dissenting.
This Court does not have to love a statute, but we do have to apply it unless it is invalid. I fear that the majority’s hostility to the enactment that the Legislature has given us has caused the Court to rewrite the “drug kingpin” statute—an illicit exercise bad enough in itself, made worse by the Court’s botching of a job for which it is demonstrably ill-suited.
I would apply the statute as written and would reinstate the conviction of this $1500-to-$9000-per-week drug entrepreneur as a “leader of a drug trafficking network.”
I
Earlier this term a unanimous Court upheld the “drug kingpin” statute, N.J.S.A 2C:35-3 (section 35-3), against a charge of facial vagueness. See State v. Afanador, 134 N.J. 162, 175, 631 A.2d 946 (1993). Afanador’s attack on the statute centered on its “requirement that a defendant conspire as ‘organizer, supervisor, financier or manager’ of [a] drug-trafficking network.” Id. at 171, 631 A.2d 946 (quoting section 35-3). In rejecting that attack we agreed with courts elsewhere that “a person of average intelligence comprehends the meaning” of those words. Ibid. We were all satisfied then—and I remain so now—that section 35-3 “describes the elements of the offense in common, well-understood terms * * * used by ordinary citizens in everyday conversation.” Id. at 175, 631 A.2d 946. That feature distinguishes this case from the authorities on which the Court relies, ante at 571-574, 643 A.2d at 1000-1001, all of which involve legal terms of art and their definitions.
Plain as the statutory language was a few short months ago, according to the majority today it does not quite do the job. We are told that “without any further explanation” the words of section 35-3 alone “would not fully convey to the jury the nature *577of the actual elements of the conduct that the Legislature intended to criminalize.” Ante at 571, 643 A.2d at 1000. And so, relying on a separate statutory section, N.J.S.A 2C:35-1.1 (section 35-1.1), the court has added to section 35-3’s list of criminal elements yet another “essential element of the crime under the drug-kingpin statute,” ante at 571, 643 A.2d at 1000, characterized variously as a defendant’s “high-level position” in the nefarious scheme, ante at 571, 643 A.2d at 1000, or a defendant’s “role * * * as an ‘upper-level member’ of a drug operation,” ante at 571, 643 A.2d at 1000.
Reliance on section 35-1.1 as justification for the court’s stunning addition of a defendant’s “upper-level position” as “an essential element of the crime under the drug-kingpin statute,” ante at 571, 643 A.2d at 1000 (emphasis added), is badly misplaced. Section 35-l.lc, quoted in essential part in the majority opinion, ante at 569, 643 A.2d at 999, does nothing more than set forth the Legislature’s findings and its declaration of public policy. Section 35-l.lc does not criminalize any conduct, define any elements of any offense, provide for any penalties, or otherwise display any of the identifying features of a criminal statute. Those functions are left to N.J.S.A 2C:35-2 to -16, in which the Legislature got down to the business of defining and grading the related criminal offenses. Section 35-1, which precedes those sections, is only what it purports to be, nothing more: a statement, an announcement of the Legislature’s intent in creating certain crimes and prescribing the penalties therefor, an identification of the targets at which the Comprehensive Drug Reform Act of 1986, L. 1987, c. 106, is aimed.
Facing the dilemma created when the Legislature writes a statute whose operative provisions are crystal clear but whose operative provisions may not conform with the Legislature’s explicit statement of legislative purpose, the Court attempts to remedy the situation by rewriting the operative provisions. We will never know why the Legislature, having so clearly indicated its intention that the statute should apply only to high-level drug *578dealers, went on to define the crime in a way that would permit conviction of drug dealers at a lower level. What we do know, however, is that one part of the statute is a declaration of legislative intent and purpose, not a definition of a crime, and that another section of the statute is unmistakably the definition of the crime. The crime defined is “leader of narcotics trafficking network.” The Legislature says so: “leader of narcotics trafficking network is a crime of the first degree and upon conviction thereof * * * a person shall be sentenced to an ordinary term of life imprisonment during which the person must serve 25 years before being eligible for parole.” That is the crime. The Legislature also left no doubt about the elements of that crime:
A person is a leader of a narcotics trafficking network if he 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 methamphetamine, lysergic acid diethylamide, phencyclidine or any controlled dangerous substance classified in Schedule I or II, or any controlled substance analog thereof.
One need not twist and turn to figure out what the Legislature meant by “leader of a narcotics trafficking network.” It is there in black and white. The crime is named by the Legislature “leader of a narcotics trafficking network,” and the crime is defined by the Legislature. As much as section 35-3 may not conform to section 35-l.lc’s statement of legislative purpose and intent, that circumstance is for the Legislature, not for this Court, to remedy; for when this Court attempts to remedy it, as no case better shows than this, the Court drafts a new statute. Whether that new statute comes closer to the legislative intent or wanders farther from it is immaterial. The important point is that the Court’s gratuitous and painfully inept amendment now becomes the law—not of the people of New Jersey, not of the Legislature, but of this Court.
But, says the Court, a jury is left in the dark by a charge that simply instructs in the language of the criminal statute, as recommended by the Model Jury Charge, see Model Jury Charges (Criminal), § 2C:35-3—Leader of Narcotics Trafficking Network (Oct. 17, 1988), and as dutifully delivered by the trial court in this *579case. And so, to pierce the newly-developed fog of language that just nine months ago communicated the elements of “leader of a drug-trafficking network” in “common, well-understood terms,” Afanador, supra, 134 N.J. at 175, 631 A.2d 946, the Court declares that in addition to reciting the statutory language of section 35-3, the trial court must “at least inform the jury that it must find that the defendant occupies a high-level position of authority in the scheme of distribution * * Ante at 574, 643 A.2d at 1001. Presumably as a definition of what it means by “a high-level position of authority,” the Court, in the very next sentence, rules that a trial court should instruct the jury that a “defendant’s role must be that of a ‘leader’ in the drug organization or system and, in that capacity, the defendant exercised supervisory power or control over others engaged in the organized drug-trafficking network,” ante at 574, 643 A.2d at 1001 an almost verbatim repetition of the definition provided earlier, in the Court’s explanation of why a defendant’s “upper-level” role in a drug network is “a substantive part of the crime.” Ante at 573, 643 A.2d at 1001.
Stop right there. Either the court has added a new element— high-level position of authority—to the criminal offense, or it has introduced a requirement for a “clarifying” jury instruction whose most conspicuous attribute is a limitless potential for jury confusion and for production of inconsistent verdicts on similar facts. Either result is assiduously to be avoided.
I tend to think that the majority rewrites the statute and redefines the elements of the offense by engrafting a declaration of legislative policy onto the operative or criminalizing section. Most of the discussion thus far seeks to support that conclusion. But assuming that the Court’s endeavor is only to give more complete definition to the Legislature’s terms, without adding any essential elements to the offense itself, that effort has, I suggest, produced more chaos than clarification. The majority unearths no novel concept, clarifies nothing, illuminates no shadowy comers of the “drug-kingpin” statute by declaring that in a prosecution *580under that statute the State must demonstrate that the defendant occupies “a position of superior authority or control over other persons * * * and that in that position the defendant exercised supervisory power or control over others engaged in an organized drug-trafficking network.” Ante at 574, 643 A.2d at 1001. As we made abundantly clear in Afanador, supra, that is precisely what the State proves when it shows that the defendant is a leader of a narcotics-trafficking network:
The clear implication of “organizerparticularly in a statute dealing with a “leader” of a drug-trafficking network, is that the term describes a person who exercises some supervisory power over others. That becomes even clearer when the expression appears in the same context as the words “supervisor, financier or manager,” for those words also connote some degree of control over another person’s aations. The meaning ascribed to the words used in a statute may be indicated or controlled by the words with which it is associated. Here, the inclusion of the word “organizer” among other terms denoting authority to direct the acts of another obviously indicates that it carries a similar connotation, namely, the primary meaning of “organizer” in common usage.
********
The casual purchaser will not ordinarily constitute one of the “others” with whom a defendant conspires, because in most cases a street distributor does not direct or supervise a drug buyer. Although a dealer may inform a buyer how to complete the transaction, he or she has no authority over the buyer. Therefore, to violate the kingpin statute a defendant must direct the actions of at least two other persons other than the person to whom the defendant sells the drugs. Because street-level dealers ordinarily lack any supervisory power over their suppliers or buyers, the statute does not transform every dealer into a kingpin.'
If, however, a defendant sells a quantity of drugs to a person who intends to resell those drugs and the defendant has some supervisory power over the reseller, that reseller is one of the “others” with whom the defendant has conspired. That result comports with the Legislature’s expressed intention to target “upper-echelon” members of a drug-trafficking network, because in that instance the defendant has conspired with the reseller as an organizer, supervisor, manager, or financier.
[134 N.J. at 172, 173, 631 A.2d 946 (emphases added) (citation omitted).]
Although we held in Afanador that section 35-3’s operative or criminalizing terms were readily understood as matters of common parlance, I would have no objection to a recommendation that henceforth in a “drug kingpin” prosecution trial courts would do well to spoon-feed the jury with a discussion, similar to that quoted above from Afanador, of the meanings of those terms. *581But surely I would not hold that the absence of any such discussion constituted plain error.
What, then, are we to make of the Court’s holding that the trial court here committed plain error in failing to instruct the jury that defendant occupied a “high-level” or “upper-echelon” position? Furnishing no definition of those terms other than by building on Afanador1 s common-usage notions of “supervisory power” and “control,” and in fact rejecting (correctly) the Appellate Division’s definition, ante at 574, 643 A.2d at 1002, the Court leaves jurors at sea, with no judicial guidance on how they should determine whether the defendants in the cases before them are “high-level” or “upper-echelon” players in the drug-trafficking scheme. Those terms, unlike the language of section 35-3, are not terms of the street, not in common usage. Including them as elements of a criminal statute in which they nowhere appear represents judicial mucking about in an area in which we have neither authority nor competence.
I would reverse and remand to the Law Division for reinstatement of defendant’s conviction for violation of the “drug kingpin” statute.
Chief Justice WILENTZ and Justice GARIBALDI join in this dissenting opinion.
For modification and affirmance—Justices HANDLER, POLLOCK, O’HERN and STEIN-4.
For reversed and remandment—Chief Justice WILENTZ, and Justices CLIFFORD and GARIBALDI—3.