On appeal from Superior Court of New Jersey, Law Division, Passaic County.
J.h. Coleman, Brody and Muir, Jr. The opinion of the court was delivered by Brody, J.A.D.
Following a jury trial, defendant was convicted of third-degree possession of controlled dangerous substances (CDS) with the intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(3), and third-degree possession of CDS with the intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (the statute). Those statutes are a part of the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq. The judge imposed concurrent five-year terms of imprisonment, including a discretionary 2 1/2-year period of parole ineligibility for possession with the intent to distribute and a mandatory 3-year period of parole ineligibility for possession with the intent to distribute near school property. The judge also imposed fines and statutory fees and penalties including suspension of defendant's driver's license for an aggregate period of 24 months.
The State presented evidence that police stationed on the roof of an unidentified apartment building observed defendant standing on the sidewalk receiving money in exchange for small unidentified objects which he obtained from under the wheel of a nearby parked car. When arrested, moments after these observations, defendant was in possession of $93 cash and three tinfoil packets of cocaine. The arresting officers found nine glassine envelopes containing heroin under the wheel of the parked car.
Defendant argues that the trial judge should have granted his motion for judgment of acquittal as to the charge of possession near school property because the State failed to prove an element of the offense. At the time of the offense, the statute provided in relevant part:
Any person who violates subsection a. of N.J.S. 2C:35-5 by . . . possessing with intent to distribute a controlled dangerous substance . . . 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 . . . is guilty of a crime of the third degree. . . . [Emphasis added.]
Defendant argues that although the State presented evidence that he possessed CDS with the intent to distribute while within 1,000 feet of Paterson Public School # 11, it failed to present evidence that the Paterson Board of Education "owned" the property. The trial judge denied the motion by taking judicial notice that the Board owns all public school property in Paterson.
After pointing out that a court may take judicial notice of "statutory law" pursuant to Evid.R. 9(1), the State argues in its brief that a local school board owns all property used for school purposes by reason of N.J.S.A. 18A:20-1. That statute reads in relevant part:
The title to the property, real and personal, of each school district, and the title to all property, real and personal, which shall be acquired for school purposes in the district, is vested and shall vest in the board of education of the district. . . .
Although that statute provides that title to publicly owned property used for public school purposes in a school district is vested in the local school board, a school board need not own all property in the district that is used for public school purposes. Pursuant to N.J.S.A. 18A:20-4.2, a local school board may lease property up to 50 years for school purposes. Apparently after realizing that a school may operate on leased property, the Legislature amended N.J.S.A. 2C:35-7 to include property "owned by or leased to any elementary or secondary school or school board." L. 1988, c. 44, § 3.
We are mindful that principles of due process require that penal statutes be strictly construed to protect a defendant from an incriminating interpretation if a non-incriminating interpretation is also reasonable. State v. Valentin, 105 N.J. 14, 17-18, 519 A.2d 322 (1987). The due process concern is "to avoid fundamental unfairness which might result when those penalized could arguably be said to have misunderstood positive law, or, more ...