State v. Rodriguez

• Decision Date: 25 March 1988
• Citation: 542 A.2d 966,225 N.J.Super. 466
• Parties: , 47 Ed. Law Rep. 556 STATE of New Jersey v. Carlos RODRIGUEZ and Carmen Jiminez, Defendants.
• Court: New Jersey Superior Court

Page 466

225 N.J.Super. 466

542 A.2d 966, 47 Ed. Law Rep. 556

STATE of New Jersey v. Carlos RODRIGUEZ and Carmen Jiminez, Defendants.

Superior Court of New Jersey, Law Division,

Camden County.

March 25, 1988.

Cheryl Hendler Cohen, Camden, for plaintiff (Samuel Asbell, Camden County Prosecutor, attorney; Cheryl Hendler Cohen on the brief).

M.W. Pinsky, Westmont, for defendant, Carlos Rodriguez.

John J. Garagozzo, Cherry Hill, for defendant, Carmen Jiminez.

STEINBERG, J.S.C.

Defendants move to dismiss count three of the indictment which charges them with possessing cocaine within 1,000 feet of a school with the intent to distribute that cocaine. Defendants contend that that statute which also provides for enhanced punishment violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution as well as Art. I, par. I of the New Jersey Constitution.

The statute N.J.S. 2C:35-7 provides, in pertinent part, as follows:

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 a controlled substance analog while on any school property used for school purposes which is owned by an elementary or secondary school or school board or within 1,000 feet of any school property or 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 ... the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole....

The statute, therefore, calls for the imposition of a period of parole ineligibility which shall not be less than three years for any defendant who is convicted of possessing a controlled dangerous substance with the intent to distribute while within 1,000 feet of any school property.

I find the following principles of statutory construction to be pertinent and shall be guided by them in ruling upon defendants' contentions.

First, it is well recognized that courts do not act as a super-legislature. Burton v. Sills, 53 N.J. 86, 95, 248 A.2d 521 (1968). A statute is presumed to be constitutional and will not be declared void unless it is clearly repugnant to the constitution. Paul Kimball Hospital v. Brick Township Hospital, 86 N.J. 429, 446-447, 432 A.2d 36 (1981).

Therefore, the burden is upon the party challenging the constitutionality of the statute to demonstrate clearly that it violates a constitutional provision. Newark Superior Officers Association v. City of Newark 98 N.J. 212, 222, 486 A.2d 305 (1985).

Defendants contend that the statute violates the Equal Protection Clause in that it unconstitutionally affects their right to live where they please. Federal equal protection analysis traditionally involves different tiers or levels of review. Greenberg v. Kimmelman, 99 N.J. 552, 564, 494 A.2d 294 (1985). If a fundamental right or suspect class is involved, the legislative classification is subject to strict scrutiny. To justify the restriction, a state must establish that a compelling state interest supports the classification and that no less restrictive alternative is available. Ibid. With other rights, however, the legislative classification need only be rationally related to a legitimate interest. The standard of review varies, furthermore, with the effect of the governmental regulation upon the affected right. When the effect on a right, even a right that is fundamental, is indirect or insubstantial, the court has applied the rational basis test and upheld a legislative classification. Id. at 565, 494 A.2d 294.

I am satisfied that even if the right sought by defendant to be protected is considered to be a fundamental right the effect of the legislation on that right is indirect or insubstantial and I, therefore, conclude that the "rational basis" test should be applied. There is no constitutionally protected right to distribute controlled dangerous substances or to possess controlled dangerous substances with the intent to distribute. Any effect this statute has on one's right to freely choose a residence is most indirect and most insubstantial.

The Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 et seq. was enacted as a result of the concern of the Legislature for the crisis affecting this state by virtue of the widespread abuse of controlled dangerous substances. In fact, the Legislature expressly set forth its purpose as follows:

Despite the impressive efforts and gains of our law enforcement agencies, the unlawful use, manufacture and distribution of controlled dangerous substances continues to pose a serious and pervasive threat to the health, safety and welfare of the citizens of this state. New Jersey continues to experience an unacceptably high rate of drug-related crime, and continues to serve as a conduit for the illegal trafficking of drugs to and from other jurisdictions. In addition to the harm suffered by the victims of drug abuse and drug-related crime, the incidence of such offenses are directly related to the rate of other violent and non-violent crimes, including murder, assault, robbery, theft, burglary and organized criminal activities. For this reason, enhanced and coordinated efforts designed specifically to curtail drug-related offenses will lead inexorably to a reduction in the rate of crime generally, and is therefore decidedly in the public interest. [ N.J.S.A. 2C:35-1.1(b) ]

N.J.S. 2C:35-1.1(c) goes on to provide, in pertinent part, as follows:

... It is also the policy of this state to afford special protection to children from perils of drug trafficking to insure 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 buses, who distribute to juveniles, or who employ juveniles in a drug distribution scheme....

The Legislature has wide discretion in the creation of recognition of different classes of offenders for separate treatment. In pursuing a legitimate objective it may recognize degrees of harm or possible harm and strike at what it feels more urgently needs repression. If there is some reasonable basis for the recognition of separate classes, and if the disparate treatment of the classes has a rational relationship to the object sought to be achieved by the lawmakers, the Constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the state's objective: The separate treatment must admit of but one conclusion beyond a rational doubt, i.e., that the basis therefore is arbitrary and unreasonable and without relevance to the legislative goal.

[ State v. Smith, 58 N.J. 202, 207, 276 A.2d 369 (1971) ]

Equal protection does not require that all persons must be treated identically, but rather that similar people will be dealt with in a similar manner and that people of different circumstances will not be treated as if they were the same. Schneider v. City of East Orange, 196 N.J.Super. 587, 594, 483 A.2d 839 (App.Div.1984). Unless the legislation creates an inherently suspect classification, a legislative classification will be assumed valid, even if it has the effect of treating some differently from others, so long as it bears some rational relationship to a permissible state interest. Ibid.

I am satisfied that N.J.S.A. 2C:35-7 is part of a comprehensive attempt by the Legislature to respond to the widespread problem of drug abuse and constitutes a valid exercise of the police power to impose special enhanced punishment to meet the legitimate public interest in affording special protection to children from the perils of drug trafficking and does not...