On March 7, 2022, a three-judge appellate panel decided the Essex County case of State v. Barry Berry. The principal issue under N.J.S.A. 2C:35-3 concerned the adequacy of the jury instruction regarding the narcotics “kingpin” statute.
Judge Susswein wrote for the Court in relevant part: As we have noted, the judge read verbatim from the model jury charge. See Model Jury Charges (Criminal), “Leader of Narcotics Trafficking Network.” However, the model charge does not include language from Alexander that explains, “a ‘high-level’ or ‘upper-echelon’ ‘leader’ of such an organization is one who occupies a significant or important position in the organization and exercises substantial authority and control over its operations.” In the unusual circumstances of this case, we believe this additional explanatory language was necessary. In this particular application, the adjectives “significant,” “important,” and “substantial” are not superfluous or redundant. Rather, given the distinctive circumstances of this multi-leader prosecution, the highlighted modifiers are, dare we say, significant, important, and substantial in explaining whether any or all of these three defendants occupied a high-level position in the drug trafficking network.
This is especially so because the jury expressed confusion on this very point of law. During the course of its deliberations, the jury asked the following question: “with regards to the leader of narcotics trafficking network; in defining high level element, . . . number [four], the wording seems similar a little to element [three]. Clarifying question: is it possible to be a supervisor, element [three], but not high-level for element [four]?”
The trial judge responded to the jury question by explaining: “[Three] and [four] on the surface do they sound similar? Yeah, I would agree with you. They sound similar but they [sic] are [four] separate elements to this offense and you have to consider each one separately.” The judge then re-read the leader jury instruction that he had previously delivered, verbatim.
The jury question gives great insight into the deliberations process among laypersons. While the question presented from the foreperson to the Court is filled with grammatical errors, the substance of the question indicates that the jury was asking good questions and taking their collective job seriously.
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