46 Mass. App. Ct. 919 | Mass. App. Ct. | 1999
Claiming a number of errors, the defendant appeals from convictions of distributing marijuana and of doing so within 1,000 feet of a school, the West Springfield Middle School Academy (academy). We focus our discussion on the defendant’s argument regarding the school zone conviction.
The academy is a two-room alternative school of the West Springfield school system, located in a building owned by the West Springfield Boys and Girls Club (club). Each classroom has a teacher and six to eight students in grades six through eight. The town of West Springfield rents the rooms from
General Laws c. 94C, § 32J, as inserted by St. 1989, c. 227, § 2, the statute under which the defendant was convicted, provides for two-year mandatory minimum additional sentences for those who distribute narcotics “within one thousand feet of the real property comprising a public or private elementary, vocational, or secondary school whether or not in session.” The defendant argues (1) that his conviction for distribution within the school zone violated his due process rights to fundamental fairness because the sign identifying the school was less prominent than the sign of the club; and (2) that he was not within 1,000 feet of the real property of a school because the school was on the real property of the club. There is no merit to these arguments.
In enacting § 32J, the Legislature explicitly provided that “[l]ack of knowledge of school boundaries shall not be a defense to any person who violates the provisions of this section.” It is by now well established that this “strict liability” does not constitute a denial of due process. Commonwealth v. Alvarez, 413 Mass. 224, 228-230 (1992). “[S]omeone who knows he is dealing in drugs” must “proceed at his peril with respect to the proximity of a school.” Id. at 230. The same principle applies to the location of a qualifying school. “Although some schools are not clearly recognizable as such from all points within the 1000 foot radius, the dealers bear the burden of ascertaining where schools are located and removing their operations from those areas or face enhanced penalties.” Bailey v. State, 603 N.E.2d 1376, 1380 (Ind. App. 1992) (one room in a community center used by school system as an alternative classroom). See Commonwealth v. Roucoulet, 413 Mass. 647, 648 (1992) (conviction proper on showing that defendant possessed the drugs within the school zone even if he intended to distribute them outside zone).
Section 321 does not require that “the real property comprising a . . . school” be owned by the school. Nothing about this phrase suggests permanent ownership. See Black’s Law Dictionary 287 (6th ed. 1990), defining “comprise” as “to comprehend; include; contain; embrace; cover.” Indeed such a requirement is inconsistent with the legislative purpose. See Commonwealth v. Roucoulet, 413 Mass, at 651 (“[c]learly, the Legislature intended to create drag-free zones of safety where children could be, learn and play free of the potential infection of drags,” quoting from State v. Ivory, 124 N.J. 582, 594-595 [1991]). As did the Supreme Judicial Court in Commonwealth v. Roucoulet, supra, we turn to New Jersey for a “reasoned decision[]” on this issue. “It is obvious to those against whom the statute is directed as well as to those who enforce it that the conduct in question is made criminal [and subject to an enhanced penalty] when it occurs on or within 1,000 feet of property being used for elementary or secondary school purposes. The crime has nothing to do with the nature of the school’s or the school board’s interest in the property.” State v. Baez, 238 N.J. Super. 93, 97 (1990). “The manner in which a school board holds title to property used for school purposes is not an element of an offense that is intended to protect school children.” 238 N.J. Super, at 98.
None of the defendant’s arguments that his trial counsel provided ineffective assistance has merit. Officer Porter’s testimony on direct examination
Judgments affirmed.