On March 27, 2024, the New Jersey Supreme Court decided the Union County case of State v. Kalil Cooper. The principal issue under N.J.S.A. 2C:33-30 was whether conspiracy to distribute a controlled substance could be used a predicate offense for promoting organized street crime.
I presented a seminar with Justice Noriega on criminal law and immigration issues when he was in private practice. He wrote for the Court in relevant part: The promoting statute sets forth a conspiracy offense. A person may be guilty of the offense only if the State proves beyond a reasonable doubt that such a person has conspired with others to promote organized street crime, in the capacity of an organizer, supervisor, financier or manager, with the goal of committing any of the specified predicate offenses. Thus, to prove “promoting,” the State must also prove beyond a reasonable doubt the accused conspired to commit at least one offense on the list of predicate offenses. Ibid. That list includes any offenses from Chapters 11 through 18 of the Criminal Code (homicide, assault, kidnapping, sex offenses, robbery, bias offenses, arson, burglary); any offenses from Chapters 20 (theft), 33 (riot, disorderly conduct, related offenses), 35 (controlled dangerous substances), and 37 (gambling offenses) of the Code; and a specific offense or offenses within Chapters 34 (public indecency) and 39 (firearms, other dangerous weapons offenses) of the Code, to the exclusion of the other offenses within Chapters 34 and 39.
Conspicuously absent from the list of predicate offenses is the substantive offense of conspiracy pursuant to N.J.S.A. 2C:5-2. 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. 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).
This is another example of our courts deferring to the Legislature. This deference is an important part of the separation of powers that is intended to maintain the balance of power between the three branches of state government: Legislative, Executive, and Judiciary.
