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Housing Authority v. Smith

November 6, 1992

HOUSING AUTHORITY OF NEWARK, PLAINTIFF,
v.
LAKEITHA SMITH, DEFENDANT



Fast, J.s.c.

Fast

This is the essence of a decision given in a bench trial on November 2, 1992. This case presented an issue not previously reported, construing the provisions of N.J.S.A. 2A:18-61.1p. Plaintiff Housing Authority of the City of Newark filed a complaint for the summary eviction of defendant, pursuant to the ground stated in N.J.S.A. 2A:18-61.1p, alleging that defendant had been arrested and charged with possession of a controlled dangerous substance, possession with intent to distribute, possession with intent to distribute within 1,000 feet of a school and employing a minor in a drug scheme.

Besides denying the factual allegations, defendant also argued that the complaint was premature because N.J.S.A. 2A:18-61.1p requires that the defendant either have been found guilty of, or pleaded guilty to, the alleged drug violations.

Although the arrest was made on September 6, 1991 and this eviction action had been adjourned several times to permit the resolution of the pending drug charges, those charges still have not been resolved. A further request to stay this action, pending resolution of the criminal charges, was denied.

Having resolved the factual issues in favor of the plaintiff, the legal issue presented to the court was the construction of the statutory subsection cited above.

Defendant's argument is based upon language in subsection p excepting from the ground for eviction a person who has either (1) successfully completed or (2) been admitted to and continued upon probation while completing a drug rehabilitation program pursuant to N.J.S.A. 2C:35-14, "in connection with his [ sic ] sentence"

for the offense. As noted above, defendant has not yet been sentenced because the criminal charge has not yet been adjudicated.

Defendant's reliance upon the exception [ i.e., for a person who has successfully completed or been admitted to and continued upon probation while completing a drug rehabilitation program pursuant to N.J.S.A. 2C:35-14] is misplaced under the facts of this case. The reason for this Conclusion is that the rehabilitation program as provided in N.J.S.A. 2C:35-14a is available only "whenever a drug dependent person is convicted of an offense" (emphasis added) under certain stated statutes, other than a crime of the first degree. As stated above, the allegation proven through the testimony presented by plaintiff did not relate to use of the substance by defendant; there was no evidence whatsoever even tending to show drug dependence by defendant. Accordingly, the exception from the good cause for eviction provided in subsection p would not have been available to defendant under the facts of this case.

More significantly, the argument of defendant to the effect that a conviction or plea is a required element of the good cause for eviction under subsection p is also misplaced. Although the statutory language does include reference to a "sentence for that offense", I find that reference to the "sentence" for the offense is surplus. Subsection p must be read in pari materia with N.J.S.A. 2A:18-61.1n. Subsection n provides a good cause for eviction where a person has been convicted of or pleaded guilty to, or as a juvenile, has been adjudicated a delinquent on the basis of an act which if committed by an adult would constitute an offense under the "Comprehensive Drug Reform Act of 1987". However, the introduction to subsection p makes it clear that the conviction or plea, etc. is not a prerequisite to eviction under subsection p. Rather, the criterion under p is that "the person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense. . . . under the Comprehensive Drug Reform Act of 1987 . . ." The obvious

distinction between subsections n and p is that under subsection p the criminal charge need not have been adjudicated and plaintiff may proceed in a civil action for removal (i.e., eviction).

N.J.S.A. 2A:18-61.1 was amended, effective April 9, 1991, by Chapter 91 of the Laws of 1991, section 68. That section added subsections n, o, and p to 2A:18-61.1. The enactment corrected statutory references and amended many sections of the statutory law under the title "Courts -- Unification -- Superior Court". The statement by the Assembly Judiciary, Law and Public Safety Committee did not address the substantive change through the addition of these subsections. However, ...


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