Conspiracy to distribute CDS is not an enumerated predicate offense of the promoting statute, N.J.S.A. 2C:33-30, and defendant’s conviction for a crime that does not exist must be vacated.
1. N.J.S.A. 2C:33-30(a) provides in relevant part that “[a] person promotes organized street crime if he conspires with others . . . to commit any crime specified in” one of several enumerated chapters of
Title 2C of the New Jersey statutes or one of the additional statutes listed from chapters 34 and 39 of Title 2C. To prove “promoting,” the State must prove beyond a reasonable doubt the accused conspired to
commit at least one offense on that specific list of predicate offenses. Conspicuously absent from that list 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) and 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. (pp.13-15)
2. If the party contesting the jury instruction fails to object to it at trial, the standard on appeal is one of plain error; if the party objects, the review is for harmless error. Defendant raised an objection to the now challenged jury instruction at various points leading up to, during, and through the end of the trial. The issue was properly preserved, thus the Court reviews for harmless error. (pp. 15-19)
3. Defendant was convicted and sentenced based upon a charge that does not exist within the criminal code. Such a result is not harmless, but rather unjust. The jury’s verdict, premised upon the instructions provided by the trial court, is legally invalid. Because defendant was not on notice of any other proper predicate offense for the promoting statute under count four of the indictment, the jury’s verdict on that
count is vacated without a remand. The Court does not reach the question as to whether a double inchoate crime may exist within New Jersey’s criminal code. (pp. 19-20)
