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State v. Burgess

February 18, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LLOYD BURGESS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

Approved for Publication February 20, 1997. As Revised February 25, 1997. Second Revision March 27, 1997.

Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Pressler, P.j.a.d. Humphreys, J.A.D. Dissenting.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

In State v. Alexander, 136 N.J. 563, 643 A.2d 996 (1994), the New Jersey Supreme Court mandated definitional jury instructions in a prosecution under N.J.S.A. 2C:35-3, the drug-kingpin statute, which became effective July 1987. The issue before us is whether the rule articulated by Alexander should be accorded retroactive effect in post-conviction relief proceedings that challenge a kingpin conviction which became final prior to Alexander. We conclude, under all the circumstances before us, that since those required instructions define elements of the kingpin offense, a kingpin conviction unsupported by a proper charge to the jury is vulnerable to attack on that ground by way of collateral review of a final judgment of conviction. We reach that Conclusion irrespective of whether the usual standards for post-conviction relief alone apply or whether Alexander is deemed to constitute a "new rule," requiring a retroactivity analysis as well. Accordingly, we reverse the order appealed from denying the application of defendant Lloyd Burgess for post-conviction relief on Alexander grounds and remand for a new trial.

Chronology is critical to our reasoning. Defendant Lloyd Burgess was convicted under the drug kingpin statute prior to the decision of this court in State v. Alexander, 264 N.J. Super. 102, 624 A.2d 48 (App. Div. 1993), affirmed by the Supreme Court the following year, 136 N.J. 563, 643 A.2d 996 (1994), in which we held that specified explanations of "upper echelon member" and "organized drug trafficking network" were essential in order to guide the jury's determination that "defendant's status and activities warranted the punishment which the Legislature has reserved for a 'leader of a narcotics trafficking network.'" Alexander, (supra) , 264 N.J. Super. at 111. Defendant Burgess' unsuccessful direct appeal, in which the issue of inadequate instructions was not raised, was also decided before this court's opinion in Alexander. Defendant's petition for certification was denied prior to the Supreme Court's Alexander opinion. State v. Burgess, 134 N.J. 566, 636 A.2d 523 (1993). In December 1994, following the Supreme Court's Alexander decision the previous July, defendant filed a petition for post-conviction relief raising, among other issues, the contention that the trial court's failure to give an Alexander charge deprived him of his constitutional due process right to a fair trial. The petition was dismissed, and defendant appeals.

For purposes of these post-conviction proceedings, the facts require only brief reference. The State produced evidence at trial that defendant was involved in a cocaine-trafficking scheme with at least four other persons. Two were street dealers, one assisted in breaking down larger quantities of cocaine into sales units and at times made purchases of cocaine for defendant in New York, and the fourth was defendant's girlfriend, who assisted in supplying the street dealers. All four, apparently addicts, received at least part of their payment in cocaine. Based on the foregoing evidence, the jury convicted defendant under the kingpin statute of conspiracy to distribute cocaine, and of twenty-four drug-distribution and possession crimes. The remaining convictions were all merged into eight distribution convictions, two second-degree and six third-degree. Sentences of seven years on each of the second-degree convictions and of four years on each of the third-degree convictions were imposed, all to run concurrently with the life term.

With respect to the kingpin charge, the Judge instructed the jury in the language of N.J.S.A. 2C:35-3, following the then model jury charge *fn1 and telling the jury that in order to convict under the statute, it had to find that defendant was "an organizer, supervisor, financier or manager" *fn2 in a drug trafficking conspiracy and occupied "a high level position in the conspiracy." It was precisely the charge that we held in Alexander to be inadequate to sustain a kingpin conviction. That is to say, although we were satisfied that the kingpin statute is not facially void for vagueness, we nevertheless concluded that its application was subject to impermissible overbreadth absent the qualifications and explanations set forth in N.J.S.A. 2C:35-1.1c which, we held, define the status and conduct intended by the Legislature to be subject to kingpin punishment. Accordingly, we prescribed specific and discrete definitions of "a leader of a narcotics trafficking network" to convey to the jury the necessity of defendant's status as an "upper echelon member" of an organized "drug trafficking network" and to give the jury a better sense of the proscribed activity. Alexander, (supra) , 264 N.J. Super. at 110-111.

Following this court's Alexander opinion and while certification proceedings were pending on the State's petition in that case, the Supreme Court addressed the kingpin statute for the first time since its 1987 enactment in State v. Afanador, 134 N.J. 162, 631 A.2d 946 (1993). The sole issue the Court considered was the statute's asserted unconstitutional vagueness, both facially and as applied to defendant. A majority of four concluded that N.J.S.A. 2C:35-3 withstood that challenge. The three Dissenters, for whom Justice O'Hern spoke, took a different approach. Recognizing the overbreadth problem, they were of the view that "the statute was applied unconstitutionally because it was applied too vaguely to guide the jury's function," a defect which, they concluded, could be cured by the discrete and specific "upper echelon" and "drug trafficking network" explanations prescribed by us in Alexander. Afanador, (supra) , 134 N.J. at 185 (O'Hern, J., Dissenting). In sum, the Dissent was persuaded that the content of the jury charge is inescapably linked to the constitutionality of the statute since only a properly limiting charge, and more particularly the charge we mandated in Alexander, could save the statute from unconstitutional overbreadth. The response of the Afanador majority was simply to assert that the question of the jury charge was not before it, that the statute stood independently of the Alexander charge, and that it was inappropriate for the Dissent to rely on an Appellate Division opinion while certification proceedings were still pending. 134 N.J. at 179.

A year later, on July 19, 1994, the Supreme Court decided Alexander, the majority now substantially adopting the views both of the Appellate Division and of the Afanador Dissenters. *fn3 That is to say, the Court, now conceding the inherent ambiguity of N.J.S.A. 2C:35-3, concluded that

the prominence of the upper-level status of the defendant in the description and explanation of the purpose of the crime [as set forth in N.J.S.A. 2C:35-1.1c] 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. [Alexander, (supra) , 136 N.J. at 570.]

Accordingly, it held that "the status or position of the defendant should be considered a material element of the crime," requiring, in accordance with the legislative intent articulated by N.J.S.A. 2C:35-1.1c, albeit not expressly reiterated in N.J.S.A. 2C:35-3, inclusion of the definitional element of "the role of the defendant as an 'upper-level member' of a drug operation." Alexander, (supra) , 136 N.J. at 570-571. Rejecting to some extent the specificity of the definition prescribed by us in Alexander, the Supreme Court instructed as follows with respect to the requisite charge to the jury:

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. [Id. at 575.]

A conforming revised model jury charge was adopted on February 26, 1996. See New Jersey Model Jury Charges, Criminal, Leader of Drug Trafficking Network, N.J.S.A. 2C:35-3 (February 26, 1996).

Defendant, of course, did not have the benefit at trial of that "upper-echelon" or "high-level" instruction. The question now is whether that omission is subject, both procedurally and substantively, to collateral attack by way of a petition for post-conviction relief entitling defendant to a new trial.

To begin with, we reject the State's contention that the petition is procedurally precluded under R. 3:22-4, which bars assertion by way of post-conviction petition of a ground for relief not raised on direct appeal or in a prior petition. The rule relieves defendant from that bar if "denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." R. 3:22-4(c). As we held in State v. Cupe, 289 N.J. Super. 1, 8, 672 A.2d 1233 (App. Div.), certif. denied, 144 N.J. 589 (1996), a "genuinely alleged serious defect in the jury charges will circumvent the procedural prohibition." Clearly, such a defect implicates a claim of constitutional dimension and, just as clearly, this is such a case.

It is, of course, well settled that "correct jury instructions are at the heart of the proper execution of the jury function" and are essential for a fair trial. Alexander, (supra) , 136 N.J. at 571. See also State v. Brown, 138 N.J. 481, 522, 651 A.2d 19 (1994); State v. Martini, 131 N.J. 176, 271, 619 A.2d 1208 (1993); State v. Clausell, 121 N.J. 298, 318-319, 580 A.2d 221 (1990); State v. Collier, 90 N.J. 117, 122, 447 A.2d 168 (1982) (quoting State v. Green, 86 N.J. 281, 287, 430 A.2d 914 (1981)). It is also clear that a charge which fails properly to define the substantive elements of the offense is ordinarily fatal to the ensuing conviction. State v. Rhett, 127 N.J. 3, 7, 601 A.2d 689 (1992); State v. Weeks, 107 N.J. 396, 410, 526 A.2d 1077 (1987). There is, therefore, no doubt that had this trial taken place after the Supreme Court's decision in Alexander, the omission of the prescribed charge would have constituted plain error cognizable on appeal and requiring a new trial. See Brown, (supra) ; Clausell, (supra) ; State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990); State v. Harmon, 104 N.J. 189, 213, 516 A.2d 1047 (1986); State v. Simon, 79 N.J. 191, 206, 398 A.2d 861 (1979); State v. Hock, 54 N.J. 526, 538, 257 A.2d 699 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). The issue is whether the rules of retroactivity preclude this defendant, who challenges the omission on post-conviction petition, from being accorded the same remedy. We are persuaded that they do not.

The retroactivity of judicial holdings affecting the conduct of criminal trials is a complex issue implicating significant but competing jurisprudential doctrines which can, in the main, be summarized as the interest in fundamental fairness on the one hand and the interest in finality on the other. The weighing of the balance between them is, in actuality, primarily dependent on whether the retroactivity issue arises in the pre-finality stage of the criminal proceedings, that is, prior to the exhaustion of direct review, or whether it arises thereafter by way of collateral attack in a post-conviction proceeding. The subject, in our view, is rendered even more complex by the apparent divergence of retroactivity jurisprudence between the federal courts, in which direct versus collateral attack is the bright-line determinant of retroactivity, and the New Jersey courts, which have not expressly acknowledged the doctrinal implications of that distinction.

Some historical reference is necessary. An instructive starting point in understanding the United States Supreme Court's modern retroactivity jurisprudence is Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), in which the Court denied collateral-attack retroactivity to the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), essentially on the ground of the inevitable and obvious burdens on the judicial process that would ensue from a post-finality retroactivity holding was not outweighed by the fundamental purpose of the Mapp rule. Linkletter was followed several years later by Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), involving, also in the context of collateral attack, the retroactivity of the defendant-identification rules enunciated by United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). It was in Stovall that the Court, relying on Linkletter and its intervening decision in Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), articulated the three-prong test for determining retroactivity that dominated federal retroactivity jurisprudence for the next twenty years and still, apparently, dominates New Jersey's. The elements of that test were defined as

(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of Justice of a retroactive application of the new standards. [Stovall, (supra) , 388 U.S. at 297, 87 S. Ct. at 1970, 18 L. Ed. 2d at 1203.]

The underlying rationale for this test, the Court explained, is the understanding that

"the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of Justice, and the way in which these factors combine must inevitably vary with the dictate involved." [Ibid. (quoting Johnson, (supra) , 384 U.S. at 728, 86 S. Ct. at 1778, 16 L. Ed. 2d at 889).]

Of course, at least up to this point, the foundation predicate for the Stovall analysis required that the judicial holding that was the subject of the retroactivity analysis be a "new rule," that is, a rule generally described as one both unanticipated and constituting a clean break with the past. See, e.g., United States v. Johnson, 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579, 2586, 2587, 549-550, 73 L. Ed. 2d at 202, 213-214 (1982). We think it plain that if the judicial holding in question were not to qualify as a new rule, then retroactivity analysis would be irrelevant and the availability of the holding to a convicted defendant would be circumscribed, as in the case of any other omitted defense theory or argument, by other relevant doctrines including the plain-error rule and the customary standards for the grant of post-conviction relief.

The demise of the Stovall new rule/three-prong test was foreshadowed by Justice Harlan's Concurring and Dissenting opinions in Desist v. United States, 394 U.S. 244, 256, 89 S. Ct. 1030, 1038, 22 L. Ed. 2d 248, 259 (1969), and Mackey v. United States, 401 U.S. 667, 675, 91 S. Ct. 1160, 1171, 28 L. Ed. 2d 404, 410 (1971) (Harlan, J., Concurring in judgments and Dissenting). Simply stated, in Justice Harlan's view the essentially ad hoc application of the Stovall test, not only in post-finality cases but also, as it had developed, in pre-finality cases as well, was jurisprudentially unsound on a number of grounds, primary among them being the denial of similar relief to defendants similarly situated. As he saw it, every announced rule of law, whether or not new in the Stovall context, should be available to every defendant whose conviction is not yet final in the sense of exhaustion of direct review. In his view, however, the interests of finality become paramount once the conviction has become final, and hence, on collateral attack, retroactivity should be accorded to a new rule only when the rule decriminalizes the conduct that was the basis of the conviction or where the new rule prescribes procedures that are "implicit in the concept of ordered liberty." Mackey, (supra) , 401 U.S. at 693, 91 S. Ct. at 1180, 28 L. Ed. 2d at 421.

In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the Supreme Court finally abandoned the Linkletter-Johnson-Stovall approach, expressly adopting the views of Justice Harlan as expressed in Desist and Mackey. Griffith drew a clear and dramatic distinction between direct review and collateral attack and recognized that in direct-review cases, the "selective application of new rules" that had resulted from the Stovall approach "violates the principle of treating similarly situated defendants the same." Griffith, (supra) , 479 U.S. at 323, 107 S. Ct. at 713, 93 L. Ed. 2d at 658. Griffith accordingly held that

a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past. [ Id., 479 U.S. at 328, 107 S. Ct. at 716, 93 L. Ed. 2d 661.]

Of significance, too, is Griffith's further observation that while the Stovall three-prong test no longer applied for purposes of direct-review retroactivity analysis, nevertheless, the second and third prongs, namely, reliance by law enforcement officials and the burden of the administration of Justice, continued to be useful in the post-finality context. 479 U.S. at 326-327, 107 S. Ct. at 715, 93 L. Ed. 2d at 661.

For present purposes, we conclude the federal story with Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). Reemphasizing the direct-review rule of Griffith, the Court expressly adopted Justice Harlan's statement of standards for according retroactivity on collateral attack, making clear that in that context, the threshold inquiries are first, determination of the date of finality of the conviction and then determination of whether the announced rule was new in the "clean break" sense.

That brings us to New Jersey's retroactivity jurisprudence. Prior to Griffith, the New Jersey Supreme Court followed Linkletter-Johnson-Stovall, reserving to itself the power to determine the extent of retroactivity of a new rule of law, applying the three-prong test, and not distinguishing, in a dispositive way, between direct review and collateral attack. See, e.g., State v. Burstein, 85 N.J. 394, 427 A.2d 525 (1981); State v. Howery, 80 N.J. 563, 404 A.2d 632, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979); State v. Nash, 64 N.J. 464, 317 A.2d 689 (1974). The Court's first post-Griffith address of retroactivity came in State v. Lark, 117 N.J. 331, 567 A.2d 197 (1989), a post-conviction relief case in which the issue was the retroactivity of State v. Howard, 110 N.J. 113, 539 A.2d 1203 (1988), where the Court had held that prior to accepting a guilty plea from a sex-offender, the trial Judge must advise him of the parole consequences of a sentence to the Adult Diagnostic and Treatment Center at Avenel. The Court rejected retroactivity, applying the traditional three-prong test without explicitly considering its intervening abandonment by Griffith-Teague or the analytic rationale and policy bases underlying that abandonment. *fn4 Nor did Lark draw a bright-line distinction between direct review and collateral attack. Nevertheless, it is clear that without expressly having done so, the analysis of Lark closely tracked the Griffith dictum that the second and third Stovall factors remained relevant in deciding collateral-attack retroactivity questions. Indeed, it was based on those factors that Lark denied that retroactivity. Thus, the Court noted that there were 486 potentially affected Avenel inmates and 142 more awaiting admission, that retroactivity would result in several hundred petitions of post-conviction relief, that the pre-Howard practice was of long standing, and that the potentially disruptive effect of retroactivity was not outweighed by any other consideration. Lark, (supra) , 117 N.J. at 341.

Retroactivity was again addressed in State v. Harvey, 121 N.J. 407, 581 A.2d 483 (1990), a capital murder case before the Court on direct appeal in which the retroactivity question involved the holding in State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986), rendered after the Conclusion of defendant's trial and requiring that where a suspect has previously invoked his right to remain silent, fresh Miranda *fn5 warnings must be given before interrogation is resumed. The Court accorded Hartley retroactivity on two grounds. It concluded first that it did not announce a new rule and hence retroactivity was not an issue. It also concluded that retroactivity was required both under Stovall and under Griffith. Its Griffith Discussion was, however, not in terms of whether New Jersey should choose to follow that rule, but rather whether New Jersey was obliged to follow it if the subject of the "new" holding involved a federal constitutional issue.

Most recently, the Court considered retroactivity in State v. Knight, 145 N.J. 233, 678 A.2d 642 (1996), another direct-review case in which the holding in State v. Sanchez, 129 N.J. 261, 609 A.2d 400 (1992)//--again a Miranda pronouncement coming after defendant's trial//--was in issue. Once more, the Court, without drawing a defining distinction between direct review and collateral attack, applied the three-prong test. Although noting Griffith 's rejection thereof, it again did not address the policy or rationale of the Griffith holding or of the Harlan Dissents on which both Griffith and Teague were based. Nevertheless, retroactivity was accorded based on the Stovall test.

We find it significant that although the Court continues to apply Stovall, it reached the same result in these three cases that Griffith -Teague would have required//--namely, the according of retroactivity in the two direct-review cases and the withholding of retroactivity in the collateral-attack case.

We have belabored this parallel federal and state doctrinal development because of its instructiveness in our address of a post-conviction relief retroactivity problem. That is to say, we are satisfied that the Stovall three-prong test remains fully applicable to post-finality situations even if there were any question of its continued validity in direct-review cases, and we are satisfied that that test has been met here. We are also satisfied that the even more restrictive Teague test, the other side of the Griffith coin, which places a paramount value on the importance of finality, is met as well in the circumstances before us.

We address first the "new rule" issue, which, although no longer relevant under Griffith, is of critical importance in the post-conviction situation under both Stovall and Teague. It is, of course, clear that when the new-rule question is relevant, it is the threshold question in retroactivity analysis. See, e.g., Harvey, (supra) , 121 N.J. at 421; Lark, (supra) , 117 N.J. at 335; State v. Cupe, (supra) , 289 N.J. Super. at 11. It is our view that Alexander did not announce a new rule of law, certainly not in the sense of "a sudden and generally unanticipated repudiation of a long-standing practice." Cupe, (supra) . *fn6 The fact of the matter is that there was no law respecting the elements of the required jury instructions in a drug-kingpin case prior to our 1993 decision in Alexander. No reported opinion had earlier addressed the matter. Moreover, the Supreme Court in Afanador, decided after our opinion in Alexander, expressly declined to consider the question of proper instructions. We are aware that there was a model jury charge, that is, the charge employed in defendant's trial that we held in Alexander to be incorrect. But it is difficult to see how that model jury charge can represent a long-standing practice. We recognize that although a model jury charge is entirely unofficial and does not have the weight of law, *fn7 it could, under appropriate circumstances, be said to evidence a long-standing practice. But that does not appear to be the case here. On February 1, 1990, the date on which the verdict was returned at defendant's trial, N.J.S.A. 2C:35-3 itself was less than three years old and the model jury charge considerably less than two. If a new rule of law can reasonably be said to constitute "a clear break with the past," Lark, (supra) , 117 N.J. at 338, then in order to be new, there must have been an appreciable past from which the rule departs. That, too, does not appear to be the case here. The statute in question, as observed by Alexander, (supra) , 136 N.J. at 568, is "unusually-constructed," its essential elements being elsewhere defined by implication. Because of its inherent ambiguity, the initial challenge was to its constitutionality as written. The intertwining of its constitutionality with the determination of a proper jury instruction was a matter of evolution, consuming a not inordinate time period from statutory enactment to definitive Supreme Court interpretation. The point, of course, is that it is a difficult task, if possible at all, to identify a discrete past within a period of evolution. If, of course, the Alexander holding is not a new rule for retroactivity purposes, then the only question before us would be whether the absence of an Alexander instruction from the charge constituted plain error. We have no doubt that under this analysis, defendant would be entitled to a new trial because of the evident prejudice of the failure of the charge to define critical elements of the crime.

We are, however, satisfied that even if the Alexander charge were deemed to constitute a new rule for retroactivity purposes, it would, as we have said, be available to this defendant on collateral review under both Stovall and Teague. We address first the Stovall factors.

The first of these, namely the purpose of the new standard, is convincingly demonstrated here. We think it clear that there has been a shift of perception by the Court's majority between Afanador and Alexander. Whether or not Alexander can be construed as definitively linking the kingpin statute's constitutionality with the giving of a proper charge, it is at least plain that the Court now conceives of the properly defined "high-level" or "upper-echelon" status of the defendant as an essential element of the offense. We further read Alexander as holding that the legislative intent in enacting the kingpin statute cannot be assured of proper execution absent that element. The purpose of the Alexander charge then, in retroactivity terms, if not to correct a constitutional flaw in the statute, is at least to assure effectuation of the legislative intent of protecting society while at the same time protecting accused persons from being subject to inordinately harsh penalties not meant for them. In our view, any kingpin conviction, other than an irrefutably clear factual case of statutory applicability, is suspect absent the correct charge to the jury.

We are also satisfied that the second and third Stovall factors, namely law-enforcement reliance and burden on the administration of Justice, are met here as well, no matter how broadly those factors are defined and how heavily they are weighted. That is to say, we fully recognize the great potential for inordinate burden on the criminal Justice process if, after direct review has been completed//--and in many cases, long after//--convictions were permitted to be overturned on a wholesale basis, and hundreds, if not thousands, of new trials were ordered at a time when evidence had been lost and witnesses who might still be available had long since forgotten the events in question. We reach the Conclusion that these concerns are not implicated here on a purely statistical basis. Thus, the data provided to us by the Administrative Office of the Courts, Criminal Practice Division, show that between the date of the adoption of N.J.S.A. 2C:35-3 in 1987 and July 19, 1994, when Alexander was decided in the Supreme Court, there were altogether twenty-nine kingpin convictions, of which eighteen were based on guilty pleas and only eleven on jury verdicts. Three of those eleven convicted are ...


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