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Drug Conspiracy Conviction Reversed on Appeal


by in Criminal Appeals, Drug Defense

State v. Glenn Miller, unpublished opinion, App. Div. Docket No. A-0649-09T4 (December 30, 2010) – Convictions reversed. “The jury acquitted defendant of the possession charge contained in the indictment. However, over defendant’s objection, the court instructed the jury that if it found defendant not guilty of possession, it could consider as a lesser-included offense the crime of ‘conspiracy’ to possess the heroin. In actuality, the charge given to the jury was for vicarious liability for Bibby’s conduct on the theory that defendant was engaged in a conspiracy with Bibby, under N.J.S.A. 2C:2-6b(4). The court did not charge the substantive crime of conspiracy under N.J.S.A. 2C:5-2. The jury found defendant guilty of ‘conspiracy.’… This case was prosecuted against defendant on a very simple basis. He was found in actual possession of a substance which the State believed was heroin. If the State could convince the jury beyond a reasonable doubt that S-1 was heroin, that defendant possessed it, and that he did so knowingly or purposely, it would have proved its case. However, when it realized that its trial proofs were questionable as to whether S-1 was indeed heroin, the State attempted to rescue its case by shifting gears and proposing a conspiracy theory. The prosecutor expressly agreed with the judge that the vicarious liability charge was the one she requested. In the circumstances of this case, where the State separated the evidence applicable to Bibby (S-6) and that applicable to defendant (S-1), the vicarious liability charge, had it been correctly stated, would have been self-evidently impossible to satisfy. In the manner the charge was given, it misstated the law of vicarious liability in the context of this case. Accordingly, defendant’s conviction must be reversed.”






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