New Jersey’s Criminal Code requires rather harsh penalties for convictions where drugs are distributed or possessed with the intent to distribute while in a school zone. The general philosophy of the School Zones Statute (Statute) was pointed to public and private elementary, middle and high schools.  Excepted from the Statute’s terms, however, are day-care centers and pre-schools. Notably, the Statute is altogether different from its federal counterpart which prohibits drug transactions in a broader range of protected areas, including video arcades, swimming pools and even colleges.

A few weeks ago, arguments were entertained by the Supreme Court as to whether the statutory exemptions applied to a facility where kindergarten students attended. In that case the defendant was convicted of selling cocaine to an undercover police officer within 1000 feet of a school in New Brunswick. Although the school’s principles business purpose was to accommodate pre-school students, it also maintained a kindergarten class of approximately ten (10) children. At the trial level, the court determined that the school was an “elementary school” as contemplated by the Statute. As a result of that ruling, defendant entered a conditional plea reserving for appellate purposes the question of whether, under the circumstances of that case, he could be convicted under the Statute. On appeal the conviction was reversed.  There the court determined that simply because this pre-school facility had a ten (10) children kindergarten class could not expose the defendant to liability under the statute.

Some of the arguments and comments of the Court during oral arguments follow:

        •    The government argued that the Appellate Division decision frustrated rather than advance the legislative intent of the statute.  On this point, one of the Justices observed that the statute could have been drawn with clearer language.

        •    Another Justice question whether a person could reasonably discern whether the school was in elementary school, and if not, did that person have reasonable notice of his/her criminal activity.

        •    The defendant’s attorney argued that the Statute was conceived to protect children who could be released on their own into the community and not to protect children who are going to be picked-up and dropped-off by their parents.

        •    One of the Justice asked him whether the Statue would apply if the school was merely dedicated to kindergarten students.