had bypassed the chain of
command within the set and gone directly to the
godfather, which is a serious violation. The OG
instructed defendant to "beat [A.P.] severely
enough to put him in the hospital."
On May 16, defendant told the OG that the
Atlantic City NTGs were "having issues with their
finances." The OG instructed that members who
did not pay their dues "gonna get their ass[es]
whooped" and "get disciplined." Defendant
responded that he was "on that" and had his
"discipline chain ready." The OG referred to the
non-dues-paying members as "food," meaning
they were "subject to be the victim of some form
of violence, ranging . . . from a physical assault up
to and including" death "for violation of the rules,
for some form of disrespect." Bergin explained
that "if you're labeled 'food,' it is a very serious
term."
On May 17, 2006, the OG learned that A.P. was
switching sets. Bergin explained that "[w]hen you
take your oath, . . . you're making it to that
particular set, to that organization, to that
hierarchy. And to switch sets would be
disrespectful, and it is a violation of the rules." It
is viewed as "one of the most serious violations
that somebody can commit."
During phone conversations on the evening of
10 May 17, *10 defendant asked the OG if A.P.
should be assaulted or killed. The OG reiterated
that he wanted defendant to break A.P.'s jaw,
which defendant agreed to do. Bergin explained
that defendant was expressing his willingness to
"take it to a higher level" and "increase the
discipline."
The OG ordered defendant to ensure that all of
A.P.'s subordinates attend a meeting, or "bevin,"
that night. Any subordinates who failed to appear
were to be "who that," meaning they were to be
killed along with A.P. Defendant told the OG that
he would need a clean vehicle and a firearm. He
said, "It's all like, you already know, like it's
already over for the kid. . . . I ain't got nothing to
lose." Bergin interpreted this to mean that "in light
of some of the other occurrences that have
recently happened in his life, [defendant] has
nothing to lose." The OG directed that they "get
with . . . Four-Star [for] setting up [the] execution.
You all start setting up the execution." Bergin
explained that the OG was ordering defendant to
set up A.P.'s execution.
After defendant gave the order to "assault and
murder" A.P., he briefly left the area to search for
a car to steal for use in finding A.P. Upon
returning with the weapons, police units
"respond[ed] to the area under the guise of a noise
complaint," and took defendant and the other gang
11 members into *11 custody. Defendant had been
holding a gun, which he dropped after the police
ordered him to do so, and then he ran. Ultimately,
several officers and a police dog apprehended him.
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 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)

Two handguns were found at the scene: a loaded POINT I

.22 caliber automatic and a loaded .38 caliber THE CHARGES AGAINST
revolver. One of the rounds removed from the DEFENDANT MUST BE DISMISSED
revolver was a hollow point bullet, which is BECAUSE THE STATE FAILED TO
prohibited for possession by all but law PROSECUTE DEFENDANT WITHIN
enforcement personnel in New Jersey. Although THE 180-DAY LIMIT OF THE
no fingerprints were found on the weapons, an INTERSTATE AGREEMENT ON
officer recognized the revolver as the gun DETAINERS. THE TRIAL COURT
defendant was holding prior to his attempted ALSO VIOLATED THE TERMS OF THE
escape. IAD BY ENTERING AN ORDER
POSTPONING THE TRIAL DATE
After a multiday trial, the jury convicted defendant
OVER DEFENDANT'S OBJECTION
on several counts of the indictment. On January
WITHOUT HOLDING THE REQUIRED
30, 2009, after the appropriate mergers, the judge
HEARING IN THE PRESENCE OF
sentenced defendant to a term of fifteen years in
DEFENDANT OR HIS ATTORNEY.
prison for first-degree racketeering; a consecutive
(Partially Raised Below).
extended term of forty years for conspiracy to
POINT II
murder and a consecutive term of fifteen years for
THE DEFENDANT'S SIXTH
attempted murder, both subject to the No Early
AMENDMENT RIGHT TO CONFRONT
Release Act (NERA), N.J.S.A. 2C:43-7.2;
THE WITNESSES AGAINST HIM WAS
concurrent terms of four years for conspiracy to
VIOLATED BY A DETECTIVE'S
distribute cocaine; and nine months for resisting
TESTIMONY THAT "WITNESSES IN
arrest. The court ordered that defendant's
THE AREA" HAD INDICATED THAT
aggregate sentence would run consecutively to his
HE WAS "A POSSIBLE SUSPECT" IN
previously imposed federal term. This appeal
THE [A.C.] SHOOTING. (Not Raised
followed.
Below).
On appeal, defendant raises the following points: POINT III
12 *12 IN THIS CASE, WHERE A GREAT
DEAL OF EVIDENCE HAD BEEN
PRESENTED ABOUT THE CRIMINAL
ACTIVITIES AND THE VIOLENT
TENDENCIES OF THE NINE TRE
BLOODS, THE TRIAL COURT'S
FAILURE TO GIVE A RULE 404(b)
LIMITING INSTRUCITON WAS PLAIN
ERROR. (Not Raised Below).
POINT IV
THE DEFENDANT'S SIXTH
AMENDMENT RIGHTS TO AN
IMPARTIAL JURY AND TO BE
PRESENT AT HIS OWN TRIAL WERE
VIOLATED WHEN THE JUDGE, IN AN
OFF-THE-RECORD TELEPHONE
CALL, FAILED TO EXCUSE A JUROR
WHO "EXPRESSED SOME CONCERN

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 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)

FOR HIS SAFETY." (Not Raised Below). determinations." Ibid. (quoting 18 U.S.C.A. app.
POINT V 2, § 2, art. I; N.J.S.A. 2A:159A-1). Pursuant to
THE TRIAL COURT SHOULD HAVE N.J.S.A. 2A:159A-3(a):
ENTERED A JUDGMENT OF
Whenever a person has entered upon a
ACQUITTAL ON COUNT FOURTEEN,
term of imprisonment in a penal or
THE ATTEMPTED MURDER OF [A.C.].
correctional institution of a party State,
POINT VI
and whenever during the continuance of
THE JURY CHARGE ON
the term of imprisonment there is pending
RACKETEERING WAS IMPROPER IN
in any other party State any untried
THAT IT COMMINGLED THE CRIMES
indictment,
OF RACKETEERING AND
14 *14 information or complaint on the basis
CONSPIRACY TO COMMIT
of which a detainer has been lodged
RACKETEERING, AND ALLOWED
against the prisoner, he shall be brought to
THE JURY TO FIND
trial within 180 days after he shall have
13 *13 DEFENDANT GUILTY BASED ON
caused to be delivered to the prosecuting
ACTS WHICH DO NOT CONSTITUTE
officer and the appropriate court of the
"RACKETEERING ACTIVITY" UNDER
prosecuting officer's jurisdiction written
THE GOVERNING STATUTE. (Not
notice of the place of his imprisonment
Raised Below).
and his request for a final disposition to be
A. The Jury Instruction
made of the indictment, information[,] or
Commingled The Crimes Of
complaint: provided that for good cause
Racketeering And Conspiracy To
shown in open court, the prisoner or his
Commit Racketeering.
counsel being present, the court having
B. The Jury Was Allowed To
jurisdiction of the matter may grant any
Convict Based Upon "Racketeering
necessary or reasonable continuance. . . .
Acts" Not Set Forth In The
[(Emphasis added).]
Racketeering Statute.
New Jersey courts have interpreted the
continuance provision to permit grant of a
I. continuance, on good cause shown, "at any time
prior to an actual entry of an order dismissing the
We first reject defendant's contention that the State
indictment pursuant to . . . N.J.S.[A.] 2A:159A-
failed to prosecute him within the 180-day limit
5(c)." State v. Lippolis, 107 N.J. Super. 137, 147
imposed by the Interstate Agreement on Detainers
(App. Div. 1969) (Kolovsky, J.A.D., dissenting),
(IAD), N.J.S.A. 2A:159A-1 to - 15. "The federal
rev'd on dissent, 55 N.J. 354 (1970); accord State
government and forty-eight states, including New
v. Miller, 299 N.J. Super. 387, 397 (App. Div.),
Jersey, are signers of the compact." State v. Perry,
certif. denied, 151 N.J. 464 (1997). "[W]hether
__________ N.J. Super. __________,
good cause exists . . . must be resolved from a
__________ (App. Div. 2013) (slip op. at 7). "The
consideration of the totality of circumstances in
IAD's purpose is 'to encourage the expeditious and
[a] particular case." Lippolis, supra, 107 N.J.
orderly disposition of such [outstanding] charges
Super. at 148-49 (Kolovsky, J.A.D., dissenting).
and determinations of the proper status of any and
all detainers based on untried indictments, "[T]he 'necessary or reasonable continuance'
informations[,] or complaints' and to provide provision is, by clear implication, the sole means
'cooperative procedures' for making such by which the prosecution can obtain an extension

6
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
15 of the time limits over the defendant's *15
objection." New York v. Hill, 528 U.S. 110, 116,
120 S. Ct. 659, 665, 145 L. Ed. 2d 560, 567
(2000). The requirement that defendant or his
counsel be present "is directed primarily, if not
indeed exclusively, to prosecution requests that
have not explicitly been agreed to by the defense."
Ibid. This ensures an adequate appellate record,
protects the defendant's right to a speedy trial, and
"guarantee[s] that the State does not extend the
expiration dates arbitrarily or capriciously in
derogation of [the] defendant's rights without his
knowledge and the ability to be heard." Miller,
supra, 299 N.J. Super. at 398.
At the time of his indictment, defendant was
incarcerated in a federal prison in California. On
August 27, 2008, defendant arrived in New Jersey.
By the State's calculation, the 180 day IAD
deadline was due to expire on September 27. On
September 3, 2008, the judge conducted a hearing
and indicated that defendant could "demand a trial
within 180 da[ys] in which case he may not be so
well prepared to go ahead, and it may be to his
detriment." Given the voluminous nature of
discovery, the State expressed concern about
defense counsel's ability to prepare in a short
period of time to meet the September 27 deadline
and warned that they might be "setting
[them]selves up for an appeal."
Defense counsel and the court offered defendant
16 the *16 opportunity to decide whether to delay the
trial. The following discussion occurred:
COURT: And what is it that you want to
do, do you want a trial at the end of
September? The [c]ourt will set it down, or
do you want it to be late October, early
November after you've had an opportunity
to review all of the documents and --
DEFENDANT: I want a trial in September.
COURT: What?
DEFENDANT: In September.
COURT: All right. And you understand
that there's a voluminous amount of
documents?
DEFENDANT: Yes, I understand.
In that same proceeding, the court scheduled the
trial for September 22, 2008. The State then
pointed out that the court could delay the trial date
beyond September 22, 2008 for good cause
shown. The judge responded that it would
"probably adjourn [the trial] about one month,"
and defendant's counsel did not object.
The judge then entered an order dated September
8, 2008, and stated:
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 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
Although discovery in this case is
voluminous - over 7,000 documents,
hundreds of thousands of intercepted
telephone calls, electronic surveillance
logs and transcripts, approximately 100
consensual recordings, and taped
interviews of arrested defendants - which,
in the mind of the court, does not allow
sufficient time for
17 *17 counsel to properly prepare, the
defendant personally insists upon a trial to
commence within the 180-day time frame.
In essence, the defendant insists upon
going to trial with an insufficiently
prepared attorney, fully aware that at a
later date he may argue the ineffective
assistance of counsel at a post conviction
relief proceeding. He is, in effect, inviting
the court to deny him a fair trial. Faced
with the possibility of having to try the
case twice, the State . . . moved for
continuance of the trial date.
Thus, in accordance with N.J.S.A. 2A:159A-3(a),
which permits courts to grant "any necessary or
reasonable continuance," the court rescheduled the
trial for October 14, 2008. The court reasoned that
its calendar contained fifty-six matters for the
weeks of September 22 and 29, 2008, and the
judge had a scheduled vacation planned for the
week of October 6. Moreover, "the court [had] the
obligation to insure a fair trial, which include[d]
giving defense counsel adequate time to prepare."
Thus, "[c]ommencement of trial on September 22,
2008, as demanded by the defendant, would
disturb a heavily scheduled court week, cause a
one-week hiatus in the trial to allow for the court's
vacation, and deny defense counsel adequate time
to prepare for trial." In fact, on October 1, 2008,
defense counsel applied for a continuance "based
on the voluminous discovery" in the case. He
explained that, "[a]s this case moves forward . . . it
18 is clear to me, after having spent *18 several days
reading the transcripts of the Grand Jury, that
providing an effective defense . . . beginning
October 14, 2008[,] is simply not possible."
Counsel noted that his client was facing a life
sentence if convicted, and insisted that he could
not "effectively assist him under the . . . time
constraints." Thus, counsel requested an
adjournment of at least sixty days. The court then
granted defendant's request for an adjournment
and scheduled the trial for January 5, 2009.
Here, "appellate review of the reasons for the
continuance is not hampered because the record
clearly supports and demonstrates the need for the
continuance." Miller, supra, 299 N.J. Super. at
399. There is no evidence that the continuance
was required due to the State's error or intentional
delay. Rather, the primary concern here was
whether defendant would be prejudiced by a trial
date that did not provide his counsel adequate
preparation time. Of legitimate secondary concern
was the court's vacation schedule and crowded
calendar. See State v. Mason, 90 N.J. Super. 464,
474 (App. Div. 1966) (stating that "[t]he
intervening court vacation and the crowded
condition of the trial calendars may possibly have
warranted a discretionary continuance of trial
beyond the 180 days"). Thus, the totality of the
circumstances evince good cause for the court's
grant of the continuance. Lippolis, supra, 107 N.J.
19 Super. at 148-49 *19 (Kolovsky, J.A.D.,
dissenting).
The propriety of the first continuance is further
supported by defense counsel's subsequent request
for a second continuance of at least sixty days. "
[M]any decisions pertaining to the conduct of the
trial," including scheduling matters, are within
counsel's authority to manage without assent from
his or her client. Hill, supra, 528 U.S. at 114-15,
120 S. Ct. at 664, 145 L. Ed. 2d at 566-67. Thus,
where defense counsel agrees to a continuance,
defendants are deemed to have waived their
speedy trial rights under the IAD. See id. at 118,
120 S. Ct. at 666, 145 L. Ed. 2d at 569. Permitting
defendants to later seek dismissal with prejudice
on the basis of the delay "would enable [them] to
escape justice by willingly accepting treatment
8
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
inconsistent with the IAD's time limits, and then
recanting later on." Ibid. Moreover, even though
defendant's continuance request occurred after
expiration of the 180-day period, the fact that it
occurred at all "plainly indicates that defendant
was not prepared to proceed to trial within the
statutory time period." State v. Buhl, 269 N.J.
Super. 344, 355-57 (App. Div.), certif. denied, 135
N.J. 468 (1994). Thus, his "'request[] to be treated
in a manner contrary to [the IAD]'" constituted
waiver of his right to have trial commence within
the statutory period. Id. at 357 (quoting United
20 States v. *20 Eaddy, 595 F.2d 341, 344 (6th Cir.
1979)).
II.
Defendant argues for the first time on appeal that
the judge violated his Sixth Amendment rights to
an impartial jury by conducting an off-the-record
phone call with a juror who allegedly expressed
concerns for his safety. Because defendant failed
to object at the time of trial, this argument is
reviewed for plain error. R. 2:10-2.
On January 7, 2009, the day after the jury was
selected, but prior to opening statements, the judge
informed counsel that:
[COURT]: [O]ne other thing for the
record. The [c]ourt received a call from a
juror, number eight . . ., this morning, who
expressed some concern for his safety. The
[c]ourt informed [him] that it did not
believe that his safety was an issue in this
case, and informed him that it would be
discussed further at 1:30 this afternoon.
It is the [c]ourt's intention to remind the
jurors that if anyone attempts to contact
them that they are to bring it to the
immediate attention of the sheriff's officers
or to the attention of the [c]ourt. It is the
[c]ourt's intention further to tell the jurors
that there is no particular reason to be
concerned for their safety.
If there is something more that the [c]ourt
should say or something less, I would be
glad to hear from [counsel], but the [c]ourt
does believe that the matter must be
addressed. If [juror number eight]
expressed that concern, other jurors may
21 *21 have a similar concern.
[Prosecutor], anything to add to that?
[PROSECUTOR]: I have nothing to add,
Judge, but I think it might be appropriate,
given the nature of this case, to check
people and identify people who come into
the courtroom so in the event there is —
[COURT]: The [c]ourt will ask . . . the
chief sheriff's officer here[] to have people
identify themselves . . . .
Neither counsel objected nor requested that an
interview of the juror take place. Prior to
commencing trial, the court instructed the jury:
9
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)

The [c]ourt received a communication entire jury. Ibid. Where a tainted juror is excused,
from a juror this morning expressing some the court must decide whether to continue trial or
concerns for safety of jurors, and probably grant a mistrial. Ibid.
because of the nature of the trial. The
Generally, counsel should be present whenever a
[c]ourt can inform you that, as it did
judge "addresse[s] or interact[s] with the jury in
yesterday, if you have a sense that anyone
any manner." State v. Morgan, 423 N.J. Super.
is attempting to contact you, or speak with
453, 458, 468 (App. Div. 2011) (concluding
you about this trial, you're to bring it to the
judge's ex parte communication with deliberating
immediate attention of the [c]ourt or a
23 *23 jury, which was "clearly improper because it
sheriff's officer, and it will be dealt with.
was not conducted in the presence of counsel,
The [c]ourt does not anticipate that that
addressed only innocuous" issues and did not
will happen. The [c]ourt does not have
warrant reversal), certif. granted, 210 N.J. 477
concerns, deep concerns for your safety.
(2012). Rule 1:2-1 requires "that all trials be
You're looking at a judge whose name is in
conducted in open court." Id. at 466. As such,
the phone book, and I've been a judge here
judges should "scrupulously avoid engaging in
[twenty-one] years. So I think that you can
[their] own ex parte and unrecorded
know that safety is not a paramount
communications with the jury." State v. Basit, 37 8
concern. But if you feel that in any way
N.J. Super. 125, 131 (App. Div. 2005). "Where the
anyone has approached you, please bring it
record does not reflect what transpired during the
to the immediate attention of the [c]ourt.
ex parte communication, reversal is necessary
Again, defense counsel did not object or ask to since reviewing courts are unable to determine
22 interview the juror. *22 whether the communication was prejudicial."
Morgan, supra, 423 N.J. Super. at 467. On the
Included within a defendant's right to "trial by an
other hand, "where the presence in the record of
impartial jury," U.S. Const. amends. VI, XIV; N.J.
an adequate description of the ex parte proceeding
Const. art. I, ¶ 10, is "the right to have the jury
may permit a reviewing court to determine that the
decide the case based solely on the evidence
presumption of prejudice has been dispelled,
presented at trial, free from the taint of outside
reversal is not necessarily required." Ibid. (internal
influences and extraneous matters." State v. R.D.,
quotation marks omitted).
169 N.J. 551, 557 (2001). "The securing and
preservation of an impartial jury goes to the very The "presumption of prejudice" is rebutted where
essence of a fair trial." State v. Williams, 93 N.J. "the communication [is] preserved for appellate
39, 60 (1983). review." Id. at 469; see State v. Brown, 275 N.J.
Super. 329, 334 (App. Div. 1994) (holding that the
Where it is possible that a juror has been exposed
record showed that the judge's ex parte
to extraneous information, it is the court's
communication with the jury "had no capacity to
obligation to "act swiftly to overcome any
prejudice defendant" where "the judge's
potential bias and to expose factors impinging on
summarization of [the] communication, given in
the juror's impartiality." R.D., supra, 169 N.J. at
24 open court in front of the jury, *24 counsel[,] and
557-58. The court must determine whether the
also apparently defendant, confirmed that his
juror is capable of remaining impartial and
communication had been thus limited"), certif.
deciding the case based solely on the evidence
denied, 138 N.J. 269 (1994). Prejudice is less
presented at trial. Id. at 558. Thus, the court
likely where the judge's ex parte communication
should interrogate the juror in counsel's presence.
does not include "any supplemental instructions
Ibid. If taint is found, the inquiry expands to the
regarding the applicable law, the facts of the case

10
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
or the jury's responsibilities, but [is] instead
confined to clarification of the jury's prior
questions." Brown, supra, 275 N.J. Super. at 334.
Although the court's ex parte conversation with
juror number eight should have been followed by
voir dire on the record in the presence of counsel,
the court immediately informed counsel on the
record of the subject matter of the conversation,
which "had no capacity to prejudice defendant."3
Id. at 334. The court's summary of the
conversation demonstrated that it was limited to
juror number eight's concern, the court's general
assurance that safety was not an issue, and a
promise to discuss the issue further in open court.
See ibid. The court did not discuss its instructions,
the applicable law, or the facts of the case. See
ibid.
3 It is not clear from the record if counsel
were present in the courthouse when the
judge received the juror's call. Nor does the
record indicate whether another staff
member screened the call before the judge
took the call, or that the judge was aware in
advance why the juror was calling his
chambers.
Moreover, defense counsel neither objected nor
25 requested *25 that the juror be interviewed on the
record. Trial errors which are consented to by
defense counsel rarely give rise to plain error. Ibid.
Thus, although the court's ex parte conversation,
however minimal, with juror number eight should
have occurred in open court, the circumstances of
the case show that the conversation did not have
"a clear capacity to produce an unjust result." Ibid.
(citing R. 2:10-2).
Furthermore, there is no evidence that the juror
was exposed to any sort of extraneous influence.
Rather, the juror expressed a general concern for
his safety, although it was unclear whether his
inquiry was indicative of concern about his ability
to serve. However, the court properly advised the
jury that they were to inform the court or a
27 sheriff's officer immediately if they were
approached or contacted. It is presumed that jurors
follow a court's instructions. State v. Perry, 124
N.J. 128, 166 (1991).
Additionally, there is no evidence that, as
defendant now argues, juror number eight was
deceptive in his voir dire. If anything, the juror's
impartiality was established in his voir dire,
during which he asserted that nothing about the
case would "interfere with [his] impartial
judgment." Juror number eight was, at that time,
aware that the charges alleged against defendant
included racketeering, which resulted from his
26 alleged *26 membership in the NTGs, as well as
murder and other serious crimes, and defendant
did not challenge the juror's inclusion on the jury
pursuant to Rule 1:8-3(b). Therefore, there was no
plain error.
III.
Defendant argues for the first time on appeal that
his Sixth Amendment confrontation right was
violated when Detective Wallace testified about
"witnesses in the area" naming defendant as a
possible suspect in A.C.'s shooting. Because this
issue was not raised below, it is reviewed for plain
error, requiring this court to ask whether the
complained-of testimony was "clearly capable of
producing an unjust result." R. 2:10-2. Where "a
case is fortified by substantial credible evidence,"
it is unlikely that plain error occurred. State v.
Irving, 114 N.J. 427, 448 (1989). The testimony to
which defendant now objects is as follows:
Q: Did you talk to people in the area who
may have been witnesses to that shooting?
A: Yes.
Q: All right. And were these people
cooperative?
A: They were cooperative enough to point
me in directions, but not cooperative
enough to give me names and statements
or anything.
Wallace testified that "witnesses in the area"
informed police *27 of the direction A.C. ran
following the shooting. Wallace explained that he
11
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
and his partner "received information which gave
us a street name of a possible suspect. . . . Red."
(Emphasis added).
"It is well settled that the hearsay rule is not
violated when a police officer explains the reason
he approached a suspect or went to the scene of
the crime by stating that he did so 'upon
information received.'" State v. Bankston, 63 N.J.
263, 268 (1973) (quoting McCormick on Evidence
§ 248 (2d ed. 1972)). This testimony is
permissible "to show that the officer was not
acting in an arbitrary manner or to explain his
subsequent conduct." Ibid. However, if the officer
repeats "what some other person told him
concerning a crime by the accused[,] the testimony
violates the hearsay rule," as well as the
defendant's confrontation right. Id. at 268-69. In
other words, "both the Confrontation Clause and
the hearsay rule are violated when, at trial, a
police officer conveys, directly or by inference,
information from a non-testifying declarant to
incriminate the defendant in the crime charged."
State v. Branch, 182 N.J. 338, 350 (2005)
(emphasis added).
In Branch, a detective testified that, despite a lack
of other physical evidence, he placed the
defendant's photo in an array based on information
28 received. Id. at 346-47. The *28 anonymous
person who provided that information was not
called to testify, and the Court pointed out that no
evidence, other than subsequent identifications
from photo arrays, indicated that the defendant
was a possible suspect. Id. at 347-48. Under the
circumstances, there was no need for the detective
to explain why he placed the defendant's photo in
the array. Id. at 348. "Thus, the jury was left to
speculate that the detective had superior
knowledge through hearsay information
implicating defendant in the crime." Id. at 347-48.
The Court explained that police are permitted to
explain their actions by using the phrase "'based
on information received' . . . only if necessary to
rebut a suggestion that they acted arbitrarily and
only if the use of that phrase does not create an
inference that the defendant has been implicated in
a crime by some unknown person." Id. at 352.
However,
[w]hen a police officer testifies concerning
an identification made by a witness, such
as in this case, what counts is whether the
officer fairly arranged and displayed the
photographic array and whether the
witness made a reliable identification.
Why the officer placed the defendant's
photograph in the array is of no relevance
to the identification process and is highly
prejudicial. For that reason, we disapprove
of a police officer testifying that he placed
a defendant's picture in a photographic
array "upon information received." Even
such seemingly neutral language, by
inference, has the capacity to sweep in
inadmissible hearsay. It implies
29 *29 that the police officer has information
suggestive of the defendant's guilt from
some unknown source.
[Ibid. (citations omitted).]
Because no physical evidence linked the defendant
to the crime scene, and other evidence was "far
from overwhelming," the Court determined that
the case against the defendant was close. Id. at
353. Thus, although no objection was made to the
complained-of testimony at trial, the "detective's
damaging hearsay testimony . . . may have tipped
the scales," and the Court concluded that plain
error occurred requiring reversal of defendant's
convictions. Id. at 354.
Here, Wallace similarly asserted that defendant's
photograph was shown to the tenant and A.C.
based on information received that he was a
"possible suspect" in the shooting. Thus, the
testimony may have caused the jury to speculate
as to whether the police had superior knowledge
implicating defendant in the shooting. Branch,
supra, 182 N.J. at 347-48. However, even if the
testimony constituted improper hearsay, it did not
12
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
rise to the level of plain error. Here, in contrast to
Branch, the State presented significant additional
evidence of defendant's guilt. See Irving, supra,
114 N.J. at 448 (plain error unlikely where "a case
is fortified by substantial credible evidence");
30 State v. Douglas, 204 N.J. Super. 265, 275 *30
(App. Div.) (finding no plain error where State's
case was "fortified by direct positive evidence of
identification"), certif. denied, 102 N.J. 378
(1985).
The State produced evidence showing that
defendant, who had a tattoo of "Red" on his arm,
had been in the area shortly before the shooting,
and had left in a group that included A.C. Around
the same time the shooting occurred, the police
intercepted a call wherein defendant, who was
near the location of the shooting, told the OG he
needed to leave town because something serious
had happened. Other calls revealed that defendant
had shot a Crip in front of his house, and that he
and the OG were attempting to discover if anyone
had talked to the police. Even without the hearsay
32
testimony, this evidence was sufficient to establish
defendant's guilt. Finally, Wallace's testimony
about approaching defendant as a possible suspect
was fleeting in the course of the trial. Thus, it is
unlikely that it "led the jury to a result it otherwise
might not have reached." Irving, supra, 114 N.J. at
448.
IV.
We reject defendant's contention that the judge
erred by failing to issue a limiting instruction
relating to "other crimes" evidence regarding
NTG's propensity for violent acts. Again, we
apply the plain error standard because defendant
31 did *31 not object to the evidence during trial. R.
2:10-2.
Defendant submits that "this case was saturated
with direct testimony about the [NTGs']
propensity to commit violent criminal acts," citing
several examples of such testimony, including that
the set was formed in prison, members considered
violence a "badge of honor," members sold drugs
and committed shootings, stabbings, robberies,
and homicides, and the set had firearms available
in numerous locations across the state.
Other crimes evidence is "inherently prejudicial,"
and, if admitted under N.J.R.E. 404(b), requires
the court to "instruct the jury on the limited use of
the evidence." State v. Marrero, 148 N.J. 469, 495
(1997). The court must explain "that the proper
use of such evidence is to prove a relevant issue in
dispute and not to impugn the character of the
defendant." State v. Blakney, 189 N.J. 88, 92
(2006). The "essential point" of the limiting
instruction is to inform the jury that the other
crimes evidence may not be used "to prove [the]
defendant's disposition to commit the offenses
with which he was charged." State v. Stevens, 115
N.J. 289, 309 (1989).
With respect to gang membership, although that
alone is not evidence of criminal activity, "it is at
the very least strongly suggestive of such activity."
State v. Goodman, 415 N.J. Super. 210, 227 (App.
Div. 2010), certif. denied, 205 N.J. 78 (2011). *32
Thus, where evidence of gang membership is
presented, a limiting instruction is usually required
"because the average juror would likely conclude
that a gang member has engaged in criminal
activity. Such evidence has the potential to 'taint' a
defendant in much the same way as evidence of
actual criminal conduct." Ibid.
However, Goodman is distinguishable from this
case because there the defendant was not charged
with racketeering. Id. at 214. In contrast, here,
although evidence of defendant's role in the NTG
set and the criminal nature of the gang had the
potential to prejudice him, the evidence was not
"other crimes" evidence because it was direct
evidence admitted as proof of racketeering.
In accordance with N.J.S.A. 2C:41-2(c), "[i]t shall
be unlawful for any person employed by or
associated with any enterprise engaged in or
activities of which affect trade or commerce to
conduct or participate, directly or indirectly, in the
conduct of the enterprise's affairs through a pattern
13
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
of racketeering activity or collection of unlawful
debt." To this end, the State must present evidence
of both an "enterprise" and "a pattern of
racketeering activity." State v. Ball, 141 N.J. 142,
161-62 (1995), cert. denied, 516 U.S. 1075, 116 S.
33 Ct. 779, 133 L. Ed. 2d 731 (1996). *33
Because the enterprise is separate from the
incidents comprising the pattern, an organization
is required. Id. at 162. "The hallmark of an
enterprise's organization consists rather in those
kinds of interactions that become necessary when
a group, to accomplish its goal, divides among its
members the tasks that are necessary to achieve a
common purpose." Ibid. Evidence of a structure
within the enterprise "support[s] the inference that
the group engaged in carefully planned and highly
coordinated criminal activity." Ibid. In general, the
evidence presented for proof of an enterprise will
establish the number of persons involved, their
knowledge of the organization's objectives, the
manner in which they interacted, their individual
roles, the level of planning, the decision-making
process, implementation of decisions, the
frequency of criminal activity, and the amount of
time between each incident. Id. at 162-63. Thus,
here, the State had to prove that the NTGs existed
and were an "enterprise" under the racketeering
statute. This required presentation of evidence
regarding the set, its members, and their activity.
35
In United States v. Coppola, 671 F.3d 220, 244 (2d
Cir. 2012), cert. denied, __________ U.S.
__________, 133 S. Ct. 843, 184 L. Ed. 2d 653
(2013), the Second Circuit addressed a similar
contention in a racketeering case that the
34 defendant's trial was unfair *34 because the jury
heard inadmissible evidence of crimes committed
by crime families which "did not specifically
implicate" the defendant. The Second Circuit
concluded that:
such evidence [was] relevant to prove both
the enterprise and pattern elements of the
charged racketeering crimes. . . . "
[E]vidence of numerous criminal acts by a
variety of persons" may be relevant to
prove the enterprise and pattern elements
of racketeering. Thus, even though a
defendant "may reasonably claim no direct
participation" in the acts of others,
evidence of those acts may be relevant to
prove (1) the "existence and nature" of the
racketeering enterprise, and (2) a pattern of
racketeering activity by the defendant "by
providing the requisite relationship and
continuity of illegal activities."
[Id. at 244-45 (citations omitted).]
Moreover, "[s]uch conduct is not 'other' crime[s]
evidence . . .; rather, it is evidence of the very
racketeering crimes charged." Id. at 245. Thus,
even though the evidence presented in relation to
the racketeering charge included proof of criminal
activities that did not always involve the
defendant, it was admissible as part of the State's
efforts to prove the existence of an enterprise and
a pattern of racketeering activity. Ibid.
As in Coppola, the court here properly admitted
evidence of the criminal activity conducted by
members of the NTGs on behalf of the set, as well
as evidence of the set's history, hierarchy, *35 and
rules. Such evidence was relevant to the question
of whether the set constituted an enterprise
engaged in a pattern of racketeering activity in
accordance with N.J.S.A. 2C:41-2(c). Thus, it
should not have been excluded as other crimes
evidence under N.J.R.E. 404(b).
However, unlike in Coppola, the court here failed
to provide limiting instructions, although in the
course of the racketeering instruction it referred to
the "enterprise's goals" as those specific crimes
with which defendant was charged. Nevertheless,
the court's failure to issue limiting instructions,
even without a request from defendant, was error.
State v. Clausell, 121 N.J. 298, 322-23 (1990). The
14
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
fact that the jury acquitted defendant of several
serious charges demonstrates, however, that it did
not make blanket assumptions about his guilt
based on the criminal activity of his fellow gang
members. For example, although the State
presented significant evidence that members of the
NTGs were involved in the attempted murder of
Black, they acquitted defendant of this charge.
Thus, the absence of limiting instructions was
harmless under the circumstances.
V.
Defendant contends that the trial court erred by
denying his motion for acquittal on count
36 fourteen, the attempted murder *36 of A.C. The
court denied the motion, noting that the evidence
showed defendant in proximity to A.C. at the time
of the shooting, and that it was possible for the
jury to "believe that . . . defendant . . . acted with
reason to shoot [A.C.]"
When, under Rule 3:18-1, a motion for acquittal is
made at the close of the State's case, "the broad
test . . . is whether the evidence at that point is
sufficient to warrant a conviction of the charge
involved." State v. Reyes, 50 N.J. 454, 458 (1967).
Specifically, the court must ask "whether, viewing
the State's evidence in its entirety . . . and giving
the State the benefit of all its favorable testimony
as well as all of the favorable inferences which
reasonably could be drawn therefrom, a
reasonable jury could find guilt of the charge
beyond a reasonable doubt." Id. at 459. The same
standard applies on appellate review. State v.
Kittrell, 145 N.J. 112, 130 (1996).
When considering the jury's verdict in light of
circumstantial evidence, the court must recognize
that it is not necessary for the veracity of
inferences drawn by the jury to be established
beyond a reasonable doubt. Id. at 131. Rather, it
need only be "'more probable than not'" that the
inferences are true. Ibid. (quoting State v. Brown,
80 N.J. 587, 592 (1979)). Moreover, evaluation of
"witness credibility and the weight and worth of
the evidence" are jury functions. State v. Taccetta,
37 *37 301 N.J. Super. 227, 241 (App. Div.), certif.
denied, 152 N.J. 188 (1997). Thus, "Appellate
review is limited to the correction of injustice
resulting from a plain and obvious failure of the
jury to perform its duty." Ibid.
Although there was no direct evidence that
defendant shot A.C., the record was replete with
circumstantial evidence from which the jury could
reasonably infer defendant was the shooter. For
example, A.C. lived in the apartment complex
where the shooting occurred, an area which was
primarily Crip. Shortly before the shooting,
defendant was witnessed in a group with A.C.
Immediately following the shooting, defendant,
who was near the apartments, called the OG and
told him that he needed to get out of town. Bergin
provided numerous interpretations of subsequent
calls, testifying that defendant's unwillingness to
be explicit over the phone indicated he had done
something serious. According to Bergin, the OG
later told another NTG member that defendant had
shot a Crip in front of the Crip's house.
Finally, contrary to defendant's contention, Bergin
did not admit that defendant's unwillingness to
talk may have been because he was a witness to
the shooting. Instead, Bergin explained the
interpretation that defendant was only a witness
might be valid if that call was viewed alone, but
38 "in the *38 context of [Bergin's] overall
understanding of the investigation, [that
interpretation was] not possible." Thus, "viewing
the State's evidence in its entirety . . . and giving
the State the benefit of all its favorable testimony
as well as all of the favorable inferences which
reasonably could be drawn therefrom," we
conclude there was no error. Reyes, supra, 50 N.J.
at 458.
VI.
Finally, defendant argues for the first time on
appeal that the judge erred by giving a flawed
racketeering jury charge. He contends that the
judge's instruction commingled the crimes of
racketeering and conspiracy to commit
15
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
racketeering. And, he asserts that the jury's verdict
on the racketeering charge was based on
"racketeering acts" that are not set forth in the
statute, N.J.S.A. 2C:41-1(a)(1).
Because defendant did not object to the charge
when it was given, he must demonstrate plain
error on appeal. R. 2:10-2. Where a jury charge is
concerned, "[f]or an error to constitute plain error,
. . . not every possibility of an unjust result will
suffice. With a jury trial, the possibility must be
'sufficient to raise a reasonable doubt as to
whether the error led the jury to a result it
otherwise might not have reached.'" State v.
Jordan, 147 N.J. 409, 422 (1997) (quoting State v.
39 *39 Macon, 57 N.J. 325, 336 (1971)). That being
said, "[a]n essential ingredient of a fair trial is that
a jury receive adequate and understandable
instructions. Correct jury instructions are at the
heart of the proper execution of the jury function
in a criminal trial." State v. Afanador, 151 N.J. 41,
54 (1997) (citations omitted) (internal quotation
marks omitted).
As the New Jersey Supreme Court explained in
Ball, supra, 141 N.J. at 151, under the New Jersey
RICO act:
[I]t [is] a crime for a person to be
employed by or associated with "an
enterprise" and to engage or participate or
become involved in the business of the
enterprise "through a pattern of
racketeering activity." N.J.S.A. 2C:41-2(b)
and 2(c). The Act also makes it a crime for
a person to conspire to engage in such
conduct.
The State charged defendant in Count One of the
indictment with racketeering, N.J.S.A. 2C:41-2c,
and conspiracy to commit racketeering, N.J.S.A.
2C:41-2d, both of which are contained within the
racketeering statute, N.J.S.A. 2C:41-2.4
41
40 Subsection d *40 of N.J.S.A. 2C:41-2 states that it
is unlawful to conspire, as defined by N.J.S.A.
2C:5-2, to commit any of the offenses listed in
subsections a, b, or c of N.J.S.A. 2C:41-2. Thus,
the State properly charged defendant with
violating the racketeering statute under two
theories. Defendant did not request the judge to
charge the jury that they must agree unanimously
on one theory or the other. Juror unanimity is not
required when a statute embodies a single offense
which can be committed in a number of different
ways. State v. Frisby, 174 N.J. 583, 597 (2002);
State v. Parker, 124 N.J. 628, 634-35 (1991), cert.
denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed.
2d 625 (1992).
4 Defendant's counsel argues in a footnote
that, contrary to this court's holding in
State v. Cagno, 409 N.J. Super. 552, 600
(App. Div. 2009), aff'd, 211 N.J. 488
(2012), cert. denied, __________ U.S.
__________, 133 S. Ct. 877, 184 L. Ed. 2d
687 (2013), conspiracy to commit
racketeering is a second-degree crime, as
opposed to racketeering which is a first-
degree crime. The New Jersey Supreme
Court recently found that "if the pattern of
racketeering activity involves crimes of
violence or firearms, the racketeering
conspiracy is of the first degree." Cagno,
supra, 211 N.J. at 523. Here, in light of the
violent crimes constituting the predicate
acts for purposes of the racketeering charge
against defendant, the crime was one of the
first degree whether he was convicted of
racketeering or conspiracy to commit
racketeering.
--------
The essence of the crime of racketeering "is the
involvement in the affairs of an enterprise through
a pattern of racketeering activity." Ball, supra, 141
N.J. at 155. Thus, to convict a defendant of
racketeering, a jury must determine whether the
State successfully proved both the existence of an
enterprise and a pattern of racketeering activity.
Id. at 155, 163. Pursuant to N.J.S.A. 2C:41-1d, a
"pattern of racketeering activity" requires: *41
16
 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)
(1) Engaging in at least two incidents of
racketeering conduct one of which shall
have occurred after the effective date of
this act [June 5, 1981] and the last of
which shall have occurred within [ten]
years (excluding any period of
imprisonment) after a prior incidence of
racketeering activity; and
(2) A showing that the incidents of
racketeering activity embrace criminal
conduct that has either the same or similar
purposes, results, participants[,] or
victims[,] or methods of commission[,] or
are otherwise interrelated by distinguishing
characteristics and are not isolated
incidents.
"[T]he primary criterion of New Jersey's 'pattern
of racketeering activity' [requirement] is
'relatedness.' That calls for the application of a
broad standard involving the totality of all relevant
circumstances, which may include" the continuity
of the activity. Ball, supra, 141 N.J. at 169.
The crimes which constitute racketeering activity
for purposes of whether a pattern exists are
enumerated in N.J.S.A. 2C:41-1a. Here, the court
instructed the jury that the alleged "incidents of
racketeering activity" were "committing,
attempting to commit, or conspiring to commit"
various crimes with which defendant also was
charged. Specifically, the court instructed the jury:
In the event that you find the defendant
guilty of racketeering, then you must
answer the following questions: Has the
State proven beyond a reasonable doubt
42 *42 [that] the defendant is guilty of the
following crimes: One, attempted murder
of Black; two, aggravated assault second
degree of Black; three, attempted murder
of [A.C.]; four, conspiracy to murder
[A.P.]; five, unlawful possession of a
weapon; six, possession of a weapon for an
unlawful purpose; seven, possession of a
prohibited device; eight, aggravated
assault, pointing a weapon at or in the
direction of Patrolman Daryl Hall[; nine,]
conspiracy to . . . possess with intent to
distribute . . . a controlled dangerous
substance.
The court further explained that the State had to
"prove beyond a reasonable doubt that the
defendant committed at least two of [those] crimes
and that the crimes he committed were a
continuing series of crimes that constitute a
pattern of racketeering." The crimes also were
listed on the verdict sheet for the racketeering
count under the question, "Has the State proven
beyond a reasonable doubt the defendant's guilt
with respect to the following crimes?" Moreover,
the verdict sheet referred only to racketeering and
not conspiracy to commit racketeering.
Although N.J.S.A. 2C:41-1a does not specifically
include conspiracy to commit murder, attempted
murder, or conspiracy to commit a drug crime
within the definition of racketeering activity, those
crimes are implicitly and logically included.
N.J.S.A. 2C:41-1a(2) provides that "any conduct
defined as 'racketeering activity' under Title 18,
43 U.S.C. § 1961(1)(A), *43 (B)[,] and (D)"
constitutes racketeering activity under the New
Jersey statute as well. The federal statute includes
"any act or threat involving murder" within its
definition, thereby encompassing conspiracy to
commit murder and attempted murder. 18
U.S.C.A. § 1961(1) (emphasis added). With
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 State v. Smart DOCKET NO. A-3660-08T4 (N.J. Super. Jun. 7, 2013)

respect to the drug crime, N.J.S.A. 2C:41-1a(1)(u) Moreover, even with the weapons charges
defines "all crimes involving illegal distribution of removed, the remaining crimes are sufficiently
a controlled dangerous substance or controlled similar in either purpose, result, participants, or
substance analog, except possession of less than method of commission to satisfy the requirement
one ounce of marijuana" as racketeering activity. of N.J.S.A. 2C:41-1d(1). Although the crimes
(Emphasis added). occurred in different places and involved different
victims, the evidence demonstrated that defendant
Thus, the court's use of the terms "conspiracy" or
was a direct participant in each crime. Moreover, a
"conspired" in reference to these alleged crimes
significant amount of testimony was presented
was not improper. Moreover, it was unlikely to
showing that all of defendant's criminal acts were
confuse the jury, as the court already had issued its
committed on behalf of the NTG set. Thus, the
instructions regarding the other charges against
45 crimes were *45 sufficiently interrelated to
defendant, which included all of the crimes listed
establish a pattern, and it is unlikely the jury
as potential racketeering activity. At the beginning
would have found otherwise had the weapons
of its instructions, the court informed the jury that
charges been removed from the verdict sheet.
it was "instructing [them] in the reverse order of
the indictments because the charges build and Thus, any errors in the instructions and verdict
culminate towards the first charge," racketeering. sheet were harmless, and certainly do not rise to
Thus, the potential for confusion was minimal, if the level of plain error. The instructions were
not non-existent. understandable, clear, and unlikely to have caused
confusion among the jurors. See Afanador, supra,
Finally, defendant points out that the weapons and
151 N.J. at 54. Under the circumstances of the
assault charges the court included in its instruction
case, and in light of the overwhelming evidence of
44 and on the verdict *44 sheet are not considered
defendant's guilt, it is unlikely that the
racketeering activity under the statute, thereby
complained-of errors "led the jury to a result it
potentially further misleading the jury and
otherwise might not have reached." Jordan, supra,
allowing defendant to be convicted on improper
147 N.J. at 422 (internal quotation marks omitted).
grounds. Although, as conceded by the State,
these crimes were improperly included in the After carefully considering the record and the
court's instruction and on the verdict sheet, any briefs, we conclude that defendant's remaining
error is harmless. The jury had an adequate basis arguments are "without sufficient merit to warrant
to find defendant guilty of racketeering using the discussion in a written opinion." R. 2:11-3(e)(2).
three statutorily enumerated racketeering
Affirm.
activities: (1) the attempted murder of A.C.; (2)
conspiracy to murder A.P.; and (3) conspiracy to I hereby certify that the foregoing is a true copy of
possess or possess with intent to distribute a the original on file in my office.
controlled dangerous substance. The fact that the
CLERK OF THE APPELLATE DIVISION
jury also found defendant guilty of two of the
weapons charges is immaterial since only two
predicate acts are required for conviction. N.J.S.A.
2C:41-1d(1).

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