State v. Ogar

• Decision Date: 03 January 1989
• Citation: 551 A.2d 1037,229 N.J.Super. 459
• Parties: , 51 Ed. Law Rep. 159 STATE of New Jersey, Plaintiff-Appellant, v. Theresa Lee OGAR, Defendant-Respondent. STATE of New Jersey, Plaintiff-Appellant, v. Albert J. LOMBARDI, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 459

229 N.J.Super. 459

551 A.2d 1037, 51 Ed. Law Rep. 159

STATE of New Jersey, Plaintiff-Appellant, v. Theresa Lee OGAR, Defendant-Respondent.

STATE of New Jersey, Plaintiff-Appellant, v. Albert J. LOMBARDI, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Dec. 6, 1988.

Decided Jan. 3, 1989.

Joseph Connor, Jr., Asst. Prosecutor, for plaintiff-appellant, (Lee S. Trumbull, Morris County Prosecutor, attorney, Joseph Connor, Jr., Morristown, on the brief).

Robert Seelenfreund, Asst. Deputy Public Defender, East Orange, for defendants-respondents, (Alfred A. Slocum, Public Defender, attorney, Trenton, Robert Seelenfreund, East Orange, of counsel, and on the brief).

Cherrie Black, Deputy Atty. Gen., for amicus curiae State of N.J., (W. Cary Edwards, Atty. Gen., attorney, Cherrie Black, Trenton, of counsel, and on the brief).

Before Judges PRESSLER, O'BRIEN and SCALERA.

The opinion of the court was delivered by

SCALERA, J.A.D.

These appeals involve construction of those provisions of the Comprehensive Drug Reform Act of 1986 (the Drug Act) which proscribe the distribution and possession of drugs within defined school zones in this State. Although the two indictments arise from markedly different factual patterns, the same legal issues are implicated and we therefore address them in this consolidated opinion.

Both defendants filed timely motions to dismiss the particular counts of the indictment returned against them. The crimes charged in these counts were based on a section of the Drug Act, codified as N.J.S.A. 2C:35-7, which defendants contend was violative of both the federal and state constitutions on the grounds of vagueness, overbreadth and double jeopardy. After hearing motions separately in each of the cases, the same trial judge dismissed counts three and four of the Ogar indictment as well as count four of the Lombardi charges for reasons explained hereafter. We granted the State's motion for leave to appeal in each case.

For purposes of these proceedings the parties have agreed to the factual predicates for the indictments returned against each of the defendants.

I.

On August 29, 1987 at about 9:30 a.m., Theresa Lee Ogar visited an inmate at the Morris County Jail which is located within 1,000 feet of Morristown High School. During her visit, she left the jail in order to retrieve a pair of sneakers from her car. Upon reentering the jail, a corrections officer discovered two bags of heroin concealed inside the sneakers. A laboratory test revealed that "the two bags contained a trace amount of heroin and 0.01 grams of heroin." For purposes of this appeal, defendant acquiesces in the State's theory that she intended to smuggle the drugs into the jail.

Ogar was indicted for violating various provisions of the Drug Act provisions and more specifically in the third and fourth counts respectively, was charged with possession with intent to distribute heroin and attempted distribution of heroin "within 1,000 feet of any school property or school bus or while on any school bus" in violation of N.J.S.A. 2C:5-1 and 2C:35-7.

The trial judge concluded in that matter that, (1) that portion of N.J.S.A. 2C:35-7 punishing drug offenses within 1,000 feet of a school bus was unconstitutional on its face; (2) those counts of the indictment were fatally defective for charging the school-bus language in a case not involving a school bus; (3) the 1,000-foot criterion was constitutional as applied to the 1,000 foot distance from school property (as opposed to from a school bus); and (4) the statute was not intended to apply to offenses committed in a county jail, regardless of its proximity to a school. He therefore dismissed counts three and four of Ogar indictment.

II.

As to Albert J. Lombardi, the facts show that at about 5:30 a.m. on July 18, 1987, the Rockaway Township Police received an anonymous tip that Stephen R. Kowalewski, Lombardi's codefendant, was selling drugs at Mt. Hope Products, Inc. in Rockaway Township. The tipster said that Kowalewski would be driving a blue Dodge pickup truck. Police set up a surveillance at that location, and observed Kowalewski drive away in the pickup truck with Lombardi riding as a passenger. The police officer followed the truck on its route for at least two miles and finally pulled it over in front of a public school. In his report the officer explained that he did not stop the truck earlier "because the road was wider at that point [in front of the school] and that it was simply the first good, convenient place to make a stop." For the purposes of his motion the defendant did not object to the trial judge's assumption that the officer had acted in good faith and was not motivated by any desire to maneuver "defendant into a school zone to zap him with an added charge." ¹

The officer discovered a stun gun on the front seat of the truck in addition to .07 grams of cocaine on defendant's person and .24 grams of cocaine in the truck. The search also revealed a can with a false bottom which contained 6.94 grams of cocaine and $600 in cash. The legality of the search leading to discovery of such evidence is not an issue on this appeal.

Lombardi and Kowalewski were indicted for various drug offenses and additionally, were charged in the third count with possession with intent to distribute cocaine "within 1,000 feet of any school property or school bus, or while on any school bus" in violation of N.J.S.A. 2C:35-7.

With respect to Lombardi's motion, the trial judge acknowledged the Legislature's power to enact such legislation resulting in the increase of criminal sanctions for drug offenses committed on or near school property in light of the special vulnerability of school children to the harmful impact of drugs. However, he then went on to require that "some reasonable limitations" be "read into this statute" in order "to give fair and reasonable effect to the expressed intention of the legislature" which he identified as being "to protect school children from exploitation and abuse by drug distributors." The trial judge opined that otherwise enforcement of that law literally "would result in clearly frivolous or inappropriate or unfair results, having nothing to do with protecting school children." He characterized the Lombardi arrest as "a moving offense that has no relationship to the school property," and observed that such a fortuitous nexus could not have been intended by the Legislature to come within the drug law's sweep. Accordingly, he dismissed the third count charging Lombardi with violation of N.J.S.A. 2C:35-7.

III.

The State, represented by the Morris County Prosecutor's office, as well as amicus Attorney General, contends that the trial judge erred in construing N.J.S.A. 2C:35-7 to the effect that there has to be some "functional" or "sociological" relationship between the proscribed drug activity and the activities normally to be found in a defined school zone. We agree.

N.J.S.A. 2C:35-7 was enacted as part of the Comprehensive Drug Reform Act of 1987, which became operative on July 9, 1987. See Official Commentary to the Comprehensive Drug Reform Act, 9 Criminal Justice Quarterly 147, 149 (1987) (Commentary ). At the time of these offenses that section provided: ²

Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by any elementary or secondary school or school board, or within 1,000 feet of any school property or school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment.... [ N.J.S.A. 2C:35-7].

A defendant violating this section is exposed to greatly increased penalties of incarceration and fines, the particulars of which are not now relevant. N.J.S.A. 2C:35-7. However, the requirement of an enhanced penalty provided by that section may be waived by negotiated agreement with the State. N.J.S.A. 2C:35-12.

The legislative purpose which prompted the enactment of the new drug law is well documented. The statute itself expresses that:

It is also the policy of this State to afford special protection to children from the perils of drug trafficking, to ensure that all schools and areas adjacent to schools are kept free from drug distribution activities, and to provide especially stern punishment for those drug offenders who operate on or near schools and school buses, who distribute to juveniles, or who employ juveniles in a drug distribution scheme. [ N.J.S.A. 2C:35-1.1c.]

Secondly, the Commentary, which is "part of the formal legislative history" of the act, Commentary at 148, contains the following relevant explanations of N.J.S.A. 2C:35-7:

This section, which is roughly modeled after federal law found at 21 U.S.C. § 845a, effectively creates a drug "safety zone" around schoolyards in recognition not only that children, who are often the targets of distributors, congregate there, but also that areas surrounding schools must be kept drug free if they are to serve as the primary medium for educating young people as to the dangers of drug use.

....

[T]his offense focuses entirely on the dangers associated with the infiltration of illicit drugs and drug trafficking activity into school safety zones....

The protected school safety zone includes all school property including playgrounds and athletic fields, and further extends 1,000 feet in all directions (measured "as the crow flies") from the outermost boundary of the school grounds or campus, and not from the perimeter of the school building itself.... It does not matter in a prosecution under this section whether children were actually present or whether the school was in session at the time the offense occurred. Rather, this section...