the drugs were there, and possessed the same drug in a
bag which he admitted belonged to him.
The court also rejected defendant’s claim, raised for
the first on appeal, that the court had failed to charge an
element of the offense by failing to state specifically that
the weight of the marijuana was an element of the crime
to be determined by the jury. Although the charge failed
to specifically so state, the appellate court determined no
plain error resulted. Not only was there never any dispute
that the substance in the suitcase was 14.8 pounds of
marijuana, but based on the overall charge and the jury
verdict sheet which specifically required the jurors to
answer whether the amount of marijuana was more than
five pounds, the court concluded that the element was
established. Finally, the court rejected the claim that the
expert improperly testified that defendant possessed the
marijuana with the intent to distribute, finding State v.
Odom, 116 N.J. 65, 77 (1989), dispositive on this issue.
State v. Cordero, 293 N.J. Super. 438 (App. Div.
1996), certif. denied, 147 N.J. 577 (1997), held that it
was harmless error to omit a jury instruction on the
weight to be accorded to and assessment of expert
testimony on the issue of whether drugs involved were
possessed with intent to distribute. Compare State v.
Jackson, 278 N.J. Super. 69 (App. Div. 1994), where the
court stated that a police officer in a drug case may
properly testify both as an expert witness and a fact
witness, but the court should clarify those dual roles in
the instruction to the jury to prevent confusion.
D. Drug Kingpin
In State v. Ricci, 250 N.J. Super. 39 (App. Div.), certif.
denied, 127 N.J. 547 (1991), the Appellate Division
considered the constitutionality of defendant’s convic-
tion for violation of the “kingpin” statute, N.J.S.A.
2C:35-3. It found plain error based on the trial judge’s
failure to have charged the jury that it must find that
defendant committed overt acts in the conspiracy after
the effective date of the “kingpin” statute to be convicted
thereunder. It also found the sentence violated the ex post
facto clause in that the conspiracy allegedly began before
the effective date of the kingpin statute and continued
until after its effective date.
Then, in the leading case of State v. Afanador(I), 134
N.J. 162 (1993), the Supreme Court held that the drug
kingpin statute was not unconstitutionally vague, either
facially or as applied in this case. It found that inclusion
of the word “organizer” in conjunction with the terms
“supervisor, financier or manager” unambiguously
indicated that a defendant violated the statute only if he
or she exercised some ability to control the conduct of
others in the drug distribution scheme. The Court also
found that the terms “leader” or “network” need not be
defined by the trial judge since they are not elements of
the offense.However, the charge issue was revisited in State v.
Alexander, 136 N.J. 563 (1994), where the Supreme
Court concluded that the status of the defendant is a
material element of the drug kingpin statute and
consequently, a jury can understand the elements of the
offense only if instructed to consider matters found in
another part of Title 35. Incorporating the legislative
statement of purpose in N.J.S.A. 2C:35-1.1, the Court
held that in a prosecution under the drug kingpin
statute, the trial court should instruct the jury that it
must find that the defendant occupies a high-level
position, i.e, a position of superior authority and control
over other persons, in a scheme or organization of illegal
drug distribution, manufacturing, dispensing or
transporting, and that in that position the defendant
exercised supervisory power or control over others
engaged in an organized drug trafficking network.State v. Alexander, supra, was reaffirmed in State v.
Wright, 143 N.J. 580 (1996), where the Supreme Court
held that it was proper for the Appellate Division to
reverse defendant’s drug kingpin conviction since the
trial court did not adequately instruct the jury on
elements of leading narcotics trafficking network, did not
define or explain the role of the leader or drug kingpin,
and failed to indicate the necessity of determining that
defendant preformed such a role.Putting more teeth into its earlier decision, the
Supreme Court in State v. Afanador (II), 151 N.J. 41
(1997), ruled that the decision in State v. Alexander, 136
N.J. 563 (1994), which set forth the jury instructions
necessary in drug kingpin cases was fully retroactive
because Alexander did not promulgate a new rule of law
but merely “clarified ambiguities in the statute.” As
such, the Court ruled that Afanador should be granted
post-conviction relief and the reversal of his drug kingpin
conviction. The Court reviewed the criteria for
retroactivity and decided that each factor supported
making Alexander retroactive. The Court held that since
Alexander involved proper instructions to the jury, it was
intended to foster the reliability of the truth-finding
process and supported complete retroactivity. Second,
the Court held that, given the lack of definitive case law
regarding the issue before Alexander, the government
could not have relied unduly upon prior precedent.