On appeal from the Superior Court, Appellate Division, whose opinion is reported at 256 N.J. Super. 563 (1992).
The opinion of the court was delivered by
Defendant, Charles Thomas, was convicted of possession of cocaine with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7. The issue presented in this appeal is whether the State produced sufficient evidence for a jury to conclude that the school property was "used for school purposes." A divided panel of the Appellate Division affirmed the conviction, the Dissenting member concluding that the State had failed to sustain its burden of proof. 256 N.J. Super. 563, 572-74 (1992). The appeal comes to this Court as of right. R. 2:2-1(a)(2).
Although the trial evidence included by stipulation a map "depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes," as authorized by N.J.S.A. 2C:35-7, the jury was not instructed that the map presumptively established that the school property depicted thereon was "used for school purposes." We undertake in this opinion to elaborate on the manner in which the statutorily authorized map may be used to prove the elements of the school zone offense. Infra at (slip op. at 6-11). Nevertheless, we agree with the Conclusion reached by the Appellate Division majority that the evidence in the record was sufficient to permit the jury to "infer that a school [was] used for school purposes," 256 N.J. Super. at 571, and therefore affirm the judgment below.
In October 1987, Detectives Schneider and Donnellen of the Newark Police Department were on patrol in the vicinity of the Madison Avenue School. They stopped their vehicle alongside a jacked-up Toyota with its front tires spinning in reverse. Two men, later identified as defendant and Calvin Black, were in the front seats. Detective Schneider walked to the front-passenger door of the Toyota. He testified that he had seen in plain view various items in the vehicle that he had recognized as paraphernalia used to package drugs. A search of the vehicle uncovered nine tinfoil packages, which were later tested and found to contain cocaine. The detectives arrested defendant and Black.
Defendant was indicted for several offenses, including possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7. At trial, defense counsel stipulated to the admissibility of a "1000' drug free zone map," which the prosecution then offered into evidence. The prosecutor questioned Detective Schneider about the map:
Q. Officer, I going to show you * * * what has been marked S-5 and placed in evidence. Do you know what that is, Officer?
A. Yes. This is a map indicating where the schools are in the City of Newark and this portion of the City of Newark would be 1,000 feet radius of the school which is marked with a circle.
Q. Could you mark on this map where the defendant's automobile was located when you made the arrest?
A. Right here. That would be 799 S. ...