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State v. Burgess

June 10, 1998


The opinion of the court was delivered by: Per Curiam

Argued March 17, 1998

On appeal to the Superior Court, Appellate Division, whose opinion is reported at 298 N.J. Super. 254 (1997).

Defendant seeks post-conviction relief from his 1990 conviction as a "leader of a narcotics trafficking network" under N.J.S.A. 2C:35-3, which has come to be known as the drug kingpin statute. The trial court sentenced defendant on that count to life imprisonment with twenty-five years of parole ineligibility. Defendant was also convicted on two counts of second-degree and six counts of third-degree drug distribution. The trial court sentenced him to seven years on each of the second-degree convictions and four years on each of the third-degree convictions. All sentences were ordered to run concurrently.

The facts are set forth in the opinion of the Appellate Division reported at 298 N.J. Super. 254 (1997). Defendant and others were engaged in drug trafficking at the Lakewood Housing Authority's projects:

[D]efendant 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.

[Id. at 257.]

Defendant's case was tried, his conviction was affirmed by the Appellate Division, and this Court denied his petition for certification, 134 N.J. 566 (1993), all before this Court announced its decision in State v. Alexander, 136 N.J. 563 (1994). Alexander held that in order to convict under N.J.S.A. 2C:35-3, a jury should be instructed that it must find that a defendant held an "upper-echelon" or "high- level" role as a leader of a drug trafficking network. Alexander, supra, 136 N.J. at 570-71.

The trial court's instructions to the jury tracked the language of the 1988 version of the Model Jury Charge, which called for little more than a recitation of the words of the kingpin statute together with definitions of "conspiracy" and "distribute." New Jersey Model Jury Charges, Criminal, Leader of a Narcotics Trafficking Network, N.J.S.A. 2C:35-3 (Oct. 17, 1988). The charge did not explain that the jury must find that the defendant was an "upper-echelon" leader of the network. The charge did not define terms such as "organizer," "supervisor," "financier," or "manager" in a manner consistent with Alexander.

Defense counsel did not object to the lack of specificity in the trial court's charge, and the trial court's failure to define the terms of the kingpin statute was not a basis of defendant's appeal to the Appellate Division. Defendant did raise the definitional argument in his initial petition for certification to this Court, which he submitted after the Appellate Division filed its decision in State v. Alexander, 264 N.J. Super. 102 (1993). That petition was denied. 134 N.J. 566.

Following our decision in Alexander, defendant filed a pro se petition for post-conviction relief on the ground that the trial court's instruction did not conform to the charge endorsed by this Court in Alexander. The State countered by arguing (1) that Rule 3:22-4 bars post-conviction relief on grounds not raised on direct appeal; (2) that Alexander was not retroactive; and (3) that the State's evidence left no doubt that defendant was a kingpin within the meaning of the statute, so that any error was harmless. The trial court agreed that the challenge to the jury instruction was procedurally barred and that Alexander should not apply retroactively to defendant's case.

On appeal, a majority of the Appellate Division concluded that our decision in Alexander required reversal of defendant's 1990 kingpin conviction, 298 N.J. Super. at 262-72, and that the procedural bar of Rule 3:22-4 should not apply because denial of post-conviction relief would violate constitutional guarantees. Id. at 261. One Judge dissented, finding no legal justification to reverse defendant's well- merited kingpin conviction. Id. at 276 (Humphreys, J., Dissenting). We now affirm the judgment of the majority of the Appellate Division.

The issues in this appeal are (1) whether the principles of Alexander should apply retroactively to a case tried before that decision issued, (2) whether post-conviction relief on the basis of Alexander is barred under Rule 3:22-4, and (3) whether such relief is warranted.


We considered whether the principles of Alexander should be applied to cases tried before that decision in State v. Afanador , 151 N.J. 41, 57-59 (1997) (Afanador II). We there held that Alexander did not create a new rule of law but merely executed the Legislature's intent in passing the drug kingpin statute. Id. at 57. Thus, the question of the retroactivity of our Alexander decision does not arise. Ibid. Nor need we address the application of the federal retroactivity principles that appear in Griffith v. Kentucky, ...

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