dissenting.
Under the Comprehensive Drug Reform Act, L. 1987, c. 106 (codified at N.J.S.A 20:35-1 to -23) (Drug Reform Act), any *136person who repackages drugs for redistribution is subject to prosecution for “manufacturing” a controlled dangerous substance under one of two sections. The first, N.J.S.A. 2C:35-5, imposes criminal liability for simple manufacturing. The degree of the offense depends on the amount and type of drug involved. The other section, N.J.S.A. 2C:35-4 (the facilities law), establishes the first-degree crime of maintaining or operating a facility used for the manufacture of a controlled dangerous substance.
Defendant was arrested in possession of approximately an eighth of an ounce of cocaine and a fraction of an ounce of marijuana. Repackaging that amount of drugs constitutes third-degree manufacturing under N.J.S.A. 2C:35-5a(l), b(3), which would have exposed defendant to a three- to five-year sentence or to an extended term of five to ten years. However, based primarily on a friend’s statement that defendant “buys it in New York and cuts it up in my apartment,” defendant was indicted under N.J.S.A. 2C:35-4 for operating a drug manufacturing facility. On marginal evidence, and pursuant to an instruction that imposed no requirement of continuity to support a conviction for maintenance or operation of a manufacturing facility, the jury convicted defendant of the first-degree offense. Defendant was sentenced to a sixty-year term with thirty years parole ineligibility. The Appellate Division affirmed the conviction, but remanded for re-sentencing, although defendant remains subject to an extended-term sentence of twenty years to life, with a fifty-year presumptive term and parole disqualification for one-third to one-half of the eventual sentence.
This Court affirms the conviction. I would reverse, because in my view the evidence is insufficient to support the conviction and the trial court’s failure to instruct the jury on a requirement of continuity in applying the statute constitutes plain error. Moreover, the Court’s affirmance of the first-degree conviction on this shaky record will encourage prosecutors to use the facilities law selectively and arbitrarily to target disfavored drug defendants.
*137I
On September 14th and 15th, 1991, Hackensack police observed defendant engage in two apparent drug transactions in which he removed material from a ledge under an air conditioner protruding from apartment A-l in a building known as 69 Railroad Avenue. Police apprehended defendant, and removed four small bags from beneath the air conditioner containing a total of .10 grams of cocaine. The police then executed a search warrant for apartment A-l and found an eyeglass holder containing vials and bags of cocaine above the bathroom medicine cabinet. The aggregate amount of cocaine recovered from the eyeglass holder and beneath the air conditioner was 3.83 grams, or slightly more than one-eighth of an ounce. One bag of marijuana containing .53 grams (about one-fiftieth of an ounce) also was confiscated.
Defendant was indicted on two counts of possession, N.J.SA 2C:35-10a(l), and two counts of possession with intent to distribute, N.J.SA 2C:35-5a(l) and 5b(3). Because less than one-half of an ounce of cocaine was involved, those were third-degree crimes carrying sentences of three to five years. However, defendant was eligible for an extended-term sentence due to prior drug-related convictions. See N.J.S.A. 2C:43-6f. The trial court imposed concurrent sentences of eight years with four years parole ineligibility on both counts of possession and both counts of possession with intent to distribute.
Based primarily on a statement given to police by Albertina Brown, the tenant of apartment A-l, that defendant “buys it in New York and cuts it up in my apartment,” the Bergen County Prosecutor also sought and obtained an indictment of defendant on one count of “Maintaining or operating a controlled dangerous substance production facility,” N.J.S.A 2C:35-4, a first-degree offense. The Prosecutor’s office did not seek an indictment for manufacturing a controlled dangerous substance, N.J.S.A. 2C:35-5a(l), b(3), a third-degree offense. The Drug Reform Act defines “manufacture” to include “any packaging or repackaging” of a controlled dangerous substance, N.J.S.A. 2C:35-2, with the effect *138that a defendant who repackages drugs would theoretically be subject to prosecution under either section of the Act.
At trial, Brown repudiated her statement. The trial court’s charge to the jury contained no explanation of the terms “maintains” or “operates,” and there was no instruction concerning what level of continuity or substantiality in the alleged manufacturing activity must be proved in order to convict. Defendant was originally sentenced to sixty years with a thirty-year parole disqualification, but the Appellate Division struck down the sentence as excessive. The Court affirms the conviction and holds that defendant may be convicted of maintaining or operating a drug production facility if there is evidence that defendant repackaged cocaine for resale on the same premises “on more than one occasion.” Ante at 122, 678 A.2d at 214.
II
The legislative commentary to the Drug Reform Act clearly describes the kind of activity intended to be criminalized by N.J.S.A. 2C:35-4:
This section creates the new first degree crime [of] maintaining or operating a controlled dangerous substance production facility. Such laboratories have proliferated throughout the State, and have become an important part of the illicit drug trafficking networks operating in New Jersey. These laboratories, moreover, often employ sophisticated technologies and trained chemists.
This section is designed to reach those offenders who maintain or operate any premises, place or facility which is used for the unlawful manufacture of certain specified controlled substances____ This offense is also designed to reach any person who aids, promotes, finances or otherwise participates in the maintenance or operations of such a laboratory____
This section makes clear that maintaining or operating physical plants which produce dangerous drugs constitutes an especially serious offense, since such commercial operations have become an indispensable and prolific source for controlled substances____
It is expected that many persons covered under this section could also be prosecuted for the separate offense of manufacturing, distributing or dispensing a controlled dangerous substance in violation of N.J.S.A, 20:36-5. Unlike 2C:S5-5, however, the offense defined in this section is designated as a first degree crime without regard to the quantity or purity of the controlled substances involved, provided that the particular substance produced in the illegal laboratory was one *139of those which are specifically identified in this section. This offense will thus ensure that all manufacturers of these drugs are subject to stem punishment, even where the State is unable to physically seize large quantities.
It should be noted that this offense incorporates the current definition of “manufacture,” see N.J.S.A. 2C:35-2, which expressly excludes the “preparation or compounding of a controlled substance by an individual for his own use.” Accordingly, a private residence used by its owner for the preparation, compounding or conversion of substances such as “crack” or free base cocaine would not fall within [the] meaning of a “production facility” as used in this section provided that the substance was “manufactured” by a single individual solely for his own use. A structure used by persons who produce or refine crack from raw cocaine for commercial distribution to others, however, (so-called “crack houses” or “crack kitchens”) would indeed constitute a production facility for the purposes of this section, as would a structure used by numerous individual addicts who produce their own “crack,” for example.
[Assembly Judiciary Comm., Commentary to the Comprehensive Drug Reform Act 10-12 (1987) (emphases added), reprinted in John M. Cannel, Criminal Code Annotated 641-42 (1995).]
The commentary demonstrates the Legislature’s intent to target manufacturing operations of a substantial and continuous nature. Of course, a private residence could qualify as a manufacturing facility. However, the references to “commercial operations,” “physical plants,” and “laboratories” forming “an indispensable and prolific source of controlled substances” demonstrate that more than an occasional repackaging was contemplated. The exclusion of persons who prepare drugs for their own use underscores that the facilities law is aimed at operations that regularly produce drugs in commercial quantities.
Comparison with the simple manufacturing offense under N.J.S.A 2C:35-5 also demonstrates that conviction under the facilities law requires some showing of continuity and substantiality in the manufacturing operation. N.J.SA 2C:35-5 encompasses the crimes of manufacture, distribution, and dispensing of drugs. The seriousness of the offense is carefully graded, ranging from fourth- to first-degree depending on the amount and type of drug that is involved. In contrast, under N.J.SA 2C:35-4, the amount and type of drugs seized is immaterial. The critical element is the operation or maintenance of a facility. That conduct was singled *140out by the Legislature for punishment as a first-degree offense, with a maximum fine of $500,000, well in excess of that provided under 2C:35-5.
Thus, maintaining or operating a drug production facility is a fundamentally different crime than simple manufacturing. Like a handful of other first-degree crimes simultaneously established by the Drug Reform Act, see N.J.S.A 2C:35-3 (criminalizing “drug-kingpin” status) and N.J.SA 2C:35-9 (creating strict criminal liability for drug-induced death), the facilities law addresses an exceptionally serious category of drug-related conduct. Under the majority’s holding, however, the crucial element of “maintaining or operating” a drug manufacturing facility would be satisfied merely by repackaging drugs in the same location more than once.
The Court’s holding will subject innumerable drug dealers to prosecution for maintaining or operating a drug production facility if they repackage their product for resale more than one time in the same place. The Legislature undoubtedly was aware that drug dealers conduct business by buying in bulk and reselling in smaller amounts at a profit. Wholesale application of first-degree criminal liability to that routine type of criminal activity cannot be reconciled with the text or legislative history of the statute.
The Court’s holding allows the State greatly to expand the intended scope of the facilities law. Deference to the prosecutor’s discretion in deciding whether to indict defendant for third-degree manufacturing or first-degree operation of a facility implies that the prosecutor can sustain the burden of proving the more serious charge to a properly instructed jury. The jury, however, cannot perform its essential function without adequate instructions. “A court’s obligation properly to instruct and to guide a jury includes the duty to clarify statutory language that prescribes the elements of a crime when clarification is essential to ensure that the jury will fully understand and actually find those elements in determining the defendant’s guilt.” State v. Alexander, 136 N.J. 563, 571, 643 A.2d 996 (1994).
*141The trial court’s instruction on the facilities law essentially tracked the text of the statute. The jury was instructed that to convict defendant under 2C:35-4 they must find: “One, that the defendant maintained or operated or aided, promoted, financed or otherwise participated in the maintenance or operation of a premises, place or facility. Two, that the premises, place or facility was used for the manufacture of, in this instance cocaine, and manufacture ... includes any packaging or repackaging____” The trial court failed to instruct the jury on what constitutes maintenance and operation of a drug manufacturing facility. Because the statute itself does not adequately define “maintenance” or “operation,” the trial court had an obligation to instruct the jury on the proofs the State was obligated to introduce to establish that defendant’s use of a friend’s bathroom to repackage drugs was of sufficient regularity and magnitude to constitute maintenance and operation of a drug manufacturing facility. Federal courts have construed the corresponding federal statute, which makes it unlawful to “open or maintain” a place for drug manufacturing, to require “continuity in pursuing the manufacture ... of controlled substances,” and not to cover an isolated use of a facility for that purpose. United States v. Claris, 956 F.2d 1079, 1090, 1094 (11th Cir.1992) (construing 21 U.S.C. § 856(a)(1)), cert. denied, 504 U.S. 990, 112 S.Ct. 2979, 119 L.Ed.2d 597, modified on other grounds, 977 F.2d 538 (11th Cir.1992), cert. denied, 507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993); accord United States v. Vemers, 53 F.3d 291, 296 (10th Cir.1995); see also Dawson v. State, 894 P.2d 672, 676 (Alaska.Ct.App.1995) (finding consensus among state courts construing statutes similar to federal statute to include element of continuity).
The trial court’s recitation of the statutory language is no substitute for an explanation by the trial court of what the statute is intended to proscribe. Alexander, supra, 136 N.J. at 571-72, 643 A.2d 996. “When ‘an instruction solely in the terms of the language of the statute will not give sufficient guidance to the jury,’ we have required the definition and construction of pertinent terms for the jury.” State v. Afanador, 134 N.J. 162, 183, 631 *142A.2d 946 (1993) (O’Hern, J., dissenting) (quoting State v. Olivio, 123 N.J. 550, 567, 589 A.2d 597 (1991)); see also Alexander, supra, 136 N.J. at 571-72, 643 A.2d 996 (“Courts commonly clarify statutory language ... to make sure that juries carry out th[e] [legislative] intent in determining criminal culpability.”). Proper and adequate jury instructions are “[a]t the heart of the guarantee of a fair trial.” State v. Collier, 90 N.J. 117, 122, 447 A.2d 168 (1982).
Under the instructions the jury received, it could have understood that a single act of repackaging 3.83 grams of cocaine in Brown’s bathroom constituted the maintenance or operation of a drug manufacturing facility. “ ‘The criminal law cannot be administered justly or efficiently if the jury is allowed to speculate as to what conduct the law intended to proscribe by a specified crime.’ ” Alexander, supra, 136 N.J. at 572, 643 A.2d 996 (quoting State v. Butler, 27 N.J. 560, 595, 143 A.2d 530 (1958)). A single act of repackaging that amount of drugs fits squarely within the definition of third-degree manufacturing and could not reasonably have been contemplated by the Legislature to constitute maintenance of a drug manufacturing facility. The trial court’s failure adequately to inform the jury of the essential elements of the State’s burden of proving “maintenance” and “operation” left the jury unguided and free to misapply the statute to the meager proofs presented. Under those circumstances, the jury charge constitutes plain error and reversal of the facilities-law conviction is mandated. See Collier, supra, 90 N.J. at 122-23, 447 A.2d 168 (holding that erroneous charge on material issue is presumed to be reversible error); Butler, supra, 27 N.J. at 595-97, 143 A.2d 530 (finding plain error when jury charge inadequately informed jury regarding elements of offense).
The evidence before the jury was clearly insufficient to support a conviction for maintaining or operating a drug manufacturing facility. It consisted solely of the out-of-court statement by Albertina Brown, repudiated at trial, that defendant “buys it in New York and cuts it up in my apartment.” There was no *143evidence adduced on the frequency with which defendant had used the apartment for repackaging cocaine. Besides Brown’s statement, there was no evidence at all of continuity or ongoing use of the apartment for repackaging. A proper instruction would have explained to the jury the Legislature’s intent to target commercial manufacturing facilities that contribute to the flow of drugs on a substantial and continuous- basis. Such an instruction probably would have led to acquittal.
That the State will begin routinely prosecuting low-level drug dealers for first-degree operation of a drug production facility is unlikely. The danger posed by this decision is the possibility of arbitrary and selective prosecution. The Court’s opinion endorses the application of the first-degree statute to a defendant who repackaged drugs on an undetermined number of occasions and happened to attract the unfavorable attention of the Prosecutor. Had defendant been prosecuted for third-degree manufacturing, the offense that more accurately characterizes his conduct, his extended-term exposure would have been five to ten years. On remand, defendant remains subject to a presumptive extended term of fifty years with as much as twenty-five years parole ineligibility. Other occasional repackagers subject to extended sentencing could receive life sentences. The Legislature clearly did not intend such draconian results when it authorized the imposition of special penalties for operating commercial drug manufacturing facilities.
The unmistakable inference from this record is that the Prosecutor has misapplied the statute. The Legislature was attempting to criminalize the operation of major manufacturing facilities. The State has applied the statute to a small-time drug dealer who used his friend’s bathroom to divide up drugs for resale. The Court should not tolerate so obvious a distortion of the Legislature’s purpose. I would reverse the conviction for maintaining or operating a controlled dangerous substance manufacturing facility under N.J.S.A. 2C:35-4.
HANDLER, J., joins in this dissent.
*144For affirmance — Justices GARIBALDI, POLLOCK, O’HERN and COLEMAN — 4.
For reversal — Justices HANDLER and STEIN — 2.