(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 19, 1994 -- Decided July 19, 1994
HANDLER, J., writing for a majority of the Court.
Ryan Lee Alexander hired Anthony Harewood to sell crack cocaine in Hackensack, introduced
Harewood to his customers, and supplied Harewood daily with thirty to seventy baggies of crack. Harewood
sold the baggies at $10 each and gave seventy percent of his gross receipts to Alexander or to Alexander's
cousin. Harewood's girlfriend, Sandra Palmer, assisted him by carrying the crack and by delivering the drugs to
buyers after they had paid Harewood. Harewood gave as much as $5,000 per week to Alexander and kept as
much as $2,000 for himself.
A confidential informant identified Harewood to an undercover narcotics officer as a drug seller. After
the officer had completed an undercover buy from Harewood, he arrested both Palmer and Harewood.
Harewood and Palmer identified Alexander as their supplier and, thereafter, Alexander's apartment was searched
by police. The search yielded 11.08 grams of cocaine contained in forty-two baggies that matched those sold by
Harewood and Palmer.
The State charged Alexander with possession of cocaine, possession of cocaine with intent to distribute,
and with being a leader of a drug-trafficking network, in violation of N.J.S.A. 2C:35-3, commonly known as the
"drug kingpin" statute. Alexander was convicted by a jury on all counts and was sentenced to the mandatory
term of life imprisonment with a twenty-five-year parole disqualifier on his conviction for being a leader of a
narcotics-trafficking network, and to two concurrent five-year sentences on the charges of possession of cocaine
and possession with intent to distribute.
On appeal, the Appellate Division affirmed in part and reversed and remanded in part. The court
merged Alexander's convictions for possession of cocaine into his conviction for possession of cocaine with
intent to distribute. The Appellate Division rejected all of Alexander's other arguments except those directed at
the drug-kingpin charge. The Appellate Division upheld the validity of the drug-kingpin statute against
Alexander's "vagueness" attack, in light of State v. Afanador. The Appellate Division reversed and remanded for
retrial on the "leader of a drug trafficking network" charge, however, because the trial court had failed to tell the
jury that it must find that Alexander had functioned as an upper-echelon member of the organized network, and
because the trial court had not given the jury adequate definitions of certain critical terms contained in the drug-kingpin statute and the Legislature's statement of purpose found in N.J.S.A. 2C:35-1.1. According to the
Appellate Division, the correct jury instruction should have defined "organized drug-trafficking network" as a
group of individuals who, by reason of their number and interrelationships, constitute a structured organization or
system engaged in the manufacture or distribution of illegal drugs. The Appellate Division also held that the
trial court should have defined "upper echelon member" as someone who stands on an upper level of the chain of
command of a drug-trafficking network, exercising command authority over members of that organization who
are in a subordinate status. Finally, the Appellate Division held that the jury charge should define "upper level"
as a level that is superior to street-level distributors and to their immediate supervisors or suppliers.
The Supreme Court granted the State's petition for certification. The State argues that the Appellate
Division erred by engrafting a declaration of legislative policy onto the drug-kingpin statute so as to redefine the
elements of the offense and require that the State prove beyond a reasonable doubt a material element that the
Legislature did not include in its definition of the offense.
HELD: In a prosecution under the drug-kingpin statute, N.J.S.A. 2C:35-3, the trial court should instruct the
jury that it must find that the defendant occupies a high-level position, that is, a position of superior
authority or control over other persons, in a scheme or organization of illegal drug distribution,
manufacture, dispensing or transporting, and that in that position the defendant exercised supervisory
power or control over others engaged in an organized drug-trafficking network.
1. When the Legislature enacted the Comprehensive Drug Reform Act of 1986, it included a statement of
purpose set forth in N.J.S.A. 2C:35-1.1. That statement of purpose expressly makes a defendant's "upper level"
role in a drug-network central to the activity criminalized by the Legislature. Because the drug-kingpin statute
does not include some of the important factors used in the statutory statement of purpose to describe the drug-kingpin crime, it does not completely convey the full legislative understanding in creating this crime. The words
of the drug-kingpin statute alone, without any further explanation, do not fully inform the jury of the nature of
the actual elements of the conduct that the Legislature intended to criminalize. The Legislature intended that the
status or the position of the defendant as an upper-level member in the drug-trafficking network be a substantive
part of the crime. Therefore, consistent with that intent, the status or position of the defendant should be
considered a material element of the crime. (pp. 6-9)
2. The recognition of the upper-level position of the defendant as an essential element of the crime under
the drug-kingpin statute does not, as argued by the State, entail a rewriting of the statute. Correct jury
instructions are essential for a fair trial. A court's obligation properly to instruct and to guide a jury includes the
duty to clarify statutory language that prescribes the element of a crime, especially when clarification is essential
to ensure that the jury will fully understand and actually find those elements in determining a defendant's guilt.
Courts commonly clarify statutory language to give more precise meaning to statutory terms to effect the
legislative intent and to ensure that juries carry out that intention. (pp. 9-14)
3. A proper instruction should, in addition to reciting the statutory language of the drug-kingpin statute,
inform the jury that it must find that the defendant occupies a high-level position of authority in the scheme of
distribution, manufacture, dispensing or transporting illegal narcotics. A court should also instruct the jury that a
defendant's position and status must be superior or high level in relation to other persons in the drug-trafficking
network; that the defendant's role must be that of a "leader" in the drug organization or system; and, in that
capacity, the defendant exercised supervisory power or control over others engaged in the organized drug-trafficking network. (pp. 14-15)
4. The Court disapproves of the Appellate Division's proposed instruction that defines "upper level" as a
level that is superior to street-level distributors and to their immediate supervisors or suppliers. Under the
statute, a drug-trafficking network need not have any specific configuration or chain of command. A "high-level" or "upper-echelon" leader is one who occupies a significant or important position in the organization and
exercises substantial authority and control over its operators. (pp. 15-16)
So much of the judgment of the Appellate Division that reversed Alexander's conviction and remanded
for a new trial is AFFIRMED. The terms of the remand are MODIFIED with respect to the proper jury
charge.
CLIFFORD, J., dissenting, in which CHIEF JUSTICE WILENTZ and JUSTICE GARIBALDI
join, is of the view that, a few months ago, in State v. Afanador, this Court found that the statute describes the
elements of the offense in common, well-understood terms. However, the Court holds today that the language is
flawed. The Court's reliance on the statement of purpose as justification for it's addition of a defendant's
"upper-level position" as an essential element of the drug-kingpin crime is badly misplaced. The statement of
purpose does nothing more than set forth the Legislature's findings and its declaration of public policy; it does
not criminalize any conduct, define any elements of any offense, provide for any penalties, or otherwise display
any of the identifying features of a criminal statute. If the drug -kingpin statute does not conform to the
statement of legislative purpose and intent, that circumstance is for the Legislature, not for this Court, to remedy.
In its attempt to fashion such a remedy, the Court drafts a new statute.
JUSTICES POLLOCK, O'HERN and STEIN join in JUSTICE HANDLER 's opinion. JUSTICE
CLIFFORD filed a separate dissenting opinion in which CHIEF JUSTICE WILENTZ and JUSTICE
GARIBALDI join.
SUPREME COURT OF NEW JERSEY
A-
126 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RYAN LEE ALEXANDER,
Defendant-Respondent.
Argued January 19, 1994 -- Decided July 19, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
264 N.J. Super. 102 (1993).
Stuart A. Minkowitz, Assistant Prosecutor,
argued the cause for appellant (John J. Fahy,
Bergen County Prosecutor, attorney; Mr.
Minkowitz and Susan W. Sciacca, Assistant
Prosecutor, of counsel and on the brief).
Mordecai Garelick, Assistant Deputy Public
Defender, argued the cause for respondent
(Deborah T. Poritz, Public Defender,
attorney).
Robin Parker, Deputy Attorney General, argued
the cause for amicus curiae Attorney General
of New Jersey (Fred DeVesa, Acting Attorney
General, attorney).
Lawrence S. Lustberg argued the cause for
amicus curiae Association of Criminal Defense
Lawyers of New Jersey (Crummy, Del Deo,
Dolan, Griffinger & Vecchione, attorneys; Mr.
Lustberg and Jonathan Romberg, on the brief).
The opinion of the Court was delivered by
HANDLER, J.
A jury convicted defendant of several drug-related offenses,
including a charge of violating N.J.S.A. 2C:35-3, commonly known
as the "drug kingpin" statute. The Appellate Division reversed
the "drug kingpin" conviction because it found error in the trial
court's instructions to the jury.
264 N.J. Super. 102, 107-11
(1993). Specifically, the court below held that in a prosecution
for violation of N.J.S.A. 2C:35-3, the trial court must instruct
the jury that the State bears the burden of proving that "the
defendant functioned as an 'upper echelon member' of an organized
'drug trafficking network' . . . ," id. at 110, and must define
for the jury certain other terms contained in the statute, id. at
109-10. We granted the State's petition for certification,
134 N.J. 564 (1993), to review that determination.
Defendant, Ryan Lee Alexander, hired Anthony Harewood to sell crack cocaine in Hackensack, introduced Harewood to his customers, and supplied Harewood daily with thirty to seventy baggies of crack. Harewood sold the baggies at $10 each and gave seventy percent of his gross receipts to defendant or to Chris Kittrell, defendant's cousin and an unindicted coconspirator. Harewood's paramour, Sandra Palmer, assisted him by carrying the crack and by delivering the drugs to buyers after they had paid Harewood. Making between $300 and $1,500 per day, Harewood gave up to $5,000 per week to Alexander, and kept up to $2,000.
A confidential informant identified Harewood to an undercover narcotics officer as a drug seller. The officer gave $100 to Harewood, who directed him to Palmer for completion of the drug transaction. Palmer gave the officer nine baggies
containing what was later identified as crack cocaine. When
Harewood and Palmer were arrested, they had 7.34 grams of cocaine
contained in nine $100 baggies and $341.02 in cash. They
identified defendant as their supplier, described the commission
arrangement, and said that they had sold crack five to six days
per week. A search of defendant's apartment yielded 11.08 grams
of cocaine contained in forty-two baggies that matched those sold
by Harewood and Palmer. The State charged Alexander with
possession of cocaine in violation of N.J.S.A. 2C:33-10a(1); with
possession of cocaine with intent to distribute contrary to
N.J.S.A. 2C:35-5a(1) and -5b(3); and with being a leader of a
drug-trafficking network in violation of N.J.S.A. 2C:35-3. The
State also charged Harewood and Palmer with various counts of
possession of cocaine and of possession of cocaine with intent to
distribute.
At trial, Harewood and Palmer testified against defendant,
and the jury convicted him on all counts. The trial court
sentenced defendant to the mandatory term of life imprisonment
with a twenty-five-year parole disqualifier on his conviction for
being a leader of a narcotics-trafficking network, and to two
five-year sentences on the charges of possession of cocaine and
possession of cocaine with intent to distribute, to run
concurrently with the life sentence.
The Appellate Division affirmed in part and reversed and
remanded in part. Other than merging defendant's conviction for
possession of cocaine into his conviction for possession of
cocaine with intent to distribute, the court below rejected all
defendant's arguments except those directed at the N.J.S.A.
2C:35-3 charge. That statute provides in pertinent part as
follows:
A person is a leader of a narcotics
trafficking network if he conspires with
others as an organizer, supervisor, financier
or manager, to engage for profit in a scheme
or course of conduct to unlawfully
manufacture, distribute, dispense, bring into
or transport in this State methamphetamine,
lysergic acid diethylamide, phencyclidine or
any controlled dangerous substance classified
in Schedule I or II, or any controlled
substance analog thereof. Leader of
narcotics trafficking network is a crime of
the first degree and upon conviction thereof
* * * a person shall be sentenced to an
ordinary term of life imprisonment during
which the person must serve 25 years before
being eligible for parole. * * *
Notwithstanding the provisions of N.J.S.A.
2C:1-8, a conviction of leader of a narcotics
trafficking network shall not merge with the
conviction for any offense [that] is the
object of the conspiracy. * * *
It shall not be necessary in any
prosecution under this section for the State
to prove that any intended profit was
actually realized. The trier of fact may
infer that a particular scheme or course of
conduct was undertaken for profit from all of
the attendant circumstances, including but
not limited to the number of persons involved
in the scheme or course of conduct, the
actor's net worth and his expenditures in
relation to his legitimate sources of income,
the amount or purity of the specified
controlled dangerous substance or controlled
dangerous substance analog involved, or the
amount of cash or currency involved.
Correctly anticipating this Court's decision in State v. Afanador, 134 N.J. 162 (1993), the Appellate Division upheld the validity of N.J.S.A. 2C:35-3 against defendant's "vagueness" attack. 264 N.J. Super. at 107. It reversed and remanded for retrial on the "leader of a drug trafficking network" charge, however, not only because the trial court had failed to tell the
jury that it must find that Alexander had functioned as an upper-echelon member of an organized network, id. at 110, but also
because the court had not furnished the jury with adequate
definitions of certain critical terms contained in N.J.S.A.
2C:35-3 and in N.J.S.A. 2C:35-1.1, the Legislature's statement of
purpose. According to the Appellate Division, a correct jury
instruction should define "'[o]rganized "drug trafficking
network"' . . . as a group of individuals who, by reason of their
number and interrelationships, constitute a structured
organization or system engaged in the manufacture or distribution
of illegal drugs," id. at 111, and should define "'[u]pper
echelon member' . . . as someone who stands on an upper level of
the chain of command of a drug trafficking network, exercising
command authority over members of that organization whose status
is subordinate to his." Ibid. Finally, the Appellate Division
held that the jury charge should define an "upper" level as "a
level [that] is superior to street-level distributors and to
their immediate supervisors or suppliers." Ibid.
On its appeal to this Court from the Appellate Division's
reversal of the N.J.S.A. 2C:35-3 conviction, the State argues
that the court below erred by "engraft[ing] a declaration of
legislative policy onto the drug kingpin statute so as to
redefine the elements of the offense," and by requiring that the
jury find beyond a reasonable doubt that the State had
established each of those newly-defined elements. Hence, this
appeal presents squarely the issue that we deferred examining in
Afanador, supra, 134 N.J. at 179, namely, the requirements for a
correct jury charge in a "leader of a drug trafficking network"
prosecution under N.J.S.A. 2C:35-3.
N.J.S.A. 2C:35-3 is an unusually-constructed criminal statute. It describes the offense by giving a label to the offender: leader of a narcotics-trafficking network. It then lists the activities that will result in one being branded with that label, namely, (1) that the defendant conspired with at least two others; (2) that the defendant was an organizer, supervisor, financier, or manager; (3) that the defendant engaged in the conspiracy for profit; and (4) that the conspiracy included a scheme or course of conduct unlawfully to manufacture, distribute, dispense, or transport a controlled dangerous substance or analog. Those enumerated activities constitute the material elements of the crime. See N.J.S.A. 2C:1-14(i) (stating that "a material element" of crime is a requirement that relates solely to crime itself), and 2C:1-14(h)(a) and (b) (stating that "element of the offense" includes "conduct" that is part of "definition of the offense" and also "establishes the required kind of culpability"); N.J.S.A. 2C:2-2(a) (stating that no person can be guilty of offense "unless he acted purposely, knowingly, recklessly, or negligently as the law may require, with respect to each material element of the offense"); State v. Gerald, 113 N.J. 40, 141 (1988) (O'Hern, J., concurring) ("The material elements of an offense vary in that they may involve (1) conduct per se, (2) the attendant circumstances of conduct, or (3) the result of conduct.").
When the Legislature enacted the "Comprehensive Drug Reform Act of 1986," L. 1987, c. 106, it included a statement of policy that is set forth at N.J.S.A. 2C:35-1.1. That statement declares in part that
to be effective, the battle against drug
abuse and drug-related crime must be waged
aggressively at every level along the drug
distribution chain, but in particular, our
criminal laws must target for expedited
prosecution and enhanced punishment those
repeat drug offenders and upper echelon
members of organized narcotics trafficking
networks who pose the greatest danger to
society. . . . [T]o ensure the most efficient
and effective dedication of limited
investigative, prosecutorial, judicial and
correctional resources, it is the policy of
this State to distinguish between drug
offenders based on the seriousness of the
offense, considering principally the nature,
quantum and purity of the controlled
substance involved and the role of the actor
in the overall drug distribution network. It
is the intention of the Legislature to
provide for the strict punishment, deterrence
and incapacitation of the most culpable and
dangerous drug offenders.
In Afanador, supra, 134 N.J. 162, this Court held that N.J.S.A. 2C:35-3 is neither facially vague nor vague as applied to the defendant in that case. Justice O'Hern's dissent found the issue of the jury charge that must accompany a drug-kingpin prosecution inseparable from the issue of the validity of the statute as applied. The dissent concluded that the statute as applied was too vague to guide the jury's deliberation and to ensure the proper fulfillment of the jury's function. The dissent found compelling the decision of the Appellate Division in the present case, as well as its interpretation of the statute and proposed jury instruction conforming to that interpretation. Because an instruction of the sort spelled out by the Appellate Division had not been given to the jury in this case, that court concluded that the jury, although it had convicted defendant, "did not determine whether defendant's status and activities warranted the punishment [that] the Legislature has reserved for
a 'leader of a narcotics trafficking network.'" Id. at 111. We
agree.
The State argues that in a prosecution for violating
N.J.S.A. 2C:35-3, to include as part of the basic definition and
as a specific element of the crime in the jury instructions any
reference to the role of the defendant as an "upper echelon
member" in the overall drug-distribution network improperly
redefines the statutory crime. It reasons that the inclusion of
that element is at odds with the elements of the offense that are
set forth in N.J.S.A. 2C:35-3. Thus, the State contends that the
Appellate Division's proposed instruction rewrites the drug-kingpin statute by requiring the State to prove beyond a
reasonable doubt a material element that the Legislature did not
include in its definition of the offense.
N.J.S.A. 2C:35-3 does not include some of the important
factors used in the statutory statement of purpose to describe
the drug-kingpin crime, and, to that extent, does not completely
convey the full legislative understanding in creating this crime.
The statement of purpose expressly makes the defendant's "upper-level" role in a drug network central to the activity
criminalized by the Legislature. The prominence of the upper-level status of the defendant in the description and explanation
of the purpose of the crime clearly evidences the Legislature's
intent that the status or the position of the defendant in the
drug trafficking network is a substantive part of the crime.
Consistent with that intent, the status or position of the
defendant should be considered a material element of the crime.
Accordingly, we conclude that a trial court, in a prosecution
pursuant to N.J.S.A. 2C:35-3, should instruct the jury that it
must find that the defendant occupies a high-level position, that
is, a position of superior authority or control over other
persons, in a scheme or organization of drug distribution (or
manufacture or dispensing or transporting), and that in that
position the defendant exercised supervisory power or control
over others engaged in an organized drug-trafficking network.
That conclusion is based largely on the fact that the words
of the statute alone under N.J.S.A. 2C:35-3, whether their
meaning is "plain" or "clear" for constitutional purposes,
without any further explanation would not fully convey to the
jury the nature of the actual elements of the conduct that the
Legislature intended to criminalize. Those elements, in addition
to the activities enumerated in N.J.S.A. 2C:35-3, such as
supervision, management, financing, and the like, include the
role of the defendant as an "upper-level member" of a drug
operation.
The recognition of the upper-level position of the defendant
as an essential element of the crime under the drug-kingpin
statute does not, as the State believes, entail a rewriting of
the statute.
This Court has made abundantly clear that correct jury
instructions are at the heart of the proper execution of the jury
function in a criminal trial: "'[a]ppropriate and proper charges
to a jury are essential for a fair trial.'" State v. Collier,
90 N.J. 117, 122 (1982) (alteration in original) (quoting State v.
Green,
86 N.J. 281, 287 (1981)). A court's obligation properly
to instruct and to guide a jury includes the duty to clarify
statutory language that prescribes the elements of a crime when
clarification is essential to ensure that the jury will fully
understand and actually find those elements in determining the
defendant's guilt.
For the purpose of instructing and guiding juries, courts
regularly explain and define statutory language consistent with
legislative intent. Courts commonly clarify statutory language
to give more precise meaning to statutory terms to effect the
legislative intent and to make sure that juries carry out that
intent in determining criminal culpability. For example, in
State v. Butler,
27 N.J. 560, 593-94 (1958), the trial court
instructed the jury in a felony-murder case on the elements of
felony murder, but failed to define "robbery," a term used in the
felony murder statute, N.J.S.A. 2A:113-1. We found that the
right to such a definitional instruction was "absolute." Id. at
596. As we noted in Butler, "The classical practice generally
followed in criminal cases is for the judge to outline the
applicable law, explaining and defining the offense charged. . .
." Id. at 594 (emphasis added). "The criminal law cannot be
administered justly or efficiently if the jury is allowed to
speculate as to what conduct the law intended to proscribe by a
specified crime." Id. at 595.
Courts follow that approach even when statutory terms have
common or well-understood meanings based on ordinary experience.
In a prosecution under N.J.S.A. 2C:35-5 for possession of a
controlled dangerous substance (C.D.S.) with the intent to
distribute, for example, the model jury instruction includes a
long definition of a relatively common term -- "possession."
Model Jury Charges (Criminal), § 2C:2-1 Possession (Oct. 17,
1988). That definition of possession does not appear anywhere in
N.J.S.A. 2C:35-5. Rather, the definition reflects this Court's
numerous expositions of the meaning of "possession." The model
jury instruction's definition of "possession" includes the
situation in which a person "is aware of the presence of the
[C.D.S.] and is able to exercise intentional control or dominion
over it." Ibid. The language of "intentional control or
dominion" comes not from the literal language of N.J.S.A. 2C:35-5
but from this Court's interpretation of that statute. See State
v. Davis,
68 N.J. 69, 82 (1975) ("Possession signifies
intentional control and dominion. . . ."). In State v. Brown,
80 N.J. 587, 600 (1979), we upheld a challenge to a trial court's
instruction because it was "clear from a reading of the trial
court's instructions in their entirety that all of the essential
elements of the crime of possession were explained to the jury."
(Emphasis added.) A mere recitation of the statute would have
been inadequate. See also Town Tobacconist v. Kimmelman,
94 N.J. 85, 104 (1983) (redefining statutory term, "drug
paraphernalia" in Drug Paraphernalia Act because it would
otherwise confuse jury).
Further, statutes containing words whose meanings are
ordinary and understandable often require a judicial
determination with respect to their intended scope of
application. State v. Thomas,
132 N.J. 247, 254 (1993) (defining
use of school property for school purposes as "essential element"
of school-zone drug offense); State v. Ivory,
124 N.J. 582, 587-92 (1991) (defining property that constitutes "school property
used for school purposes" for purposes of school-zone drug
offense); see also State ex rel. M.T.S.,
129 N.J. 422 (1992)
(finding that legislative history was relevant to understanding
of legislative intent that principles of criminal assault were
relevant in defining element of force and role of consent for
crime of second-degree sexual assault).
Moreover, when a criminal statute is somewhat ambiguous
regarding the scope of its application, the ambiguity cannot
inure to the benefit of the State. In State v. Sein,
124 N.J. 209 (1991), we determined whether the "snatching" of a purse
constituted the use of "force upon another" required for a
conviction under the robbery statute N.J.S.A. 2C:15-1a(1). We
relied on our understanding of the legislative intent to strike
down the purse-snatching conviction under the statute. Id. at
217-18.
In State v. Sewell,
127 N.J. 133 (1992), another case
involving the interpretation of the robbery statute, we looked at
a separate statutory provision (N.J.S.A. 2C:2-2c(3), known as the
"gap-filling provision") to ascertain the requisite mental state
intended by the Legislature for the crime of second-degree
robbery. In so doing, we struck down a jury charge that did not
"fully explain the essential elements of robbery." Id. at 150.
The charge as rejected, like the charge employed by the trial
court here, was faithful to the language of the relevant statute.
However, the faithfulness to the literal language of the statute
did not convey the clear intent of the Legislature as expressed
elsewhere in the statutory framework. Here, as in Sewell, the
Legislature has expressly provided a fuller explication of its
otherwise skimpy articulation of the conduct it intended to
criminalize. The proper path is simply to embrace the clearly
expressed intent of the Legislature. In this case, a fuller
definition of the statutory terms that is consistent with the
legislative intent can readily be achieved because the
Legislature has itself expressed the relevant terms more fully in
N.J.S.A. 2C:35-1.1. We need not guess about what the Legislature
intended.
An instruction that makes explicit the implicit elements of
the crime does not involve rewriting the statute or redefining,
modifying, amending, or adding to the substantive elements
prescribed by the statute because that instructional definition
conforms to the legislative intent and carries out that intent.
Thus, a proper instruction should, in addition to reciting the
statutory language of N.J.S.A. 2C:35-3, at least inform the jury
that it must find that the defendant occupies a high-level
position of authority in the scheme of distribution (or
manufacture or dispensing or transporting, as the evidence may
permit). A court should instruct the jury that a defendant's
position and status must be at a superior or high level in
relation to other persons in the drug trafficking network and
that the defendant's role must be that of a "leader" in the drug
organization or system and, in that capacity, the defendant
exercised supervisory power or control over others engaged in the
organized drug-trafficking network.
The Appellate Division also would define the term "high-level" or "upper-echelon," as follows: "An 'upper' level is a
level [that] is superior to street-level distributors and to
their immediate supervisors or suppliers." 264 N.J. Super. at
111. The dissent in Afanador concluded that that aspect of the
Appellate Division's formulation of the substantive elements of
the crime was not correct. See 134 N.J. at 185 (O'Hern, J.,
dissenting). We now also disapprove that proposed instruction.
Under the statute a drug-trafficking network need not have any
specific configuration or chain of command. Such a network is
not to be understood primarily or exclusively as a vertical, in
contrast to a horizontal, organization. Rather, it is to be
considered as an organization of persons who are collectively
engaged in drug activities. A "high-level" or "upper-echelon"
"leader" of such an organization is one who occupies a
significant or important position in the organization and
exercises substantial authority and control over its operations.
Neither the specific elements enumerated in the provisions of
N.J.S.A. 2C:35-3 nor the additional requirements extrapolated
from the statute's statement of purpose indicate that a drug
operator exercising authority and controlling other people in an
organization or network, even at the street level, could not be a
"leader" or "drug kingpin" within the contemplation of the
Legislature. Rather, the role of a defendant as a leader or drug
kingpin turns more on the nature of that person's authority, the
magnitude or extent of control, and the number of persons over
whom that power is exercised.
An appropriate instruction should also amplify the other
statutory terms that are expressed as material elements of the
crime under N.J.S.A. 2C:35-3. Thus, the statutory terms
"organizer, supervisor, financier or manager" should be explained
so that the meaning of those terms is more fully understood by
the jury. For example, the court might define an "organizer" as
a person who arranges, devises, or plans a drug-trafficking
network; a "supervisor" as one who oversees the operation of a
drug-trafficking network; a "financier" as one who is responsible
for providing the funds or resources necessary to operate a drug-trafficking network; and a "manager" as one who directs the
operations of a drug-trafficking network.
We affirm so much of the judgment of the Appellate Division as reverses defendant's conviction and remands for a new trial. We modify the terms of the remand with respect to the proper jury charge.
Justices Pollock, O'Hern, and Stein join in this opinion.
Justice Clifford has filed a separate dissenting opinion in which
Chief Justice Wilentz and Justice Garibaldi join.
SUPREME COURT OF NEW JERSEY
A-
126 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RYAN LEE ALEXANDER,
Defendant-Respondent.
CLIFFORD, J., dissenting.
This Court does not have to love a statute, but we do have
to apply it unless it is invalid. I fear that the majority's
hostility to the enactment that the Legislature has given us has
caused the Court to rewrite the "drug kingpin" statute -- an
illicit exercise bad enough in itself, made worse by the Court's
botching of a job for which it is demonstrably ill-suited.
I would apply the statute as written and would reinstate the
conviction of this $1500-to-$9000-per-week drug entrepreneur as a
"leader of a drug trafficking network."
Earlier this term a unanimous Court upheld the "drug
kingpin" statute, N.J.S.A. 2C:35-3 (section 35-3), against a
charge of facial vagueness. See State v. Afanador,
134 N.J. 162,
175 (1993). Afanador's attack on the statute centered on its
"requirement that a defendant conspire as 'organizer, supervisor,
financier or manager' of [a] drug-trafficking network." Id. at
171 (quoting section 35-3). In rejecting that attack we agreed
with courts elsewhere that "a person of average intelligence
comprehends the meaning" of those words. Ibid. We were all
satisfied then -- and I remain so now -- that section 35-3
"describes the elements of the offense in common, well-understood
terms * * * used by ordinary citizens in everyday conversation."
Id. at 175. That feature distinguishes this case from the
authorities on which the Court relies, ante at ___-___
(slip op. at 12-14), all of which involve legal terms of art and
their definitions.
Plain as the statutory language was a few short months ago,
according to the majority today it does not quite do the job. We
are told that "without any further explanation" the words of
section 35-3 alone "would not fully convey to the jury the nature
of the actual elements of the conduct that the Legislature
intended to criminalize." Ante at ____ (slip op. at 10). And
so, relying on a separate statutory section, N.J.S.A. 2C:35-1.1
(section 35-1.1), the court has added to section 35-3's list of
criminal elements yet another "essential element of the crime
under the drug-kingpin statute," ante at ___ (slip op. at 10),
characterized variously as a defendant's "high-level position" in
the nefarious scheme, ante at ___ (slip op. at 9), or a
defendant's "role * * * as an 'upper-level member' of a drug
operation," ante at ___ (slip op. at 10).
Reliance on section 35-1.1 as justification for the court's
stunning addition of a defendant's "upper-level position" as "an
essential element of the crime under the drug-kingpin statute,"
ante at ___ (slip op. at 10) (emphasis added), is badly
misplaced. Section 35-1.1c, quoted in essential part in the
majority opinion, ante at ___ (slip op. at 7-8), does nothing
more than set forth the Legislature's findings and its
declaration of public policy. Section 35-1.1c does not
criminalize any conduct, define any elements of any offense,
provide for any penalties, or otherwise display any of the
identifying features of a criminal statute. Those functions are
left to N.J.S.A. 2C:35-2 to -16, in which the Legislature got
down to the business of defining and grading the related criminal
offenses. Section 35-1, which precedes those sections, is only
what it purports to be, nothing more: a statement, an
announcement of the Legislature's intent in creating certain
crimes and prescribing the penalties therefor, an identification
of the targets at which the Comprehensive Drug Reform Act of
1986, L. 1987, c. 106, is aimed.
Facing the dilemma created when the Legislature writes a statute whose operative provisions are crystal clear but whose operative provisions may not conform with the Legislature's explicit statement of legislative purpose, the Court attempts to remedy the situation by rewriting the operative provisions. We will never know why the Legislature, having so clearly indicated its intention that the statute should apply only to high-level drug dealers, went on to define the crime in a way that would
permit conviction of drug dealers at a lower level. What we do
know, however, is that one part of the statute is a declaration
of legislative intent and purpose, not a definition of a crime,
and that another section of the statute is unmistakably the
definition of the crime. The crime defined is "leader of
narcotics trafficking network." The Legislature says so:
"leader of narcotics trafficking network is a crime of the first
degree and upon conviction thereof * * * a person shall be
sentenced to an ordinary term of life imprisonment during which
the person must serve 25 years before being eligible for parole."
That is the crime. The Legislature also left no doubt about the
elements of that crime:
A person is a leader of a narcotics
trafficking network if he conspires with
others as an organizer, supervisor, financier
or manager, to engage for profit in a scheme
or course of conduct to unlawfully
manufacture, distribute, dispense, bring into
or transport in this State methamphetamine,
lysergic acid diethylamide, phencyclidine or
any controlled dangerous substance classified
in Schedule I or II, or any controlled
substance analog thereof.
One need not twist and turn to figure out what the Legislature meant by "leader of a narcotics trafficking network." It is there in black and white. The crime is named by the Legislature "leader of a narcotics trafficking network," and the crime is defined by the Legislature. As much as section 35-3 may not conform to section 35-1.1c's statement of legislative purpose and intent, that circumstance is for the Legislature, not for this Court, to remedy; for when this Court attempts to remedy it, as no case better shows than this, the Court drafts a new
statute. Whether that new statute comes closer to the
legislative intent or wanders farther from it is immaterial. The
important point is that the Court's gratuitous and painfully
inept amendment now becomes the law -- not of the people of New
Jersey, not of the Legislature, but of this Court.
But, says the Court, a jury is left in the dark by a charge
that simply instructs in the language of the criminal statute, as
recommended by the Model Jury Charge, see Model Jury Charges
(Criminal), § 2C:35-3 -- Leader of Narcotics Trafficking Network
(Oct. 17, 1988), and as dutifully delivered by the trial court in
this case. And so, to pierce the newly-developed fog of language
that just nine months ago communicated the elements of "leader of
a drug-trafficking network" in "common, well-understood terms,"
Afanador, supra, 134 N.J. at 175, the Court declares that in
addition to reciting the statutory language of section 35-3, the
trial court must "at least inform the jury that it must find that
the defendant occupies a high-level position of authority in the
scheme of distribution * * * ." Ante at ___ (slip op. at 14).
Presumably as a definition of what it means by "a high-level
position of authority," the Court, in the very next sentence,
rules that a trial court should instruct the jury that a
"defendant's role must be that of a 'leader' in the drug
organization or system and, in that capacity, the defendant
exercised supervisory power or control over others engaged in the
organized drug-trafficking network," ante at ___ (slip op. at 14-15) -- an almost verbatim repetition of the definition provided
earlier, in the Court's explanation of why a defendant's "upper-level" role in a drug network is "a substantive part of the
crime." Ante at __ (slip op. at 9).
Stop right there. Either the court has added a new element
-- high-level position of authority -- to the criminal offense,
or it has introduced a requirement for a "clarifying" jury
instruction whose most conspicuous attribute is a limitless
potential for jury confusion and for production of inconsistent
verdicts on similar facts. Either result is assiduously to be
avoided.
I tend to think that the majority rewrites the statute and redefines the elements of the offense by engrafting a declaration of legislative policy onto the operative or criminalizing section. Most of the discussion thus far seeks to support that conclusion. But assuming that the Court's endeavor is only to give more complete definition to the Legislature's terms, without adding any essential elements to the offense itself, that effort has, I suggest, produced more chaos than clarification. The majority unearths no novel concept, clarifies nothing, illuminates no shadowy corners of the "drug-kingpin" statute by declaring that in a prosecution under that statute the State must demonstrate that the defendant occupies "a position of superior authority or control over other persons * * * and that in that position the defendant exercised supervisory power or control over others engaged in an organized drug-trafficking network." Ante at ___ (slip op. at 9-10). As we made abundantly clear in Afanador, supra, that is precisely what the State proves when it
shows that the defendant is a leader of a narcotics-trafficking
network:
The clear implication of "organizer,"
particularly in a statute dealing with a
"leader" of a drug-trafficking network, is
that the term describes a person who
exercises some supervisory power over others.
That becomes even clearer when the expression
appears in the same context as the words
"supervisor, financier or manager," for those
words also connote some degree of control
over another person's actions. The meaning
ascribed to the words used in a statute may
be indicated or controlled by the words with
which it is associated. Here, the inclusion
of the word "organizer" among other terms
denoting authority to direct the acts of
another obviously indicates that it carries a
similar connotation, namely, the primary
meaning of "organizer" in common usage.
The casual purchaser will not ordinarily
constitute one of the "others" with whom a
defendant conspires, because in most cases a
street distributor does not direct or
supervise a drug buyer. Although a dealer
may inform a buyer how to complete the
transaction, he or she has no authority over
the buyer. Therefore, to violate the kingpin
statute a defendant must direct the actions
of at least two other persons other than the
person to whom the defendant sells the drugs.
Because street-level dealers ordinarily lack
any supervisory power over their suppliers or
buyers, the statute does not transform every
dealer into a kingpin.
If, however, a defendant sells a quantity
of drugs to a person who intends to resell
those drugs and the defendant has some
supervisory power over the reseller, that
reseller is one of the "others" with whom the
defendant has conspired. That result
comports with the Legislature's expressed
intention to target "upper-echelon" members
of a drug-trafficking network, because in
that instance the defendant has conspired
with the reseller as an organizer,
supervisor, manager, or financier.
[134 N.J. at 172, 173 (emphases
added) (citation omitted).]
Although we held in Afanador that section 35-3's operative
or criminalizing terms were readily understood as matters of
common parlance, I would have no objection to a recommendation
that henceforth in a "drug kingpin" prosecution trial courts
would do well to spoon-feed the jury with a discussion, similar
to that quoted above from Afanador, of the meanings of those
terms. But surely I would not hold that the absence of any such
discussion constituted plain error.
What, then, are we to make of the Court's holding that the
trial court here committed plain error in failing to instruct the
jury that defendant occupied a "high-level" or "upper-echelon"
position? Furnishing no definition of those terms other than by
building on Afanador's common-usage notions of "supervisory
power" and "control," and in fact rejecting (correctly) the
Appellate Division's definition, ante at __ (slip op. at 15), the
Court leaves jurors at sea, with no judicial guidance on how they
should determine whether the defendants in the cases before them
are "high-level" or "upper-echelon" players in the drug-trafficking scheme. Those terms, unlike the language of section
35-3, are not terms of the street, not in common usage.
Including them as elements of a criminal statute in which they
nowhere appear represents judicial mucking about in an area in
which we have neither authority nor competence.
I would reverse and remand to the Law Division for
reinstatement of defendant's conviction for violation of the
"drug kingpin" statute.
Chief Justice Wilentz and Justice Garibaldi join in this dissenting opinion.