On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-0983.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Carchman and Parrillo.
Following denial of his motion to dismiss the school-zone charge of a two-count indictment, defendant Jason Shelley entered a conditional plea of guilty to third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 5b(3), and third-degree distribution of cocaine within 1,000 feet of a school, N.J.S.A. 2C:35-5 and 35-7. He was sentenced to two concurrent four-year terms with a three-year parole bar imposed on the school-zone offense. Defendant appeals, arguing that the Goddard School was not an "elementary school" within the meaning of N.J.S.A. 2C:35-7. We agree, and therefore vacate defendant's school-zone conviction.
For purposes here relevant, at his March 30, 2007 guilty plea hearing, defendant admitted selling a "bag" of cocaine to an undercover police officer on April 8, 2005, in the parking lot of the North Brunswick Pub, which is within 1,000 feet of the Goddard School for Early Childhood Development of North Brunswick (hereinafter, the Goddard School). This facility is a local franchise of a nationwide chain, Goddard Systems, Inc., of pre-schools and kindergarten. The website of the nationwide chain advertises: "[w]hether gently holding an infant, encouraging toddlers to share, or providing pre-schoolers with a variety of enriching activities, caring teachers support the healthy development of children from six weeks to six years." See The Goddard School for Early Childhood Development, http://www.goddardschool.com/programming.gspx (last visited June 8, 2009).
The Goddard School, a New Jersey licensed childcare center, has been in operation since November 1999, offering programs for children age six weeks to six years of age. In September 2001, Goddard started a "full day" kindergarten program which instructs ten students, and is taught by a degreed New Jersey State certified teacher.
In his motion to dismiss the school-zone count, defendant maintained that a nursery school/kindergarten is not an "elementary school" within the meaning of N.J.S.A. 2C:35-7. The motion judge disagreed, finding that although the Goddard School was primarily a facility for pre-school children, it did have a kindergarten and thus came within the definition of an "elementary" school under the Education Administrative Code regulations, N.J.A.C. 6A:32-2.1, and "non-public" elementary school, under N.J.A.C. 6A:9-2.1. We disagree. The inclusion of "kindergarten" within the Education Administrative Code's definition of an "elementary school" does not render the Goddard School an elementary school for purposes of the criminal school-zone statute.
N.J.S.A. 2C:35-7 provides, in pertinent part, that one is guilty of a third-degree crime if one distributes, or possesses with the intent to distribute, a controlled dangerous substance on or within 1,000 feet of "school property used for school purposes which is owned by or leased to any elementary or secondary school or school board[.]" The definition of "school property" is thus limited to elementary and secondary schools, regardless of whether the school is public, private, or parochial. N.J.S.A. 2C:35-7; Official Commentary to the Comprehensive Drug Reform Act (Laws 1987, Chapter 206), reprinted in 9 Crim. Just. Q., 149, 157 (Fall 1987) (hereinafter, Commentary). Although neither "elementary" nor "secondary" school is defined therein, it is clear that the school-zone statute "does not apply to pre-schools, day care centers, colleges, universities or proprietary adult vocational schools." State v. Tarver, 272 N.J. Super. 414, 422 (App. Div. 1994); see also Commentary, supra, 9 Crim. Just. Q. at 157. Here, it is undisputed that the Goddard School is a New Jersey licensed child care center and, as the motion judge found, "primarily a school for preschool kids."
The question thus is whether the existence of a kindergarten that services ten students transforms the otherwise exempt childcare center into a covered "elementary school" for the criminal prescriptive purposes of the school-zone statute. Because N.J.S.A. 2C:35-7 does not define "elementary" school, the State suggests, as an aid to construction, that we examine administrative regulations of New Jersey's Department of Education (DOE) promulgated pursuant to the Education Laws, N.J.S.A. 18A:1-1 to :76-4. See, e.g., State v. Ivory, 124 N.J. 582, 589 (1991). However, our review of the pertinent rules does not advance the State's position that the Goddard School falls within the scope of N.J.S.A. 2C:35-7 as an elementary school.
Current DOE administrative regulations define "elementary" as including "kindergarten, grades one through six and grades seven and eight without departmental instruction." N.J.A.C. 6A:32-2.1. Similarly, under the Administrative Code, a private or "nonpublic school" is defined as an elementary or secondary school within the State, other than a public school, offering education for grades kindergarten through 12, or any combination thereof, wherein any child may legally fulfill compulsory school attendance requirements and which complies with the requirements of Title VI of the Civil Rights Act of 1964 (P.L. 88-352). For purposes of this chapter, preschools licensed by the Division of Youth and Family Services that are not under contract to provide services to Abbott districts shall be considered nonpublic schools. [N.J.A.C. 6A:9-2.1 (emphasis supplied).]
Although kindergarten is considered a "grade," N.J.A.C. 6A:9-2.1; N.J.A.C. 6A:32-2.1; see also N.J.A.C. 6A:9-9.1, nowhere in the Administrative Code is it suggested that a facility offering only the "grade" of kindergarten is an "elementary school." To the contrary, N.J.A.C. 6A:9-2.1 requires that to be considered a "nonpublic school," the institution must offer education for grades "kindergarten through 12," or "any combination thereof[.]" (Emphasis added).
Moreover, under the Administrative Code, to qualify as a school, the institution must be one "wherein any child may legally fulfill compulsory school attendance requirements[.]"
N.J.A.C. 6A:9-2.1. Because kindergarten attendance is not mandatory in New Jersey, N.J.S.A. 18A:38-25, -27, a child of traditional kindergarten age (five) cannot fulfill "compulsory school ...