On appeal from Superior Court of New Jersey, Law Division, Essex County.
Antell, Baime and Thomas. Baime, J.A.D. Antell, P.J.A.D. (dissenting).
Tried by a jury, defendant was found guilty of conspiracy to distribute a controlled dangerous substance (N.J.S.A. 2C:5-2), possession of cocaine (N.J.S.A. 2C:35-10a(1)), possession of the same drug with intent to distribute (N.J.S.A. 2C:35-5b(3)), and possession of the same drug with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7). After applying the doctrine of merger, the trial court imposed a custodial term of five years on the violation of N.J.S.A. 2C:35-5b(3), and a concurrent five year sentence on the conviction for possession of cocaine with intent to distribute near school property. On the latter conviction, the court imposed a minimum term of three years during which defendant is to be ineligible for parole pursuant to the mandate of N.J.S.A. 2C:35-7. The applicable penalties and laboratory fees were also imposed.
On appeal, defendant contends that (1) the conviction for violating N.J.S.A. 2C:35-5b(3) should have merged with that for possession of cocaine with intent to distribute near school property, (2) the verdict was against the weight of the evidence, (3) N.J.S.A. 2C:35-7 contravenes due process and equal protection, (4) evidence of defendant's prior convictions should have been excluded, and (5) the mandatory penalties provided by N.J.S.A. 2C:35-15 are unconstitutional. The latter three arguments clearly lack merit and do not require Discussion. R. 2:11-3(e)(2). We agree with defendant's assertion that the conviction under N.J.S.A. 2C:35-5b(3) merged with that for possession of a controlled dangerous substance with intent to distribute near school property. The conviction, sentence and penalty imposed for the violation of N.J.S.A. 2C:35-5b(3) are thus reversed and vacated. See State v. Gonzalez, 123 N.J. 462, 588 A.2d 816 (1991).
We come then to defendant's claim that his conviction for possession of cocaine with intent to distribute within 1,000 feet of school property must be reversed because the verdict was against the weight of the evidence. Defendant contends that
the State failed to establish one of the elements of the crime, i.e., that the offense was committed within 1,000 feet of school property used for school purposes. The record discloses that the State admitted into evidence an official map of the City of Newark which indicated that the crime was committed within 1,000 feet of Madison Avenue School. Because no other evidence was presented showing that the Madison Avenue School was used for school purposes, defendant argues that his conviction should be reversed.
Initially, we note that this point was never advanced in the Law Division. Defendant never moved for a judgment of acquittal or for a new trial on the basis of the argument he now asserts. The issue first raised here is not cognizable. R. 2:10-1; see also Thomas v. Romeis, 234 N.J. Super. 364, 369, 560 A.2d 1267 (App.Div.1989); State v. Mangrella, 214 N.J. Super. 437, 441 n. 3, 519 A.2d 926 (App.Div.1986), certif. denied, 107 N.J. 127, 526 A.2d 194 (1987); State v. Lopez, 213 N.J. Super. 324, 330, 517 A.2d 457 (App.Div.1985), certif. denied, 103 N.J. 480, 511 A.2d 657 (1986); State v. Allison, 208 N.J. Super. 9, 14, 504 A.2d 1184 (App.Div.), certif. denied, 102 N.J. 370, 508 A.2d 235 (1985).
Even if we were to consider the merits of defendant's contention, we would not reverse on this basis. In our view, absent evidence to the contrary, proof that the crime was committed within 1,000 feet of a school creates a permissive inference that the property was used for school purposes and requires submission of the question to the jury with appropriate instructions. We are convinced that where the property is designated as an actual school, the jury may reasonably infer that it is being "used for school purposes." In reaching this Conclusion, we recognize that N.J.S.A. 2C:35-7 is only applicable where the criminal act is both committed within 1,000 feet of "school property" and the property is being "used for school purposes." State v. Ivory, 124 N.J. 582, 591, 592 A.2d 205 (1991). We also acknowledge that "[b]ecause a title [or] lease
. . . will sometimes establish only the first prong, we must occasionally look for other indicia of actual use to satisfy the second prong." Ibid. However, here the proofs were not at all ambiguous. Madison Avenue School is just that, a school. In this respect, our Supreme Court recently observed that "[i]n most cases, like that of a school itself, or playgrounds immediately adjacent to the school, use 'for school purposes' [is] self-evident." Ibid. That observation, although made in a slightly different context, is fully applicable here.
N.J.S.A. 2C:35-7 specifically authorizes the admission of an official map in order to establish the proximity of the crime to school property. The ...