227, 253 (App. Div. 1997), certif. denied, 152 N.J. 187,
188 (1997).
VII. TRIAL ISSUES
A. Joinder
Charged conspiracy and overt acts of knowing and
unlawful storage and transportation of hazardous wastes
and reckless storage and transportation of such wastes did
not involve the same conduct and the same episode as
offenses forming the basis of an earlier indictment, and
circumstances did not warrant finding that fairness and
fulfillment of defendants’ reasonable expectations
required joinder of offenses. State v. Colbert, 245 N.J.
Super. 53, 57-60 (App. Div. 1990).
B. Variance
When a defendant claims variance between the
object(s) of the conspiracy charged in the indictment and
the object(s) of the conspiracy proven at trial, “the
inquiry is whether the variance between the proof
adduced at trial substantially affected the rights of
defendant by hindering the preparation of his defense or
by subjecting him to another prosecution for the same
offense.” State v. Burgess, 97 N.J. Super. 428, 433 (App.
Div. 1967). A variance claim raised for the first time after
conviction is subject to plain error review. Id.
C. Jury Instructions
Defendant’s conviction of possession of cocaine
could not be sustained on appeal on basis of vicarious
liability under theory of conspiracy, where jury was not
charged that it could find defendant guilty of possession
counts on basis of vicarious liability as accomplice or as
conspirator, but was only charged on conspiracy as
substantive crime. State v. Schmidt, 110 N.J. 258 (1988).
D. Sufficiency of Evidence
In State v. Fornino, 223 N.J. Super. 531 (App. Div.
1988), certif. denied, 111 N.J. 570 (1988), defendant
challenged the sufficiency of the evidence supporting his
convictions for conspiracy to commit escape and murder,
attempted murder, and attempted escape. Defendant
was an outside agent involved in the escape plans of a
Rahway inmate that never came to fruition. The court
held that the evidence presented was sufficient to support
a conspiracy charge. Although it presented a more
difficult question, the evidence also supported
defendant’s conviction for attempted murder and
attempted escape, the court considering in part
defendant’s acceptance of payment for his part in the
plan.E. Lesser Included Offenses
Under N.J.S.A. 2C:1-8d(2), an offense includes the
lesser offense if “[i]t consists of an attempt or conspiracy
to commit the offense charged or to commit an offense
otherwise included therein[.]”Conspiracy to commit armed robbery is a lesser
included offense of armed robbery, but a general
conspiracy to commit armed robbery is not a lesser
included offense of a charged armed robbery of a victim
specifically named in the indictment. State v. Neal, 229
N.J. Super. 28, 34-35 (App. Div. 1988).F. Juveniles
Where defendant was charged as an adult for a
conspiracy which continued for three and one-half years
beyond his eighteenth birthday, during which time
defendant’s participation was substantial, defendant was
responsible for his own acts and those of his co-
conspirators once he joined the conspiracy. That
defendant participated as a conspirator before his
eighteenth birthday does not immunize his conduct as an
adult. Age in these circumstances does not constitute an
element of the offense, nor does it pose a jurisdictional
bar. State v. Salentre, 275 N.J. Super. 410, 423-24 (App.
Div. 1994), certif. denied, 138 N.J. 269 (1994).G. Coconspirator Exception To Hearsay Rule (See also, EVIDENCE, this Digest)
VIII. RACKETEERING
In order to be convicted of “conspiracy” to violate
state Racketeer Influenced and Corrupt Organizations
(RICO) Act, N.J.S.A. 2C:41-2d, defendant need not
agree to commit personally at least two acts of
racketeering but, rather, defendant’s agreement that
others will commit predicate acts is sufficient. State v.
Ball, 141 N.J. 142 (1995).Conspiracy can provide a basis, or “predicate act,” for
racketeering, under N.J.S.A. 2C:41-1a. State v. Bisaccia,
319 N.J. Super. 1, 20 (App. Div. 1999); see also, N.J.S.A.
2C:5-2g; State v. Ball, 141 N.J. at 174.