Third, the Court decided that the administration of
justice would not be adversely impacted by making
Alexander retroactive because only 29 convictions could
be affected.
Finally, the Court rejected the argument that, even
if the instruction was faulty, the error was harmless
because of the arguments of counsel that defendant was
not the kingpin. The incorrect instructions in this
“close” case led the Court to determine that the absence
of an Alexander charge could have led the jury to an unjust
result.
In State v. Burgess, 154 N.J. 181 (1998), the Supreme
Court upheld the Appellate Division’s reversal of
defendant’s drug kingpin conviction because the trial
judge’s jury instruction on the crime did not conform
with State v. Alexander, 136 N.J. 563 (1994). Burgess
did not raise the Alexander issue on direct appeal,
although he included it in a petition for certification,
which was denied. He then raised it again in his petition
for post-conviction relief. The Appellate Division, in a
split opinion, had reversed the denial of collateral relief,
finding that defendant’s Alexander claim was not
procedurally barred and that the error deprived him of a
fair trial because an evidentiary basis existed for finding
defendant not guilty of the kingpin charge. The Court
held that R. 3:22-4 did not apply to Burgess’ claim
because he raised the Alexander issue in his petition for
certification. On the merits, the Court found the
Alexander error in the trial judge’s charge to be prejudicial
and not cured by defense counsel’s summation, and the
Court held that the arguments of counsel cannot
substitute for correct jury instructions. Finally, the
Court concluded that a properly charged jury could
reasonably have concluded that defendant was not guilty
under N.J.S.A. 2C:35-3.
In State v. Kadonsky, 288 N.J. Super. 41 (App. Div.),
certif. denied, 144 N.J. 589 (1996), the Appellate
Division affirmed defendant’s unconditional guilty plea
to the drug kingpin statute. Reaching the merits of
defendant’s claims despite R. 3:9-3f, the court
acknowledged the Supreme Court’s holding in State v.
Afanador (I), 134 N.J. 162 (1993), that the drug kingpin
statute was constitutional. The court rejected
defendant’s argument that the statute’s mandatory life
sentence with a 25 year parole disqualifier constituted
cruel and unusual punishment when marijuana, not
cocaine or heroin, was involved. The Appellate Division
further ruled that defendant had given a more than
adequate factual basis indicating that he was the leader of
a narcotics trafficking network.E. Defenses
State v. Tate, 102 N.J. 64 (1986), held that the
defense of medical necessity may not serve as justification
for possession of marijuana since the Legislature rejected
that possibility. The only exception is possession
obtained with a valid prescription order, and the Court
is without authority to fashion an alternative exception.
Furthermore, defendant had not demonstrated the
absence of an available alternative.In State v. McCague, 314 N.J. Super. 254 (App. Div.),
certif. denied, 157 N.J. 542 (1998), the Appellate
Division affirmed defendants’ convictions for furnishing
or giving a hypodermic needle or syringe to another.
Defendants, who were well aware of the law, were
members of a non-profit corporation that promoted
community health by preventing the spread of disease
among intravenous drug users, particularly by
exchanging clean needles for dirty ones. Irrelevant was
defendants’ professed purpose of seeking to save lives by
halting the spread of disease: no statutory requirement
exists in N.J.S.A. 2C:36-6 that defendants have some
“evil purpose,” and the Legislature was empowered to
impose criminal liability regardless of a defendant’s
motives in an attempt to combat the scourge of drug use.
Here defendants’ conduct was clearly unlawful.Moreover, no “medical necessity” pursuant to
N.J.S.A. 2C:3-2a justified defendants’ actions since their
conduct was not permitted by law but, rather, was
specifically outlawed by N.J.S.A. 2C:36-6. The facts,
too, involved not merely a needle exchange but also the
supply of paraphernalia, i.e., tie-offs and cookers, to assist
in injecting controlled dangerous substances. Further-
more, the distribution of needles prohibition as applied
violates no one’s right to life because no fundamental
right exists to obtain a clean needle to inject oneself with
illegal drugs and because the proffered right does not
encompass the use of prohibited substances at a reduced
health risk. Defendants were not entitled to the rule of
lenity to reverse their conviction, nor had they
committed mere de minimis infractions of the law. See also
State v. Sorge, 249 N.J. Super. 144 (Law Div. 1991),
holding that defendant’s conduct was criminal under
N.J.S.A. 2C:36-6, and was neither “trivial” nor absurd to
warrant application of the de minimis infraction statute.
Finally, the McCague court concluded that any change