STATE OF NEW JERSEY VS. BARRY BERRY STATE OF NEW JERSEY VS. KENNETH DANIELS STATE OF NEW JERSEY VS. LEVELL BURNETT (17-06-1583, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) - Published

The court consolidates the appeals brought by three codefendants who were tried together for drug and firearms offenses. All three were charged and convicted for the "kingpin" offense, leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. The State at trial relied principally on recorded jailhouse telephone conversations to establish defendants' roles in the drug trafficking conspiracy. The case hinges on what it means to be a "high-level" member of the conspiracy.

All three defendants moved for judgment of acquittal at the close of the State's case. The trial judge addressed defendants' motions collectively and did not analyze the facts pertaining to each defendant's individual role. The court concludes that the trial judge erred in denying the acquittal motion of the lowest-ranking defendant, Berry. While there can be multiple "leaders" within a given drug trafficking organization, not every participant in a drug trafficking conspiracy meets the definition of being a leader. Even giving the State the benefit of all favorable inferences from the evidence, the court concludes the State failed to prove that Berry exercised substantial authority and control over others. Berry essentially forwarded messages and instructions from codefendant Daniels, who was incarcerated in county jail. While that was an important function, the court notes that a participant may perform an essential function in the operations of an illicit drug operation without necessarily being a high-ranking member of that network for purposes of the leader offense.