On appeal from Superior Court, Law Division, Passaic County.
Antell, Scalera and Keefe. The opinion of the court was delivered by Antell, P.J.A.D.
In these jointly tried criminal cases, which we now consolidate for purposes of review, defendants appeal from their convictions for possessing cocaine, N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6, possessing cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:2-6, and possessing cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:2-6. Under the indictment, and according to the evidence, defendants had participated together in a transaction involving the distribution of cocaine "within 1000 feet of school property, namely Public School # 28" in the City of Paterson.
The trial court sentenced defendant King on his conviction for possession with intent to distribute within 1000 feet of school property to an eight-year custodial term with a four-year period of parole ineligibility. The court also imposed a concurrent four-year term for possession of cocaine with intent to distribute, which it merged with the simple possession of cocaine. King was also ordered to pay $2000 in Drug Enforcement and Demand Reduction penalties, $60 to the Violent Crimes Compensation Board and $100 in laboratory fees.
Defendant Harris was sentenced for possession with intent to distribute within 1000 feet of school property to a five-year custodial term with a three-year period of parole ineligibility. On the merged convictions for possession of cocaine and possession with intent to distribute, the court sentenced Harris to a concurrent four-year custodial term. This defendant was also ordered to pay a $2000 Drug Enforcement and Demand Reduction penalty, a $100 laboratory fee and a $60 penalty to the Violent Crimes Compensation Board. In addition, Harris's driver's license was revoked for a period of one year.
At the outset of trial defendants and the State stipulated into evidence as Exhibit S-1 a certified copy of a resolution dated September 27, 1988, of the City Council of the City of Paterson, adopting maps of areas within 1000 feet of a school. Also
received by stipulation was one such map prepared by the Paterson Engineering Department showing that the location where defendants' alleged offense occurred was within a 1000-foot radius of a building designated as Paterson's Public School # 28.
After the State rested its case both defendants moved for judgments of acquittal on the charge of possession with intent to distribute within 1000 feet of a school. The ground of the motion was that N.J.S.A. 2C:35-7, under which the charge was returned, requires proof not only, as the indictment charged, that the sale took place within 1000 feet of school property, but also that the school property was "used for school purposes." No such evidence had been adduced. Defendants argued that this requirement is an essential element of the crime, that it is not uncommon for school buildings to be "retired" from school purposes, and that if the building had been in use for school purposes it would have been a simple matter for the State to prove that fact through the testimony of one of the arresting detectives who was familiar with the neighborhood.
Both defendants contend that by stipulating to the admission of the map and accompanying council resolution they conceded nothing more than the physical proximity of the alleged crime location to the school building. They argue that their stipulation did not relieve the State of its burden to prove that the building was being used for school purposes. Noting that use of the map and resolution is specifically authorized by N.J.S.A. 2C:35-7 "to avoid a lot of unnecessary detailing about something which is almost something that a Court can take notice of," the trial court denied the motion. Before doing so it acknowledged that application of the statute was limited to elementary and secondary schools, State v. Baez, 238 N.J. Super. 93, 98, 569 A.2d 268 (App.Div.), certif. denied, 121 N.J. 644, 583 A.2d 335 (1990), and even recognized the possibility that "Public School # 28" might be "some sort of college technically," and therefore not covered by the statute.
The unique feature of N.J.S.A. 2C:35-7 is that it mandates minimum prison terms. These are to be imposed upon any person who possesses with intent to distribute a controlled dangerous substance "while on any school property used for school purposes. . . or within 1000 feet of such school property." (emphasis supplied). Since the purpose of the statute is to protect children of elementary and secondary school age from exposure to drug trafficking, there would be no point in extending the reach of the statute to "school property" used for other than school purposes.
N.J.S.A. 2C:35-7 specifically authorizes in prosecutions thereunder the admission of a map of the kind ...