601 A.2d 714 (N.J.Super.A.D. 1991), State v. Santiago

Citation:601 A.2d 714, 253 N.J.Super. 197
Opinion Judge:[10] Stern
Party Name:STATE of New Jersey, Plaintiff-Respondent, v. Francisco SANTIAGO, Defendant-Appellant.
Attorney:[7] Wilfredo Caraballo, Public Defender, attorney for appellant (Joan D. Van Pelt, Deputy Public Defender, of counsel and on the brief).
Case Date:December 24, 1991
Court:Superior Court of New Jersey
 
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601 A.2d 714 (N.J.Super.A.D. 1991)

253 N.J.Super. 197

STATE of New Jersey, Plaintiff-Respondent,

v.

Francisco SANTIAGO, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

December 24, 1991

Submitted Dec. 2, 1991.

Page 715

[253 N.J.Super. 199] Wilfredo Caraballo, Public Defender, for defendant-appellant (Joan D. Van Pelt, Deputy Public Defender, of counsel and on the brief).

Edward F. Borden, Jr., Camden County Prosecutor, for plaintiff-respondent (Harry S. Collins, Asst. Prosecutor, of counsel and on the brief).

Before Judges J.H. COLEMAN and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant pled guilty to possession with intent to distribute cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7, and was sentenced to four years in the custody of the Commissioner of Corrections with three years to be served before parole eligibility. A mandatory $1,000 D.E.D.R. penalty, $50.00 lab fee and $30.00 V.C.C.B. penalty were also imposed, and defendant's driver's license was suspended for six months.

On this appeal defendant argues:

POINT I THE "WITHIN 1,000 FEET OF ANY SCHOOL PROPERTY" PROVISION OF N.J.S.A. 2C:35-7 VIOLATES BOTH THE STATE AND FEDERAL CONSTITUTIONS FACIALLY AND AS APPLIED ( U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. I, PAR. 1) (Not Raised Below).

A. The "Within 1,000 Feet of School Property" Provision of N.J.S.A. 2C:35-7 Is Unconstitutionally Vague On Its Face And As Applied Herein.

B. This Court Should Render N.J.S.A. 2C:35-7 Constitutional By Limiting The Reach Of the Statute To Offenses That Occur Within Schools Or On School Property When School Is In Session And Children Are Present.

C. Application of N.J.S.A. 2C:35-7 To the Case At Bar Denied Defendant Due Process Of Law And Equal Protection Of The Law Under The State And Federal Constitutions.

  1. Defendant Was Denied His Right To Due Process of Law ( U.S. Const. Amend. XIV and N.J. Const. (1947) Art. I, par. 1).

  2. Defendant Has Been Denied His Right To Equal Protection Of The Law ( U.S. Const. Amend. XIV and N.J. Const. (1947) Art. I, Par. 1). [253 N.J.Super. 200]

POINT II THE AUTOMATIC IMPOSITION OF A PERIOD OF PAROLE INELIGIBILITY DUE TO DEFENDANT'S FAILURE TO APPEAR IN COURT FOR SENTENCING IS ILLEGAL AND VIOLATIVE OF THE CODE OF CRIMINAL JUSTICE.

POINT III N.J.S.A. 2C:35-12, WHICH PREVENTS THE JUDGE FROM AMELIORATING A MANDATORY SENTENCE WITHOUT THE PROSECUTOR'S CONSENT, VIOLATES THE DOCTRINE OF SEPARATION OF POWERS AND THE DEFENDANT'S

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RIGHT TO DUE PROCESS OF LAW. ( U.S. CONST. AMEND. XIV; N.J. CONST. ART. 1, PAR. 1; ART. III, PAR. 1).

POINT IV N.J.S.A. 2C:35-12, WHICH PROVIDES FOR MANDATORY DRUG ENFORCEMENT AND DEMAND REDUCTION PENALTIES TO BE IMPOSED ON ALL...

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