State v. Burgess

HUMPHREYS, J.A.D.,

dissenting.

The Legislature declared in the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to -23, that the

unlawful use, manufacture and distribution of controlled dangerous substances continues to pose a serious and pervasive threat to the health, safety and welfare of *273 the citizens of this State. New Jersey continues to experience an unacceptably high rate of drug-related crime and continues to serve as a conduit for the illegal trafficking of drugs to and from other jurisdictions.

[N.J.S.A. 2C:35-1.1(b).]

The Legislature addressed this “serious and pervasive threat” by providing in the Act for severe penalties for leaders of narcotics trafficking networks, the so-called “drug kingpins.” N.J.S.A. 2C:35-3. The defendant was charged as such a leader. The evidence at his trial overwhelmingly established that he was the leader of a street-level drug distribution network. He was convicted of this crime. His conviction was affirmed on appeal.

Now, almost seven years after the trial, his conviction is reversed because the judge’s charge to the jury did not conform to the charge presently approved by the New Jersey Supreme Court. At the time it was given, the judge’s charge conformed to existing and accepted legal practice. The charge was not challenged either at trial or on appeal. The failure to give the new charge does not impair the accuracy of the jury’s verdict. No fundamental injustice is present. To reverse a criminal conviction under these circumstances conflicts with basic principles of criminal justice.

Additionally, the rationale of the majority decision has likely erased the convictions of virtually every drug kingpin convicted prior to the Supreme Court decision in State v. Alexander, 136 N.J. 563 , 643 A.2d 996 (1994); see also State v. Wright, 143 N.J. 580 , 675 A.2d 216 (1996). I do not agree that this wholesale reversal of otherwise valid criminal convictions is mandated by law. I respectfully dissent.

I

The statute defines a “leader of a narcotics trafficking network” as one who “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 [certain controlled dangerous substances].” N.J.S.A. 2C:35-3.

*274 In State v. Afanador, 134 N.J. 162 , 631 A.2d 946 (1993), the Supreme Court held that the statute, while not a “model of precise draftsmanship,” sufficiently “describes the conduct that it proscribes.” Id. at 169 , 631 A.2d 946 . The Court said that a “person of average intelligence comprehends the meaning of the words ‘organizer, supervisor, financier or manager’ ” and that the terms are therefore not facially vague. Id. at 171 , 631 A.2d 946 .

A leader of a narcotics trafficking network, the Court said, is a person who exercises “some supervisory power over others.” Id. at 172 , 631 A.2d 946 . • Accordingly, “[b]ecause street-level dealers ordinarily lack any supervisory power over their suppliers or buyers, the statute does not transform every dealer into a kingpin.” Id. at 173 , 631 A.2d 946 . However, a drug kingpin need not necessarily be superior to street-level distributors and to their immediate supervisors or suppliers. State v. Alexander, supra, 136 N.J. at 574 , 643 A.2d 996 .

Further, a drug kingpin does not have to be the only or even the primary organizer, supervisor, financier or manager. See Model Jury Charges, Leader of a Drug Trafficking Network, N.J.S.A. 2C:35-3 (1996). A “high-level” or “upper-echelon” leader of a street-level organization is a drug kingpin if that person “occupies a significant or important position in the organization and exercises substantial authority and control over its operations.” State v. Alexander, supra, 136 N.J. at 575 , 643 A.2d 996 . Thus, one can be a drug kingpin “even at the street-level.” Ibid.

An examination of the evidence in this case demonstrates that Burgess squarely fits the category of a leader of a drug trafficking network and is not simply a street-level dealer. Burgess acted as an organizer, supervisor, financier and manager of a drug dealing operation which sold thousands of dollars of cocaine a week at the Lakewood Housing Project. One of his associates, Brown, sometimes would sell in one day several thousand dollars worth of cocaine. Burgess admitted to the police that he purchased cocaine in large units, such as two to two and one-half kilograms. One kilogram would cost as much as $17,500. The police calculated *275 that Burgess made over $13,000 in profit on each kilogram. On cross-examination, Burgess said he kept $12,800 in cash under a plant in his house for emergencies.

When a search warrant was executed at Burgess’s house, the police found large amounts of cash and savings bonds totalling over $40,000 and a quantity of gold jewelry. The police also seized a 1987 Chevrolet IROC Camaro. Burgess admitted to the police that the money at home, the furniture and the car were the proceeds of his cocaine business. Burgess had been unemployed for eighteen months.

Burgess obtained an unnamed “Dominican” source of cocaine in New York. Burgess had the cocaine picked up in New York and brought back to New Jersey. Burgess then arranged for the street sales at the housing project. Burgess provided the money to buy the drugs and made a profit on the sales by the other drug dealers.

Burgess had five persons working for him: the co-defendants Brown and Martin, Burgess’s girlfriend, Catalan, and two others, Williams and Dorsey. Brown told the police and later testified that he worked for and sold drugs for Burgess, and that Burgess supplied him with drugs to sell. He told customers including an undercover police officer that the drugs came from Burgess.

Catalan supplied Brown with cocaine as part of an arrangement with Burgess. Brown would pay Catalan two-thirds of the profits from the sale of a package of cocaine and Catalan would then give him another package to sell. Sometimes Martin instead of Catalan would supply Brown with cocaine to sell while collecting the profits for Burgess. After Martin was arrested, Burgess gave Williams $10,000 to post for Martin’s bail. Burgess employed Dorsey as a “strong arm” man to beat up people who would not pay.

Williams told the police and later testified that preparation of the cocaine for distribution was done for Burgess. Under their arrangement, Burgess would bring several kilograms of cocaine to *276 Williams’ home and Williams would break it down into small units for sale on the street. In return, Burgess would pay Williams by providing him with cocaine at a reduced price. Williams testified that the cocaine belonged to Burgess.

Williams also went to New York City to purchase cocaine for Burgess. Burgess would tell him where to go, would give him money for the cocaine, and would pay him for his efforts.

At trial, Burgess was the only witness for the defense. He admitted that he was a drug dealer. He testified that he was not an addict and that he was in the drug business for profit. He claimed that he was merely a street dealer and not an organizer, manager, financier or supervisor. His testimony was contradictory, evasive and incredible. Defense counsel admitted in his summation that the State may be able to prove Burgess guilty of being “a leader.”

In sum, the evidence manifestly established that Burgess was a drug kingpin. Burgess was not merely a “high-echelon” or an “upper-level” leader in this drug distribution network, he was the leader, the drug kingpin.

II

A defendant applying for post-conviction relief (PCR) is barred from asserting a ground for relief not previously asserted unless: “(a) ... the ground ... could not reasonably have been raised in any prior proceeding; or (b) ... enforcement of the bar would result in fundamental injustice; or (c) ... denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.” See R. 3:22-4.

Thus, absent a constitutional violation or “exceptional circumstances” showing a fundamental injustice, a defendant may not prevail on a PCR application if, as here, the claimed error could have been raised either at trial or on direct appeal. See R. 3:22-4; State v. Mitchell, 126 N.J. 565, 583 , 601 A.2d 198 (1992); State v. Cerbo, 78 N.J. 595, 605 , 397 A.2d 671 (1979).

*277 The reason for this prohibition is “firmly founded in the efficient and fair administration of justice.” State v. Mitchell, supra, 126 N.J. at 583 , 601 A.2d 198 .

As stated in Mitchell :

[t]he State has a strong interest in achieving finality. Without procedural rules requiring the consolidation of issues, litigation would continue indefinitely in a disconnected and piecemeal fashion. Each time a petitioner brought forward a new issue, attorneys and courts would waste their limited resources acquainting themselves with all of the complex details necessary to adjudicate it. When the grounds for challenging a conviction are consolidated, that investment need occur only once, and judicial resources can be more efficiently used to decide cases in a timely fashion. Moreover, relevant issues in a case are often interrelated. Adjudicating them separately would impair a court’s ability to reach a result that fairly synthesizes all of the relevant factors into a just and reasoned outcome.

[ 126 N.J. at 584 , 601 A.2d 198 .]

Attempting to evade the bar of the rule by “[cjloaking the claim in constitutional language will not guarantee relief. A court must scrutinize the assertion to ascertain whether constitutional rights are truly at stake.” Id. at 586 , 601 A.2d 198 .

The record in this case discloses no denial of defendant’s constitutional rights nor any fundamental injustice. Accordingly, defendant’s PCR application was properly denied. See R. 3:22-4. Even if the rule does not bar defendant’s belated raising of this claim, I would deny the claim on the merits. See infra.

Ill

An announcement of a new rule of criminal law or procedure can wreak havoc in the administration of criminal justice if applied to convictions which were tried and affirmed under the old rule. As stated by Justice Proctor for a unanimous court in State v. Johnson, 43 N.J. 572 , 206 A.2d 737 (1965):

[s]ociety reasonably expects that when a man is convicted of a crime by a method not considered unfair according to the rules of law then in effect, that conviction will stand. Therefore, unless some countervailing considerations of “the deepest sentiments of justice” compel otherwise, a new l-ule of criminal law should not be applied retroactively.

[Id. at 584, 206 A.2d 737 .]

*278 The United States Supreme Court in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), cogently described the perils of using the doctrine of retroactivity to vacate criminal convictions. The Court said that:

[application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. The fact that life and liberty are at stake in criminal prosecutions “shows only that ‘conventional notions of finality’ should not have as much place in criminal as in civil litigation, not that they should have none." “[I]f a criminal judgment is ever to be final, the notion of legality must at some point include the assignment of final competence to determine legality.”

[Id. at 309, 109 S.Ct at 1074-75 , 103 L.Ed.2d at 355 (citations omitted).]

The Court agreed with Justice Harlan’s observation that:

No one, not criminal defendants, not the judicial system, not society as a whole is benefitted by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.

[Id. at 309, 109 S.Ct. at 1075 , 103 L.Ed.2d at 355 (quoting Mackey v. United States, 401 U.S. 667, 691 , 91 S.Ct. 1160, 1171, 1179 , 28 L.Ed.2d 404, 419 (1971) (Harlan, J., concurring in part and dissenting in part)).]

The Court pointed out that these principles become even more critical when retroactivity is used to set aside criminal convictions in which direct review has been exhausted.

The “costs imposed upon the State[s] by retroactive application of new rules of constitutional law in habeas corpus ... generally far outweigh the benefits of this application.” In many ways the application of new rules to cases on collateral review may be more intrusive than the enjoining of criminal prosecutions for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.

[Teague, supra, 489 U.S. at 309 , 109 S.Ct. at 1075 , 103 L.Ed.2d at 355 (citations omitted).]

New Jersey has faithfully followed these precepts. Former Chief Justice Wilentz stated in State v. Biegenwald, 106 N.J. 13 , 524 A.2d 130 (1987), that:

[t]he unfairness, if there be any, in not applying the laws retroactively in these cases [when the criminal law changes for the benefit of the defendants] is balanced by the needs of the practical administration of justice; the system cannot continual *279 ly retry, reevaluate, or resentence all those convicted under prior laws every time that law is changed.

[Id. at 66, 524 A.2d 130 .]

These principles have had enduring vitality in New Jersey jurisprudence. Research has not disclosed any reported appellate decision in New Jersey, except the majority opinion in this case, in which a new rule of law has been applied to overturn convictions which have become final. No persuasive reason has been advanced why the new rule announced by a divided Court in Alexander is a gale of such force and magnitude that it blows away virtually all prior convictions.

IV

The majority concludes that Alexander did not announce a “new rule of law” and therefore may be given complete retroactive effect. This conclusion cannot withstand careful analysis.

Whether a decision is a new rule of law for the purpose of retroactivity analysis was recently discussed at length by the Supreme Court in State v. Knight, 145 N.J. 233 , 678 A.2d 642 (1996); see also State v. Abronski, 145 N.J. 265 , 678 A.2d 659 (1996). At issue in Knight was whether State v. Sanchez, 129 N.J. 261 , 609 A.2d 400 (1992), should be given retroactive effect. In Sanchez , the Court had held that the mere recitation of Miranda warnings did not provide an indicted defendant with sufficient information to make a knowing and intelligent waiver of the right to counsel. 129 N.J. at 279 , 609 A.2d 400 .

The Court held in Knight that Sanchez was a new rule of law and therefore its retroactive effect could be limited. 145 N.J. at 258, 678 A.2d 642 . A five Justice majority in Knight limited the Sanchez rule to defendants who had not exhausted direct review of their convictions. Ibid. Two Justices would deny any retroactivity to Sanchez. Id. at 262 , 609 A.2d 400 .

In Abronski, supra, the Court held that its decision in State v. Reed, 133 N.J. 237, 261-62 , 627 A.2d 630 (1993) (police must *280 inform a suspect in custody that an attorney wishes to communicate with the suspect), was a new rule of law and should not be applied retroactively. 145 N.J. at 267-68, 678 A.2d 659 .

In Knight , the Court said:

In State v. Lark, we discouraged undue emphasis on the old rule/new rule distinction, and noted our reluctance to decide retroactivity questions on the basis of the now-discredited common-law view of law as “perpetual and immutable.” In Lark, we cited approvingly the federal Supreme Court’s broad definition of “new rule” that provides that a “ ‘case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government ... [or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’ ” Moreover, we held that a decision involving an “accepts ed legal principle” announces a new rule for retroactivity purposes so long as the decision’s application of that general principle is “sufficiently novel and unanticipated.”

[State v. Knight, supra, 145 N.J. at 250-51, 678 A.2d 642 (citations omitted).]

Applying the above criteria here, the Alexander decision, like the Sanchez and Reed decisions, was a “new rule” for retroactivity purposes. Alexander represented a major and drastic change in the construction and application of the drug kingpin statute. The decision broke “new ground,” it was not “dictated” by existing precedent, and its application was “novel and unanticipated.” Consequently, Alexander is subject to retroactivity analysis.

Y

When a decision sets forth a “new rule,” three factors are generally considered to determine whether the rule is to be applied retroactively: (1) the purpose of the new rule and whether it would furthered by retroactive application; (2) the reliance placed on the old rule by those charged with administering it; and (3) the effect the retroactive application would have on the administration of justice. State v. Knight, supra, 145 N.J. at 251, 678 A.2d 642 .

If a decision is to be given retroactive effect, then the court must determine whether it is given only “pipeline” retroactivity, applying only to cases still on direct appeal, or “complete” retroac *281 tivity, applying to all cases including those like Burgess in which all avenues of direct appeal have been exhausted.

The majority in this case gives Alexander essentially complete retroactive effect. In State v. Bur stein, 85 N.J. 894 , 427 A.2d 525 (1981), the Supreme Court said that complete retroactive effect is a drastic result and therefore limited to cases:

where the purpose of the new rule “is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function” and which raises “serious questions about the accuracy of guilty verdicts in past trials.” In such cases the new rule is given complete retroactive effect, regardless of how much the State justifiably relied on the old rule or how much the administration of justice is burdened. Because this is such a drastic result, it has usually been applied only to those cases where the old rule “substantially” impaired the reliability of the truth-finding process.

[Id. at 406-07, 427 A.2d 525 (emphasis added) (citations omitted).]

Even in cases dealing with the “ultimate fairness and soundness” of the jury’s verdict, complete retroactivity has not been given. See State v. Czachor, 82 N.J. 392, 408-09 , 413 A.2d 593 (1980) (giving only limited retroactivity to the rule prohibiting the coercive Allen charge).

Similarly, under federal retroactivity principles, complete retro-activity is given “only in rare circumstances” to eases in which direct review has been exhausted. State v. Knight, supra, 145 N.J. at 253, 678 A.2d 642 . The majority finds in this case such a “rare circumstance,” namely, that the failure to give the Alexander charge was a violation of those procedures that are “implicit in the concept of ordered liberty.” See supra at 264, 689 A.2d at 735. It is difficult to understand how the failure to give a charge which the three dissenting Justices in Alexander found to be unnecessary is a violation of procedures that are “implicit in the concept of ordered liberty.”

Moreover, in Teague, supra, the United States Supreme Court made it clear that the failure to follow such procedures “must implicate the fundamental fairness of the trial.” 489 U.S. at 312 , 109 S.Ct. at 1076 , 103 L.Ed.2d at 357 . The Court said that the new procedures to be found “implicit in the concept of ordered liberty” must be limited in scope “to those new procedures without *282 which the likelihood of an accurate conviction is seriously diminished.” Id. at 313 , 109 S.Ct. at 1077 , 103 L.Ed.2d at 358 . In Teague , the Court found that the rule in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) (prosecutor cannot exercise preemptory challenges in order to excuse venirepersons from the petit jury on account of their race), should not be given complete retroactivity. The Court said that Batson’s requirement is “a far cry from the kind of absolute prerequisite to fundamental fairness that is ‘implicit in the concept of ordered liberty.’ ” Id. at 314, 109 S.Ct. at 1077 , 103 L.Ed.2d at 358 .

Similarly, in this ease the new model charge of the drug kingpin statute, considered unnecessary by three Justices of the Supreme Court, see State v. Alexander, supra, 136 N.J. at 580-81 , 643 A.2d 996 (Clifford, J. dissenting), is a “far cry” indeed from a rule of criminal procedure which is an “absolute prerequisite to fundamental fairness” and thereby “implicit in the concept of ordered liberty.”

Moreover, this is not a case in which the old rule substantially impaired the reliability of the truth finding process, or which raises “serious questions” about the accuracy of the verdict. Burstein, supra, 85 N.J. at 406 , 427 A.2d 525 . On the contrary, the evidence of guilt was ample, strong and compelling. See supra Part I.

Moreover, the difference between the old and new charge was not significant in the context of this case. Basically, there are two differences between the two charges. First, under the new charge, the State must prove that the defendant occupied a high-level position in the conspiracy, although not necessarily the highest level. Here the evidence clearly established that Burgess occupied the highest level in the conspiracy. He was the drug kingpin. Thus, it would have made no difference whichever charge was given.

The second change is that the words “organizer, supervisor, financier and manager” are explained to the jury as follows:

*283 An organizer is a person who arranges, devises or plans a drug trafficking conspiracy. A supervisor is one who oversees the operation of a drug trafficking conspiracy. A financier is one who is responsible for providing the funds or resources necessary to operate a drug trafficking conspiracy. A manager is one who directs the operations of a drug trafficking conspiracy.

[Model Jury Charges, Leader of a Drug Trafficking Network, N.J.S.A. 2C:35-3 (1996); see also State v. Alexander, supra, 136 N.J. at 575 , 643 A.2d 996 (requiring this language).]

The State must prove only that the defendant falls into one of these four categories. See N.J.S.A. 2C:35-3. Moreover, the defendant need not be the only or even the primary organizer, supervisor, financier or manager. Model Jury Charges, Leader of a Drug Trafficking Network, N.J.S.A. 2C:35-3 (1996). Here, the proofs plainly place Burgess within each of these four categories. See supra Part I. He was the organizer, the supervisor, the financier and the manager — the drug kingpin — of this major street level drug trafficking operation.

Thus, the use of the old rule neither “substantially” impaired the truth finding process in this case nor brought into “serious question” the accuracy of the verdict. See State v. Burstein, supra, 85 N.J. at 406 , 427 A.2d 525 . Further, the new rule is clearly not an “absolute prerequisite to fundamental fairness” that is “implicit in the concept of ordered liberty.” See Teague, supra, 489 U.S. at 313 , 109 S.Ct. at 1077 , 103 L.Ed.2d at 358 . Consequently, Alexander should not be retroactively applied to this ease.

VI

The majority concludes that the charge in Burgess constituted plain error whether or not Alexander is regarded as having announced a new rule of law for the purposes of retroactivity analysis. Plain error is error not previously raised which is “clearly capable of producing an unjust result.” R. 1:7-5. The “plain error” found by the majority here was apparently not “plain” to the trial judge and defense counsel or to the Appellate Division panel which affirmed Burgess’s conviction and life sentence. Moreover, the majority in Alexander did not expressly *284 state that the failure to give the charge in that case was “plain error.” The three Justices in the minority stated that “surely” it was not plain error. State v. Alexander, supra, 136 N.J. at 581 , 643 A.2d 996 (Clifford, J., dissenting).

Furthermore, in Afanador the new charge was not given; however, the majority of the Supreme Court upheld Afanador’s conviction even though the evidence was “equivocal.” See 134 N.J. at 178 , 631 A.2d 946 . The majority in Afanador took no position on the “propriety” of the trial court’s charge. Ibid. Nonetheless, if the failure to give the new charge constituted plain error, i.e., “error clearly capable of producing an unjust result,” a reasonable assumption is that Afanador’s conviction and life sentence would have been overturned then and there.

Moreover, whether a failure to give a proper charge is plain error depends on the facts of the case. State v. Jordan, 147 N.J. 409, 425-26 , 688 A.2d 97 (1997) (failure to give a Hampton charge is not plain error unless the omission is clearly capable of producing an unjust result); State v. Medina, 147 N.J. 43, 54 , 685 A.2d 1 -242 (1996) (an erroneous charge on reasonable doubt did not constitute plain error); State v. G.S., 145 N.J. 460, 476 , 678 A.2d 1092 (1996) (trial court’s failure to instruct jury as required by State v. Stevens, 115 N.J. 289, 309 , 558 A.2d 833 (1989), was not plain error under the facts of the ease); cf. State v. Hampton, 61 N.J. 250 , 294 A.2d 23 (1972) (requiring jury to be charged concerning jury’s duty to determine credibility of defendant’s out-of-court admission).

Under the facts in this case, the failure to give the jury charge required by Alexander was not clearly capable of producing an unjust result, see supra Part I, and accordingly was not plain error.

VII

My colleagues conclude that the burden on the criminal justice system of retroactive application of Alexander will not be inordinate because the convictions of no more than ten drug kingpins *285 need be set aside. The majority treats the weight of this burden too lightly. Retrials after substantial lapses in time are often inherently unfair. Witnesses may have died or are unavailable. Time washes away memory. Physical evidence may no longer be available. These factors permeate and taint the search for truth which is the essence of a fair trial.

Additionally, complete retroactivity produces confusing and incongruous results. Consider, for example, the case of State v. Dozier, A-5276-92T4 (App.Div.1994). Dozier was convicted prior to the Alexander decision of being a drug kingpin. On appeal, he argued that he should have been given the new Alexander charge. Another panel of the Appellate Division held in an unreported opinion that: (1) the Alexander decision should be applied prospectively and not given any retroactive effect; and (2) the failure to give the Alexander charge was not plain error. 1 The New Jersey Supreme Court denied certification. See State v. Dozier, 142 N.J. 454 , 663 A.2d 1361 (1995).

Presumably, Dozier will now seek a new trial relying on the majority opinion in the present case. His grounds will be those which a panel of the Appellate Division has already squarely considered and unanimously rejected. If the majority opinion in the present case is followed, Dozier’s new quest may be successful. This uneven and erratic application of the criminal laws does not enhance public confidence in the due administration of criminal justice.

VIII

The proper disposition of this case rests on a fundamental and long standing precept of criminal jurisprudence. A conviction of a defendant who is plainly guilty and has received a fair trial should *286 not be set aside. See Snyder v. Massachusetts, 291 U.S. 97, 122 , 54 S.Ct. 330, 338 , 78 L.Ed. 674, 687 (1933) (Cardozo, J.) (“There is danger that the criminal law will be brought into contempt ... if gossamer possibilities of prejudice ... set the guilty free.”); United States v. Liss, 137 F.2d 995, 999 (2nd Cir.1943) (Hand, J.) (if we “clutch at shadows” in order to reverse criminal convictions, then the effective enforcement of criminal law will be impossible).

As eloquently stated by Judge Friendly in his classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments:

Legal history has many instances where a remedy initially serving a felt need has expanded bit by bit, without much thought being given to any single step, until it has assumed an aspect so different from its origin as to demand reappraisal— agonizing or not. That, in my view, is what has happened with respect to collateral attack on criminal convictions. After trial, conviction, sentence, appeal, affirmance, and denial of certiorari by the Supreme Court, in proceedings where the defendant had the assistance of counsel at every step, the criminal process, in Winston Churchill’s phrase, has not reached the end, or even the beginning of the end, but only the end of the beginning____ My thesis is that, with a few important exceptions, convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence.

[Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi L.Rev. 142, 142 (1970).]

I find no substance in the defendant’s other contentions. See R. 2:11-3(e)(2). I would affirm the well-merited conviction of the defendant as a drug kingpin.

The Dozier decision is not being “cited" as precedent, see R. 1:36-3. It is mentioned to illustrate the impact which the majority opinion will have on criminal convictions under the drug kingpin statute. See Falcon v. American Cyanamid, 221 N.J.Super. 252 , 261 & n. 2, 534 A.2d 403 (App.Div.1987).