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State v. Conk

Decided: May 19, 1981.


On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.


Defendant, an 18-year-old, 12th grade student appeals from his conviction of defiant trespass, in violation of N.J.S.A. 2C:18-3(b), for which he was fined $25 and assessed costs.

On appeal defendant alleges that his conviction must be reversed because (1) his actions were within "customary tolerance or license" and the complaint should have been dismissed pursuant to N.J.S.A. 2C:2-11(a) and (c) or, in the alternative, that the Code of Criminal Justice does not apply; (2) the complaint was defective jurisdictionally and should have been dismissed; (3) he was given insufficient notice against trespass and (4) he was licensed or privileged to be on school grounds, the

site of the trespass. The second and third points are clearly without merit as is the claim that his actions were within "customary tolerance or license" within the meaning of N.J.S.A. 2C:2-11(a) and (c). R. 2:11-3(e)(2).

However we deem it advisable to briefly discuss defendant's claims that the trial judge erred in denying his motion to dismiss the complaint because the Criminal Code did not apply and that the conviction should be reversed because his license to be on school property had not been revoked.

Defendant was enrolled in a special work-study program. His classes concluded at 10:20 a.m. each day. Defendant acknowledged that on December 6, 1979, following an incident in which he had hit another student, he was told by the school's principal and vice-principal that he was from that day to leave the school at the conclusion of his last class. Defendant observed the directive until December 21, 1979, when he returned to school in the afternoon, smelling of alcohol, and became involved in an altercation with a student. A teacher told him that an announcement had been made that he was not to be in the building at that hour for any reason and that he and his companion should leave.

Later that afternoon the teacher again saw him in the building and so did another teacher. He was making noise and still smelled of alcohol. He was instructed to go home but he did not. The vice-principal was informed and he took defendant to the principal's office. Defendant offered no explanation as to why he was in the building. The police were called; they arrested defendant; the vice-principal signed a criminal complaint. At trial defendant stated that his health teacher had advised him to return that afternoon to meet with her regarding a make-up exam. That teacher denied this, stating that defendant had never spoken to her about the make-up test.

Defendant alleges that N.J.S.A. 18A:37-1 to 5 of the school laws precludes the board of education from resorting to remedies available under Title 2C, the Code of the Criminal

Justice. There is nothing in N.J.S.A. 18A:37-1 to 5 which could be construed to limit the school board's right to use the remedies available under the Criminal Code. The focus of these sections of the school laws is to guarantee student discipline and the student's due process rights in proceedings taken by the school administration which could result in the imposition of the serious sanctions of suspension or expulsion. Goss v. Lopez , 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). Those sanctions are reasonable and necessary for the proper conduct of the school program. The statute makes no provision for the punishment of a quasi -criminal act, nor does it specifically preclude a school official from utilizing any other kind of remedy. The availability of civil remedies does not foreclose the State from enforcing its criminal and quasi -criminal laws relating to trespass when the facts warrant. State v. Dargon , 165 N.J. Super. 500, 504 (App.Div.1978).

Defendant further contends that he has to be suspended under N.J.S.A. 18A:37-4 before he can be charged with trespass. According to defendant, suspension is the type of notice required in a trespass action involving a student and it is suspension alone which revokes the student's license to be on school grounds. Defendant's reliance on State v. Besson , 110 N.J. Super. 528 (Cty.Ct.1970), is misplaced as that case did not turn on the adequacy of the notice against trespass. N.J.S.A. 2C:18-3(b)(1) provides that notice of trespass may be given by actual communication to the actor. Both on the day of the offense and two weeks before, defendant had ...

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