The defendant attacks the constitutionality of N.J.S.A. 2C:35-7 which provides that the possession of a controlled dangerous substance with intent to distribute within 1,000 feet of any school property or school bus is a crime of the third degree*fn1 and N.J.S.A. 2C:35-12 which deals with plea bargaining in such cases. We hold the statutes are constitutional, except we withhold judgment as to the constitutionality of that portion of N.J.S.A. 2C:35-12 dealing with post-conviction agreements. A similar attack, although not as broad as here, was rejected in State v. Morales, 224 N.J. Super. 72 (Law Div.1987).
The defendant was stopped in North Plainfield for a motor vehicle violation within 1,000 feet of a grammar school on Saturday, September 19, 1987, at approximately 1:25 a.m. because her left rear red tail lens was missing. A search of her vehicle revealed a paper bag containing 30 vials of "crack"
cocaine and she was charged with possession of cocaine with intent to distribute within 1,000 feet of school property in violation of N.J.S.A. 2C:35-7.
She contends that the statute is facially unconstitutional or, in the alternative, can be sustained only if we read into the statute a requirement that it applies only if the defendant intended to actually distribute drugs within 1,000 feet of school property or a school bus. Persons who are merely passing through the 1,000 foot zone, she contends, cannot constitutionally be subjected to the statute.
She argues that the statute, if read literally, permits the conviction of persons who possess drugs which they intend to distribute, not within 1,000 feet of a school, but miles away as, for instance, the occupants of an airplane who unwittingly fly 500 feet above school property, or the occupants of a moving automobile who unknowingly pass within 1,000 feet of a school bus on a highway or country road. These situations, it is asserted, do not create potential harm to school children and demonstrate that the statute is too broad.
First, she asserted that the statute is vague, but offers no facts to support this claim. Generally, a criminal statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited conduct. Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983) stated that:
[v]ague laws are unconstitutional even if they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position . . . and fail to provide officials with guidelines sufficient to prevent arbitrary or erratic enforcement . . . A law is vague as a matter of due process if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. [citations omitted.]
But what is vague or unclear about this statute? Indeed, it is difficult to conceive of a statute which is more precise. It makes absolutely clear that the possession of certain drugs,
including cocaine, with intent to distribute within 1,000 feet of school property or a school bus is prohibited. The elements of the offense are clearly stated and persons of common intelligence cannot reasonably differ as to its meaning or application. The statute establishes clear guidelines which informs the public what is prohibited and instructs the police what is permitted, thereby deterring arbitrary and discriminatory law enforcement. The statute is not vague.
The defendant next argues that the statute is overbroad. In determining whether a statute is overbroad a court must ascertain whether it reaches a "substantial amount of constitutional conduct," State v. Lee, 96 N.J. 156, 164 (1984), and extends further than is necessary to accomplish a legitimate state purpose. In other words if the statute reaches not only illegal conduct, but also constitutionally protected conduct it is overbroad. Generally, the protected conduct involves First Amendment rights and the overbreadth challenge is made to prohibit the infringement of one's freedom of expression. See Town Tobacconist v. Kimmelman, supra 94 N.J. at 125-6. But what constitutionally protected right could possibly be infringed by this statute? The possession of illegal drugs with intent to distribute is prohibited anywhere and anytime. The statute does not punish lawful activity; indeed, it does not even create a new offense. It simply provides for an additional offense if the offense continues into a zone which is within 1,000 feet of school property or a school bus. The overbreadth challenge is rejected.
It is next contended that the statute unconstitutionally negates the requirement of a mens rea by providing that it shall be no defense that the actor was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property. N.J.S.A. 2C:35-7. However, a mens rea is not mandated under all circumstances. For example, State v. Des Marets, 92 N.J. 62 (1983) ...