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State v. Shelley

205 N.J. 320, 15 A.3d 818 (2011)

SCHOOLS — For the purpose of New Jersey’s law that makes it an offense to distribute illicit drugs within 1,000 feet of an elementary school – day care centers, nursery schools, and preschool programs are not considered to be elementary schools.

An individual was convicted of the third-degree offense of distributing cocaine within a school zone. He admitted to selling cocaine within 1,000 feet of an early childhood development school, a franchisee of a nationwide chain of licensed day care providers offering programs for children from infancy through age six. This particular school included a kindergarten class with ten full-time students. After his arrest and indictment, the man filed a motion to dismiss the charge on the basis that the school was not an elementary school for the purposes of the school-zone statute. The lower court denied the motion, finding that the presence of a kindergarten class on the premises was dispositive. The man then entered a conditional guilty plea to the charge, reserving the right to appeal the disposition of his motion to dismiss.

Applying rules of statutory interpretation that call for a plain language understanding and strict construction of a penal statute, and invoking the doctrine of lenity where a penal statute is found to be ambiguous, the Appellate Division vacated the conviction. On remand, the lower court concluded that the addition of a ten-student kindergarten to a pre-school did not make the facility into an elementary school for purposes of the statute.

On further appeal, the New Jersey Supreme Court noted that New Jersey law makes it an offense to distribute illicit drugs within 1,000 feet of any school property used for school purposes or owned by, or leased to, any elementary or secondary school or school board. However, neither “school” nor “elementary” were explicitly defined in the statute. The Court noted that the dictionary defines an elementary school as the first six to eight years of formal education or as a school usually for the first six or eight grades; a kindergarten is defined as a program or class for four-to six-year-old children as an introduction to regular school. The State and the defendant both pointed to various specialized educational provisions in State Department of Education’s regulations, each of which made passing reference to the terms, but none of which definitively established whether a kindergarten class, standing unconnected to other elementary grades, constituted an elementary school. Because of this ambiguity in the application of the statute’s words, the Court turned to the statute’s legislative history to determine the legislature’s intent.

The Court noted that the school-zone statute was adopted in connection with the Comprehensive Drug Reform Act with the purpose of combating the infiltration of illicit drugs and drug trafficking activity into school safety zones. As originally introduced, the bill would have required enhanced sentencing for drug offenses occurring within 1,000 feet of the property surrounding any school in the state that provide instruction for children up to and including the age of 18 years. In committee, the legislature narrowed the bill’s scope. The General Assembly again narrowed the scope, explaining in official comment, that the definition of school property did not include nursery, preschool or day care centers. Later, the statute was amended to the form under which the defendant was convicted. With the final amendment, the legislature commented that the original intent of the law was to create a permanent drug safety zone around schools, in recognition that children routinely congregate on school property.

Thus, the Court found that the legislature chose to limit the meaning of a school zone to the areas around elementary or secondary schools, rather than around any school serving children or providing pre-collegiate instruction. The plain legislative intent to exclude day care providers, nursery schools, and preschool programs suggested that the statute was not meant to apply to a facility such as this particular school, a licensed day care provider.

The Court further surmised that the legislature did not consider nursery school students reasonably vulnerable to the drug culture, presumably because such young children are constantly supervised and do not congregate outside of the watchful eyes of parents and teachers. Noting that courts are required to err on the side of lenity when confronted with an ambiguous statute, the Court held that the private day care center did not constitute an elementary school for purposes of the criminal statute.


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