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State v. Ivory

Decided: July 11, 1991.


On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Handler, Pollock, and O'Hern join in this opinion. Justice Clifford has filed a separate concurring opinion. Justice Stein has filed a separate dissenting opinion.


This appeal presents two questions regarding one statute, N.J.S.A. 2C:35-7. The first question asks what constitutes "school property used for school purposes." The second question asks whether, for the statute to apply, a defendant must intend to distribute a controlled dangerous substance within 1,000 feet of school property. The answer to each question lies in an analysis of the Legislature's intent.


On October 27, 1988, defendant, Charles Ivory, rode his bicycle down Newmann Springs Road in Red Bank, New Jersey.

He proceeded through a "park area" (as he described it) and neared the athletic field at the end of Pearl Street in Red Bank.

Count Basie Park contains the athletic field that Ivory rode by on his bicycle. The Board of Education of Red Bank owns Count Basie Park, which it currently leases it to the Borough of Red Bank for recreational use. Red Bank is specifically mandated to assign the use of the field to the Red Bank school system and private or parochial schools in addition to the Department of Parks and Recreation and residents of Red Bank. The priority of the assignments is set forth in the lease agreement. In order to use the field for its athletic teams, Red Bank Catholic High School entered into a ten-year Participation and Contribution Agreement with the Borough under the user, priority-of-allocation rules in the Borough's lease. Under the agreement the school agreed to contribute $100,000 toward the renovation of the field and to pay approximately $34,000 annually for its use of the field. The agreement also specified that Red Bank Catholic High School's "use of the Athletic Field" would "be no less than [its] current use of the Athletic Field." Other, non-school-related recreational activities also take place in the field.

A police officer, acting pursuant to a previously-obtained warrant, stopped and searched Ivory as he rode his bicycle within 1,000 feet of the athletic field. The search revealed 16.98 grams of cocaine and an uncertain amount of marijuana in Ivory's jacket pocket. That discovery resulted in multiple drug charges against Ivory, the most salient for our purposes being the violations of N.J.S.A. 2C:35-7 (third degree possession of cocaine and marijuana with intent to distribute, while within 1,000 feet of school property).

On December 22, 1988, Ivory entered a retraxit plea of guilty to violation of N.J.S.A. 2C:35-7. He described the location of his arrest, acknowledged his possession of the drugs, and

admitted that he might have sold or passed them on to others later that evening.

The court sua sponte postponed Ivory's sentencing in order to decide whether Count Basie Field was "school property." It found that ownership of the Park by the Red Bank Board of Education made this facility "school property" under the statute. Believing that the statute "does not require anything other than that the property was owned by a board of education," the trial court imposed a four-year sentence with a one-year parole bar. The court also imposed various fines.

Ivory appealed. He also made a motion to supplement the record, which the Appellate Division denied. Despite the sparse record provided below, the Appellate Division addressed both the "property" and "purpose" criteria of N.J.S.A. 2C:35-7 and held that "the record establishes that Count Basie Park is owned by the Red Bank Board of Education and is regularly used for public and parochial school athletics; the fact that the property is leased to the municipality and is also used for non-school purposes does not render it other than 'school property' used for school purposes under N.J.S.A. 2C:35-7." The court also rejected Ivory's argument that the statute's scope is limited to those intending to distribute drugs within 1,000 feet of school property used for school purposes, holding that whether "he may not have intended to make distribution within 1,000 feet of school property is irrelevant."

We granted certification, N.J. (1990). We later granted a motion to expand the record to include the lease agreement between the Red Bank Board of Education and the Borough of Red Bank as well as the Participation and Contribution Agreement between the Borough and "St. James Church (Red Bank Catholic)." Based on the more substantial record, we affirm the judgment below.


In determining a statute's meaning, we consider first the plain language of the statute. Kimmelman v. Henkels &

McCoy, Inc., 108 N.J. 123, 128 (1987). In pertinent part N.J.S.A. 2C:35-7 provides 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 controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any 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. . . [in most cases,] 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.

It shall be no defense to a prosecution for a violation of this section that the actor was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property. Nor shall it be a defense to a prosecution under this section, or under any other provision of this title, that no juveniles were present on the school property at the time of the offense or that the school was not in session.

The statute discloses that the Legislature intended to impose strict liability and a mandatory jail term on a person who possesses narcotics with the intent to distribute them while on or within 1,000 feet of school property used for school purposes. That interpretation of N.J.S.A. 2C:35-7 is well-supported not only by the language of the statute but also by the legislative history and commentary. In interpreting a statute, a court must give "primary regard . . . to the fundamental purpose for which the legislation was enacted." New Jersey Builders Owners & Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972). Although N.J.S.A. 2C:35-7 is a penal statute, "the rule of strict construction does not warn that the manifestations of the Legislature's intent should be disregarded." State v. Edwards, 28 N.J. 292, 298 (1958).

Evidence of the Legislature's purpose in enacting N.J.S.A. 2C:35-7 is overwhelming. The Legislature determined that "in order to be effective, the battle against drug abuse and drug-related crime must be waged aggressively at every level." N.J.S.A. 2C:23-1.1c. The Legislature's battle plan called for "special

protection [of] children from the perils of drug-trafficking." Ibid.

The Legislature clearly intended to create drug "safety zones"

around schoolyards in recognition not only that children, who are often the targets of distributors, congregate there, but also that areas surrounding schools must be kept drug free if they are to serve as the primary medium for educating young people as to the dangers of drug use.

This offense focuses entirely on the dangers associated with the infiltration of illicit drugs and drug trafficking activity into school safety zones.

"OFFICIAL COMMENTARY To The Comprehensive Drug Reform Act (Laws 1987, Chapter 106)," reprinted in 9 Crim. Just. Q. 149, 157 (1987) (hereinafter "Commentary").

The Legislature established "a permanent, 24-hour drug safety zone around schools, in recognition that children routinely congregate on school property and schoolyards, before and after the normal school day, and during summer recess and other vacation periods." Ibid. To achieve that purpose the Legislature sought to punish ...

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