Before Judges Havey, Landau and Collester.
The opinion of the court was delivered by: Collester, J.A.D. (temporarily assigned)
On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Defendants Diana McCague and Thomas Scozzare appeal their conviction for violation of N.J.S.A. 2C:36-6, furnishing or giving a hypodermic needle or syringe to another, on de novo appeal to the Law Division from their convictions of the same disorderly persons statute in the New Brunswick Municipal Court. Defendants argue:
POINT I - OPERATION OF A BONA FIDE NEEDLE EXCHANGE PROGRAM IS CONDUCT WITHOUT FAULT OR CRIMINAL PURPOSE, WHICH DOES NOT INFLICT OR THREATEN SEROUS HARM, AND WAS DONE JUSTIFIABLY AND EXCUSABLY TO REDUCE HIV INFECTION.
POINT II - DEFENDANTS MUST BE ACQUITTED BECAUSE OF THE DOCTRINE OF MEDICAL NECESSITY [N.J.S.A. 2C:3- 2a].
POINT III - ENFORCEMENT OF N.J.S.A. 2C:36-6 "AS APPLIED" VIOLATES THE NEEDLE EXCHANGE PARTICIPANTS' FUNDAMENTAL RIGHT TO LIFE UNDER THE UNTIED STATES AND NEW JERSEY CONSTITUTIONS.
POINT IV - DUE PROCESS (LACK OF NOTICE) AND THE RULE OF LENITY REQUIRE REVERSAL OF THE CONVICTIONS.
POINT V - THE COURT MISCONSTRUED N.J.S.A. 2C:2-11 IN DENYING DEFENDANTS' MOTION TO DISMISS.
We affirm and dissolve our stay of license suspensions.
Defendants are members of the Chai Project, a non-profit corporation organized to promote community health by preventing the spread of AIDS/HIV and transmission among intravenous drug users through drug counseling, encouragement to enter comprehensive drug programs and the exchange of clean needles and syringes for dirty ones. It began operating in New Brunswick in January 1994, and is affiliated with two clinical programs at Rutgers University. The project has been funded by private donations and small foundation grants, and has received an $80,000 grant from the United States Conference of Mayors.
The Chai Project protocol for needle exchange is to give a participant seven syringes and exchange dirty syringes for clean ones on a one-for-one basis. The project then takes basic information from the participant and encourages drug treatment programs. From 1994 through mid-1997, the exchange rate of clean syringes to used syringes increased from 7.1 percent to 87 percent *fn1 . At all relevant times defendant McCague was aware that state law made possession or distribution of a hypodermic syringe or needle a disorderly person's offense.
The New Brunswick Police Department knew of the Chai Project and its needle exchange program in October 1994. McCague, the founder and executive director of Chai, met with Chief Michael Beltranena and explained the program. Chief Beltranena testified that he did not tell McCague to stop the needle exchange program or threaten her with arrest if she continued. In fact he told a local newspaper that the Chai Project's goals were "quite admirable" and that the program workers did not have "criminal intent." However, he testified that these comments represented his personal opinion and described the policy of the New Brunswick Police Department as one of "zero tolerance."
By April 1996, members of Chai became aware of heightened scrutiny by law enforcement, and as a result McCague prepared the following letter to be handed to Chai Project participants:
As you may know, project has been getting some attention from the Attorney General's office, resulting in our being scrutinized by local law enforcement. At least one of our participants has been questioned recently by an "undercover" officer.
In the 18 months since the NBPD has been aware of the activities of the Chai Project, police officers on the street have been willing to "look ...