STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES IVORY, JR., DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued March 12, 1991-Decided July 11, 1991.
592 A.2d 205 | 124 N.J. 582
Carol M. Henderson, Deputy Attorney General, argued the cause for respondent (Robert J. Del Tufo, Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by
This appeal presents two questions regarding one statute,
I
On October 27, 1988, defendant, Charles Ivory, rode his bicycle down Newmann Springs Road in Red Bank, New Jersey. He proceeded through a “park area” (as he described it) and neared the athletic field at the end of Pearl Street in Red Bank.
A police officer, acting pursuant to a previously-obtained warrant, stopped and searched Ivory as he rode his bicycle within 1,000 feet of the athletic field. The search revealed 16.98 grams of cocaine and an uncertain amount of marijuana in Ivory‘s jacket pocket. That discovery resulted in multiple drug charges against Ivory, the most salient for our purposes being the violations of
On December 22, 1988, Ivory entered a retraxit plea of guilty to violation of
The court sua sponte postponed Ivory‘s sentencing in order to decide whether Count Basie Field was “school property.” It found that ownership of the Park by the Red Bank Board of Education made this facility “school property” under the statute. Believing that the statute “does not require anything other than that the property was owned by a board of education,” the trial court imposed a four-year sentence with a one-year parole bar. The court also imposed various fines.
Ivory appealed. He also made a motion to supplement the record, which the Appellate Division denied. Despite the sparse record provided below, the Appellate Division addressed both the “property” and “purpose” criteria of
We granted certification, 122 N.J. 398, 585 A.2d 398 (1990). We later granted a motion to expand the record to include the lease agreement between the Red Bank Board of Education and the Borough of Red Bank as well as the Participation and Contribution Agreement between the Borough and “St. James Church (Red Bank Catholic).” Based on the more substantial record, we affirm the judgment below.
II
In determining a statute‘s meaning, we consider first the plain language of the statute. Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128, 527 A.2d 1368 (1987). In
Any person who violates subsection a. of
N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided inN.J.S. 2C:35-12 , be sentenced by the court to a term of imprisonment ... [in most cases,] the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole.*
It shall be no defense to a prosecution for a violation of this section that the actor was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property. Nor shall it be a defense to a prosecution under this section, or under any other provision of this title, that no juveniles were present on the school property at the time of the offense or that the school was not in session.
The statute discloses that the Legislature intended to impose strict liability and a mandatory jail term on a person who possesses narcotics with the intent to distribute them while on or within 1,000 feet of school property used for school purposes. That interpretation of
Evidence of the Legislature‘s purpose in enacting
The Legislature clearly intended to create drug “safety zones”
around schoolyards in recognition not only that children, who are often the targets of distributors, congregate there, but also that areas surrounding schools must be kept drug free if they are to serve as the primary medium for educating young people as to the dangers of drug use.
*
[T]his offense focuses entirely on the dangers associated with the infiltration of illicit drugs and drug trafficking activity into school safety zones.
“OFFICIAL COMMENTARY To The Comprehensive Drug Reform Act (Laws 1987, Chapter 106),” reprinted in 9 Crim. Just. Q. 149, 157 (1987) (hereinafter “Commentary“).
The Legislature established “a permanent, 24-hour drug safety zone around schools, in recognition that children routinely congregate on school property and school yards, before and after the normal school day, and during summer recess and other vacation periods.” Ibid. To achieve that purpose the Legislature sought to punish severely those who carried drugs into the safety zones established by the statute.
Today, we must decide, first, whether the Legislature intended that properties like Count Basie Park be included in the definition of the “safety zones” it established around “school property used for school purposes.” Second, we decide whether this statute applies only to a defendant who has the specific intent to distribute the drugs within 1,000 feet of the school property or whether it applies to a defendant who has a general intent to distribute the drugs at some time and at no particular place.
A
We find that Count Basie Park fits with the Legislature‘s understanding of “school property used for school purposes.”
There can be no doubt that Count Basie Park is “school property.” The statute asks whether the property “is owned by or leased to any elementary or secondary school or school board.”
The next question is: is this property “used for school purposes?” Defendant inexplicably reads into the statute a notion that to trigger the statute the property must be used “exclusively” or “primarily” for school purposes. He also implies that the Red Bank lease provision that states that “the Athletic Field shall be used for recreational purposes” precludes a finding that the Athletic Field fits within the Legislature‘s understanding of “for school purposes.” Neither of those positions is persuasive.
First of all, the notion that the school property must be used exclusively or primarily for school purposes finds no support anywhere. The statute itself states that “it shall be no defense that no juveniles were present on the school property at the time of the offense or that the school was not in session.” As the legislative history aptly demonstrates, the Legislature intended a twenty-four-hour-a-day, three-hundred-sixty-five-day-a-year safety zone. Commentary, supra, 9 Crim. Just. Q. at 157. That safety zone did not depend on the actual presence of children, and applied “before and after the normal school day, and during summer recess and other vacation periods.” Ibid.
Second, “recreational purposes” need not foreclose “school purposes.” The Legislature understood that schools used some property for athletic or recreational events, and that such use nevertheless constituted use for school purposes. Indeed, the recognition of the intersection of those two is seen in the statute, other laws and in the lease. “The protected school safety zone includes ... playgrounds and athletic fields” associated with the school because children “congregate there” before, during and after school, during the summer and during other vacations. See Commentary, supra, 9 Crim. Just. Q. at 157. That provision recognizes the connection between pedagogy and play. So does Title 6 of the New Jersey Administrative Code (Education), which establishes guidelines for physical education and interscholastic sports competition. See, e.g.,
This record contains sufficient evidence to demonstrate that Red Bank Catholic actually used Count Basie Park for school purposes. We therefore sustain defendant‘s conviction. The existence of a “Participation and Contribution Agreement” between the Borough and “St. James Catholic Church (Red Bank Catholic High School)” is strong evidence that the park was and will be “used for school purposes.”
Lest one be concerned that a simple paper record could not offer potential defendants the means “to ascertain their proximity to schools [or school property used for school purposes] and remove their illegal operations and activities from those specially protected areas,” Commentary, supra, 9 Crim. Just. Q. at 157, we note the Agreement states that
R.B.C.‘s [Red Bank Catholic‘s] participation and use of the Athletic Field shall be no less than R.B.C.‘s current use of the Athletic Field ...
That 1985 Agreement indicates a then-current, visible use that could not decrease, and could well increase, over the course of the ten-year agreement. Red Bank Catholic was a recognized “participating user of the Athletic Field including the Athletic Field‘s stadium, home and visitor locker room, facilities, baths, football field, and 400 meter cinder track, etc.” As a “home” team, Red Bank Catholic‘s “current,” non-diminishing use in 1988 (the time of Ivory‘s arrest) would have included practices, soccer games, football games, and some other events. At times the fields would even have been prepared “for the exclusive use of R[ed] B[ank] C[atholic].” The Borough of Red Bank would have received notification of all scheduled games, all rained-out games, and all make-up games. Home teams generally wear
We recognize that the Legislature was not overly concerned with fairness toward drug dealers. The application of the statute on these facts, however, causes us no anxiety. The Legislature defined a strict-liability crime in
Other situations involving less-immediately identifiable property uses may prove more ambiguous. In such cases, the courts could look to other evidence such as published schedules, newspaper accounts, photographs and the like to establish that such property is regularly, consistently, and actually “used for school purposes” and not merely owned by an educational entity. So long as there are indicia from which an objectively reasonable person could know that the school property was used regularly, consistently, and actually for school purposes, lack of knowledge by a drug dealer, or a stranger, or, for that matter, a resident that he or she is within 1,000 feet of school property is irrelevant. Under such circumstances prosecution of a defendant under this statute does not violate due process.
B
Defendant also asserts that he is guilty only if the State proves that he intended to distribute the narcotics on or within 1,000 feet of the school property and not if he merely possessed narcotics that he intended to distribute elsewhere. The Appellate Division correctly concluded that the fact that defendant “may not have intended to make distribution within 1,000 feet of school property is irrelevant.” The legislative language and contemporaneous explanation support that position.
Case law also supports that conclusion. In State v. Ogar, 229 N.J. Super. 459, 467, 551 A.2d 1037 (App. Div. 1989), the court noted that this “statute cannot be construed to condition a prosecution upon some ‘functional relationship’ between the commission of the alleged drug offense and the protected zone.” Similarly, in State v. Baez, supra, 238 N.J. Super. at 97, 569 A.2d 268 the Appellate Division stated that “the conduct in question is made criminal when it occurs on or within 1,000 feet of property being used for elementary or secondary school purposes.” Finally, in State v. Bethea, 243 N.J. Super. 280, 283, 579 A.2d 341 (App. Div. 1990), the Appellate Division correctly concluded that a “defendant did not have to intend to distribute the drugs within the school zone in order to be convicted under
Finally, commentators as well support the conclusion that the Appellate Division‘s decision on this issue represents the state of the law. “Given a similar situation [i.e., possessing drugs within a tavern within 1,000 feet of a school] under New Jersey law, a person in possession of drugs with intent to distribute could be prosecuted (even if there was no intention to actually distribute in the bar itself or otherwise within 1,000 feet of school property).” Miller, “New Jersey‘s Drug Free School Zone Law,” 21 Rutgers L.J. 175, 189 (1989) (student note). In a similar vein, a former State Attorney General noted that nothing in the new Comprehensive Act changed or supplemented “the proofs necessary to establish that a defendant possessed a given substance ‘with intent to distribute.‘” W. Cary Edwards, “An Overview of the Comprehensive Drug Reform Act of 1987,” supra, 13 Seton Hall Leg. J. at 21. Each supports the
We believe our result comports with legislative intent and focuses on the Legislature‘s target. The only affirmative defense that the Legislature provided demands that a person arrested within 1,000 feet of school property prove, by a preponderance of evidence, that he or she possessed narcotics within a private residence where no juvenile was present and that the offense did not involve distribution for profit. No other exceptions are allowed. Simply put, if one possesses drugs with the intent to distribute and happens to be anywhere (except in a private residence under the conditions just mentioned) within 1,000 feet of school property, the statutory proscription applies. State v. Ogar, supra, 229 N.J. Super. at 467, 551 A.2d 1037. Some would argue that the statute was never intended to apply to those like Charles Ivory who happened to be riding his bicycle through a safety zone. However, that is precisely what was intended. See State v. Ogar, supra, 229 N.J. Super. 459, 551 A.2d 1037. Although the Legislature surely intended to prevent people from selling drugs to and around school children, it also meant to ensure “that areas surrounding schools must be kept drug free if they are to serve as the primary medium for educating young people as to the dangers of drug use.” Commentary, supra, 9 Crim. Just. Q. at 157. The insulation of those children was to be complete and total. Ibid. (it is no defense that children were not present, school was not in session, or that defendant was unaware of his/her proximity to school property).
Although this is a penal statute, strict construction “does not prevent a court from reading the statute in relation to the mischief and evil sought to be suppressed or prevent a court from giving effect to the terms of the statute in accordance with their fair and natural acceptation.” State v. Meinken, 10 N.J. 348, 352, 91 A.2d 721 (1952). Clearly, the Legislature intended to create drug-free zones of safety where children
Drug introduction itself makes the zones less safe, less insulated, and hence stalls the achievement of the legislative goal. That one did not plan to distribute within the zone is irrelevant. Drugs and school children are a volatile, explosive mix that the Legislature intended to keep separate.
The connection of the Count Basie athletic field and its use to the educational mission of the Red Bank Catholic High School establishes it as a protected “safety zone.” The Legislature‘s explicit reference to “playgrounds and athletic fields” evidences a belief that “school purposes” include recess and practice as well as reading and printing. Commentary, supra, 9 Crim. Just. Q. at 157. If our schools are to “serve as the primary medium for educating our youth and modifying widely-held, tolerant attitudes about drug use,” supra, 13 Seton Hall Leg. J. at 18, an understanding of how drugs can affect one‘s body is as important as an understanding of how they can affect one‘s mind. A school fulfills its purpose by affording enlightenment both in the locker-room and in the classroom.
Because defendant possessed cocaine and marijuana with the intent to distribute it when the police apprehended him within one thousand feet of school property used for school purposes, we affirm the judgment of the Appellate Division sustaining his conviction for violation of
CLIFFORD, J., concurring.
Had the troubling point on which Justice Stein‘s thoughtful dissent rests been raised by defendant when he entered his
I concur in the result.
STEIN, J., dissenting.
In 1987, the Legislature enacted
I
The facts of the case are undisputed. In October 1987, defendant, Charles Ivory, Jr., was riding his bicycle through Count Basie Park. The police stopped and searched him pursuant to a six-day-old search warrant, finding cocaine and marijuana in his coat pocket. After his arrest, defendant admitted that he had planned to share the drugs with friends at a party that evening.
The trial court postponed sentencing to consider whether ownership of Count Basie Park by the Board was sufficient to render it “school property” within the intent of
We granted defendant‘s request to supplement the record with the Lease Agreement between the Board and the Borough of Red Bank and the Participation and Contribution Agreement between the Borough of Red Bank and Red Bank Catholic. The evidence of “actual use” by Red Bank Catholic that the majority ascertains from the Participation and Contribution Agreement, ante at 590-591, demonstrates that Red Bank Catholic was authorized to use the field for school athletic purposes during specific hours designated in the agreement. However, the record reveals that residents of Red Bank were also authorized to use the field for non-school activities, such as Pop Warner football and Little League baseball. The majority nevertheless concludes that the public‘s use of the field is irrelevant to the inquiry whether the property is used for “school purposes,” focusing on the legislative intent to create a permanent, twenty-four-hour school safety zone. Ante at 589. The majority confuses the statute‘s clear mandate that distribution on school property is punishable regardless of whether
II
Although
[i]t is thus incumbent upon drug traffickers to ascertain their proximity to schools and remove their illegal operations and activities from these specially protected areas, or assume the risk and stern consequences for their failure to do so. [Ibid.]
Defendant‘s conduct in possessing a CDS with intent to distribute is already proscribed and punishable by statute. See
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties[] is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. [Id. at 391, 46 S. Ct. at 127, 70 L. Ed. at 328.]
See also Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939) (Court invalidated statute that penalized being “member of any gang” because term “gang” was unconstitutionally vague); State v. Cameron, 100 N.J. 586, 498 A.2d 1217 (1985) (interpretive problems posed by term “church” rendered statute in question vague as applied).
The record does not inform us, nor is it relevant, whether defendant himself was aware that he was within 1,000 feet of school property. See
The majority concludes that the provisions of the agreements between the Borough of Red Bank, the Board, and Red Bank Catholic authorizing school use of the athletic fields were sufficient to establish that a “reasonable person could know that the school property was used regularly, consistently and
The issue is strikingly different from that presented in the cases holding, with respect to similar statutory provisions, that the due-process clause does not require proof of a defendant‘s knowledge that the offending activity occurred within 1,000 feet of school property. See, e.g., United States v. Holland, 810 F.2d 1215, 1224 (D.C. Cir.) (“[I]t is reasonable for Congress to have expected drug traffickers to ascertain their proximity to schools and remove their operations from these areas or assume the risk for their failure to do so.“), cert. denied, 481 U.S. 1057, 107 S. Ct. 2199, 95 L. Ed. 2d 854 (1987); United States v. Falu, 776 F.2d 46, 50 (2d Cir. 1985) (same reasoning); State v. Moore, 782 P.2d 497, 504 (Utah 1989) (same reasoning with respect to state legislature). In those cases, there was no ambiguity or uncertainty concerning the existence of the school or school property. Hence, courts understandably have concluded that the due-process clause is not offended by a lack of proof that defendant knew his unlawful conduct occurred within a prescribed distance from school property. In this case,
I cannot conclude from this record that it was objectively ascertainable that Count Basie Park was “school property used for school purposes” within the meaning of
For affirmance - Chief Justice WILENTZ and Justices GARIBALDI, CLIFFORD, HANDLER, POLLOCK and O‘HERN-6.
For reversal and remandment - Justice STEIN-1.