Defendants move to dismiss count three of the indictment which charges them with possessing cocaine within 1,000 feet of a school with the intent to distribute that cocaine. Defendants contend that that statute which also provides for enhanced punishment violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution as well as Art. I, par. I of the New Jersey Constitution.
The statute N.J.S. 2C:35-7 provides, in pertinent part, as follows:
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 a controlled substance analog while on any school property used for school purposes which is owned by an elementary or secondary school or school board or within 1,000 feet of any school property or 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 . . . 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. . . .
The statute, therefore, calls for the imposition of a period of parole ineligibility which shall not be less than three years for any defendant who is convicted of possessing a controlled dangerous substance with the intent to distribute while within 1,000 feet of any school property.
I find the following principles of statutory construction to be pertinent and shall be guided by them in ruling upon defendants' contentions.
First, it is well recognized that courts do not act as a super-legislature. Burton v. Sills, 53 N.J. 86, 95 (1968). A statute is presumed to be constitutional and will not be declared void unless it is clearly repugnant to the constitution. Paul
Kimball Hospital v. Brick Township Hospital, 86 N.J. 429, 446-447 (1981).
Therefore, the burden is upon the party challenging the constitutionality of the statute to demonstrate clearly that it violates a constitutional provision. Newark Superior Officers Association v. City of Newark, 98 N.J. 212, 222 (1985).
Defendants contend that the statute violates the Equal Protection Clause in that it unconstitutionally affects their right to live where they please. Federal equal protection analysis traditionally involves different tiers or levels of review. Greenberg v. Kimmelman, 99 N.J. 552, 564 (1985). If a fundamental right or suspect class is involved, the legislative classification is subject to strict scrutiny. To justify the restriction, a state must establish that a compelling state interest supports the classification and that no less restrictive alternative is available. Ibid. With other rights, however, the legislative classification need only be rationally related to a legitimate interest. The standard of review varies, furthermore, with the effect of the governmental regulation upon the affected right. When the effect on a right, even a right that is fundamental, is indirect or insubstantial, the court has applied the rational basis test and upheld a legislative classification. Id. at 565.
I am satisfied that even if the right sought by defendant to be protected is considered to be a fundamental right the effect of the legislation on that right is indirect or insubstantial and I, therefore, conclude that the "rational basis" test should be applied. There is no constitutionally protected right to distribute controlled dangerous substances or to possess controlled dangerous substances with the intent to distribute. Any effect this statute has on one's right to freely choose a residence is most indirect and most insubstantial.
The Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 et seq. was enacted as a result of the concern of the Legislature for the crisis ...