Before Judges Skillman, D'Annunzio and Fall.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Defendants were charged in the Jersey City Municipal Court with violating a municipal ordinance that prohibits a person from knowingly loitering in a public place where a controlled dangerous substance is being unlawfully distributed. Both defendants sought dismissal of the charges on the ground that the municipal ordinance is preempted by the Code of Criminal Justice (the Code), N.J.S.A. 2C:1-1 to 104-9. The municipal court rejected this defense and found defendants guilty. On appeal, the Law Division also rejected the defense, and affirmed defendants' convictions. Defendants filed separate appeals. Because the appeals involve the same issue, we now consolidate them.
The municipal ordinance that defendants were found to have violated, which was adopted by the Jersey City Municipal Council in 1998 and is entitled, "Prohibiting the Purchase and Acquisition of Controlled Dangerous Substances," provides in pertinent part:
A. It is unlawful for any person, knowingly or purposely to purchase or obtain or attempt to purchase or obtain a controlled dangerous substance or controlled substance analog as defined in N.J.S.A. 2C:35-2, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P. 1970. C. 226. N.J.S.A. 24:21-1 et seq.
B. It shall be unlawful for any person to knowingly loiter about or at any place or area open to the public where a controlled dangerous substance or a controlled substance analog as defined in N.J.S.A. 2C:35-2 is being illegally sold, dispensed, furnished, given away or stored. [Jersey City, N.J., Ordinance 242-10 (Feb. 25, 1998).]
The Code contains a specific legislative declaration that municipal ordinances that deal with areas of criminal law covered by the Code are preempted. N.J.S.A. 2C:1-5d provides:
Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.
In State v. Crawley, 90 N.J. 241 (1982), the Court held that even though the Code does not contain a general prohibition against loitering, a Newark Municipal Ordinance that prohibited loitering was preempted under N.J.S.A. 2C:1-5d. The Court reasoned that because (1) pre-Code law included a specific prohibition against loitering, (2) the proposed Code contained a prohibition against certain forms of loitering, which was eliminated before the Code's enactment, and (3) the Code in its present form deals extensively with street conduct similar to loitering, id. at 245-46, "the absence of a loitering proscription from the Code reflects a state policy to decriminalize such activity." Id. at 247. The Court also commented more generally upon the legislative intent to prohibit local criminal laws dealing with conduct covered by the Code:
The Legislature's central purpose in enacting the Penal Code was to create a consistent, comprehensive system of criminal law.
If municipalities were permitted to adopt local counterparts to provisions of the Code, the express legislative policy of eliminating "overlapping and redundant provisions" from the criminal law would be defeated. This policy, then, implies a general legislative intent to exclude local legislation from areas covered by the Code of Criminal Justice. [Id. at 250-51.]
It is even clearer in this case than in Crawley that the municipal ordinance under which defendants were convicted is preempted by the Code. Although the Court in Crawley concluded that Newark's prohibition against loitering was preempted even though the Code does not contain a general prohibition against loitering, the conduct prohibited by the Jersey City Municipal Ordinance is expressly prohibited by the Code. Paragraph A of the ordinance, which provides that "[i]t is unlawful for any person, knowingly or purposely to purchase or obtain or attempt to purchase or obtain a controlled dangerous substance or controlled dangerous substance analog as defined in N.J.S.A. 2C:35-2," is similar to N.J.S.A. 2C:35-10a, which provides that "[i]t is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog." Paragraph B of the ordinance, which provides that "[i]t shall be unlawful for any person to knowingly loiter about or at any place or area open to the ...