Thirteen defendants move to dismiss various indictments pending against them alleging violations of the Comprehensive Drug Reform Act of 1986. Specifically they allege that the charging statute, N.J.S.A. 2C:35-7, is not only itself unconstitutional, but also as it relates to and interacts with N.J.S.A. 2C:35-5 and -12. The several allegations will be considered seriatim under separate headings.
N.J.S.A. 2C:35-7 provides in part:
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 any elementary or secondary school or school board, or within 1,000 feet of any school property or school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment.
Is N.J.S.A. 2C:35-7 vague and therefore unconstitutional?
Underlying the vagueness and overbreadth (Point II) arguments of defendants is the acknowledged absence of any factual information for the court's evaluation, excepting the statement at oral argument that each defendant is charged with the intent to disburse controlled dangerous substances within 1,000 feet of school property, school bus, or while on a school bus.*fn1
Vagueness whether facial or as applied is a procedural due process concept which requires that statutes be worded in such a way that persons of ordinary intelligence can comprehend what conduct is proscribed. Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926);
State v. Cameron, 100 N.J. 586 (1985) addresses the applied vagueness question by stating that
[a] party may test a law for vagueness as applied only with respect to his or her particular conduct; if a statute is vague as applied to that conduct, it will not be enforced even though the law might be validly imposed against others not similarly situated. Conversely, if a statute is not vague as applied to a particular party, it may be enforced even though it might be too vague as applied to others. [ Id. at 593]
We do not deal in terms of possible vagueness but rather in terms of specific behavior. State v. Lee, 96 N.J. 156 (1984).
Facial vagueness evaluations are subject to a similar analysis. Town Tobacconist v. Kimmelmen, 94 N.J. 85 (1983). A court cannot declare a statute unconstitutionally vague predicated on hypothetical situations. Ibid.; State v. Jones, 198 N.J. Super. 553 (App.Div.1985). One is not permitted to mount a constitutional attack where it may readily, as to the proponent, be held to be constitutional. State v. Cappon, 118 N.J. Super. 9 (Law Div.1971).
As the Appellate Division has held:
The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient clarity "that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1859, 75 L. Ed. 2d 903 (1983). See also Village of Hoffman Estates v. Flipside, 455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362, 368 (1982), reh. den. 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982). See also State v. Lee, supra, 96 N.J.  at 165; Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983); State v. Lashinsky, 81 N.J. 1, 17 (1979). Where the statute does not provide precise guidelines, it may permit "a standardless sweep [that]
allows policemen, prosecutors, and juries to pursue their personal predilections." Smith v. Goguen, 415 U.S. 566, 575, 94 S. Ct. 1242, 1248, 39 L. Ed. 2d 605, 613 (1974). The test, however, "does not consist of a linguistic analysis conducted in a vacuum." In re Suspension of DeMarco, 83 N.J. 25, 37 (1980). Rather, the statute must be read within the context of the "reality to which the provision is to be applied." Ibid. Applying these standards, we are fully satisfied that N.J.S.A. 2C:39-7 is sufficiently precise in its language to apprise the citizenry of the conduct proscribed. In our view, the statute provides fair notice of the activities prohibited and does not constitute "a trap for a person of ordinary intelligence acting in good faith." State v. Lee, supra, 96 N.J. at 166. See also State v. Wright, 96 N.J. 170 (1984). We are also satisfied that the statute is sufficiently definitive in its terms to preclude arbitrary and discriminatory enforcement. [ State v. Jones, 198 N.J. Super. 553, 563-564 (App.Div.1985)]
In so far as the court can ascertain on its own, these defendants are not charged with violating the comprehensive drug law with respect to a "school bus," but rather violating the 1,000-foot zone as outlined in N.J.S.A. 2C:35-7, regarding school property. In this regard, the language is quite specific.*fn2
Clearly 1,000 feet is a determinable distance. It can easily be measured. School property and school bus (limited to the statute -- while on a school bus) are ascertainable entities to the average layman. Consequently, whether as to facial or applied considerations, these sections of the statute are constitutional. The language and application are clearly -- readily -- capable of comprehension. This is especially evident when considering the following guideline; "simply because the prohibited behavior is not susceptible to precise definition need not lead to legislative paralysis," State v. Curtis, 195 N.J. Super. 354, 367 (App.Div.1984), certif. den. 99 N.J. 212 (1984), and by comparing the language under consideration, as to clarity, to that in N.J.S.A. 2C:39-5d "under circumstances not manifestly
appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree" which was specifically upheld in State v. Lee, supra, 96 N.J. at 165. See also for favorable comparison, State v. Joas, 34 N.J. 179 (1961) as to careless driving; State v. Sharkey, supra as to N.J.S.A. 24:21-19.1.a.(3), circumstances leading to a belief concerning controlled dangerous substances; Town Tobacconist v. Kimmelman, supra, as to the Drug Paraphernalia Act, N.J.S.A. 24:21-46 to -53; plus the listed matters in Matter of Hotel and Restaurant Emp. and Bartend., 203 N.J. Super. 297 (App.Div.1985), certif. den. 102 N.J. 352 (1985), all of which withstood challenges as to vagueness.
The attack as to "within 1,000 feet of any . . . school bus" is predicated upon hypotheticals and, therefore, as previously indicated not factually anchored in this proceeding, making it, therefore, subject to a valid "standing" argument. Although not addressed herein for dismissal purposes because of this defect, it is interesting to note that when it must be evaluated, the guidelines for doing so may be already established.
Admittedly, there may in fact be a future instance in which the decision to prosecute is ill-advised, unfair, or even discriminatory. Yet this is neither more nor less than the risk of unfairness inherent in many criminal statutes. That there may be a borderline area where application of the law is vague does not render the entire statute void for vagueness unless that borderline area is so broad that it covers practically the entire statute. As the Supreme Court said in United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947):
That there may be marginal cases in which it is difficult to define the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too vague to define a criminal offense. . . . [T]he Constitution does not require impossible standards. Id. at 7, ...