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State v. Vasquez

Decided: June 21, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND VASQUEZ, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Camden County.

Gaulkin, Shebell and Skillman.

Per Curiam

[250 NJSuper Page 458] Defendant Raymond Vasquez pleaded guilty to possession of cocaine with intent to distribute within 1000 feet of school property (N.J.S.A. 2C:35-7) pursuant to a plea agreement that the three-year parole ineligibility term fixed by N.J.S.A. 2C:35-7 would be waived (N.J.S.A. 2C:35-12) and a probationary term within 364 days in the county jail would be imposed. As recited by the prosecutor at the plea, the agreement also contemplated that "should Mr. Vasquez come back before this court on a

violation of probation, the State would not waive at that time the mandatory sentencing provisions of 2C:35-7." Vasquez was then sentenced to a five-year probationary term with conditions that he serve 364 days in the county jail and perform 500 hours of community service; he was also assessed a $1000 DEDR penalty, a $50 forensic lab fee and a $30 VCCB penalty.

Approximately 20 months later, Vasquez pleaded guilty to violation of his probation by failing to report, failing to complete his community service and failing to abstain from illegal drug use. Noting that "the period of parole ineligibility was initially waived for the initial plea only," the judge imposed a four-year custodial term with three years of parole ineligibility. Vasquez appeals from the judgment thereupon entered, urging:

POINT I.

N.J.S.A. 2C:35-12, which prevents the judge from ameliorating a mandatory sentence without the prosecutor's consent, violates the doctrine of separation of powers and the defendant's right to due process of law (U.S. Const. Amend. XIV; N.J.Const. Art. 1, Par. 1; Art. III, Par. 1).

A. N.J.S.A. 2C:35-12 is unconstitutional.

B. N.J.S.A. 2C:35-12 cannot be utilized to circumvent the sentencing guidelines set forth in State v. Baylass, 114 N.J. [169] [553 A.2d 326] (1989) and State v. Molina, 114 N.J. 181 [553 A.2d 332] (1989). (Not raised below).

POINT II.

The "within 1,000 feet of any school property" provision of N.J.S.A. 2C:35-7 violates both the state and federal constitutions facially and as applied (U.S. Const. Amend. V, XIV; N.J.Const. (1947) Art. I, Par. 1). (Not raised below).

A. The "within 1,000 feet of school property" provision of N.J.S.A. 2C:35-7 is unconstitutionally vague on its face and as applied herein.

B. This court should render N.J.S.A. 2C:35-7 constitutional by limiting the reach of the statute to offenses that occur within schools or on school property when ...


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