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State v. Blackman

Decided: August 22, 1973.

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BETSY BLACKMAN AND WILLIAM BIRNBAUM, DEFENDANTS-RESPONDENTS



Conford, Leonard and Crahay. Crahay, J.A.D.

Crahay

An indictment charging defendants with the maintenance of a common nuisance resorted to by persons for unlawful activities involving narcotic drugs contrary to N.J.S.A. 24:21-23 and N.J.S.A. 24:21-35, subd. a was dismissed on the grounds that it failed to state a crime punishable by law. The State appeals.

The operative portions of the challenged indictment are that the defendants --

". . . on or about the 30th day of March, 1972, in the City of Hackensack, County of Bergen aforesaid and within the jurisdiction of this Court, did keep and maintain as a common nuisance premises within the aforesaid jurisdiction resorted to by persons for the purpose of unlawfully using, keeping, manufacturing, distributing, dispensing, administering or selling narcotic drugs, contrary to the provisions of N.J.S. 24:21-23 and N.J.S. 24:21-35, subd. a . . . ."

The trial court's stated reason for dismissing the indictment was that -- " N.J.S.A. 24:21-35, subd. a, under which defendant was charged, lacks any words designating a crime and is merely a statutorial forfeiture provision."

In 1970 the Legislature repealed the Uniform Narcotic Drug Law, N.J.S.A. 24:18-1 et seq., replacing it with the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq. (effective October 19, 1970). The legislative treatment of nuisances under the two acts is patently different.

N.J.S.A. 24:21-35, subd. a provides --

"a. The maintenance of any building, conveyance or premises whatever which is resorted to by persons for the unlawful manufacture, distribution, dispensing, administration or use of controlled dangerous substances shall constitute the keeping of a common nuisance."*fn1

N.J.S.A. 24:18-37 had provided --

"Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a common nuisance. No person shall keep or maintain such common nuisance. (Emphasis added)

Thus, unlike its predecessor, N.J.S.A. 24:21-35 does not prohibit the maintenance of a common nuisance regarding narcotic activities. It merely defines a common nuisance and provides for statutory forfeitures. We are not persuaded by the State's argument that the general penalty provision of the Controlled Dangerous Substances Act, N.J.S.A. 24:21-23, evidences an intent by the Legislature that the keeping of a common nuisance under the act is a criminal offense. N.J.S.A. 24:21-23 provides that --

" any person who violates any provision of this act for which no specific penalty is provided shall ...


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