On certification to the Superior Court, Appellate Division, whose opinion is reported at 264 N.J. Super. 102 (1993).
Handler, Pollock, O'Hern, Stein, Clifford, Wilentz, Garibaldi
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, 631 A.2d 946 (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 "'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," id. at 111, and should define "'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 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 "engrafting 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, 549 A.2d 792 (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. . . . To 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 ...