New Jersey Drug Arrest Series Part II

The School Zone Offense (6 of 10)

One who distributes or possesses with intent to distribute, a CDS within 1000 feet of a school or school bus has committed a separate crime with exposure to a three-year minimum mandatory term of incarceration without parole opportunity and a fine of up to $150,000. (School Zone Offense). If, however, the substance subject of the charge is less than one ounce of marijuana, the maximum term of imprisonment without parole is one year.

In a School Zone Offense, the government must prove that there has been a violation of one of the statute’s enumerated crimes (i.e. distribution, possession with intent to distribute, etc.) within 1000 feet of a school bus or property owned or leased by a school, which includes playgrounds and athletic fields where there is some reasonable indication that the property was "regularly, consistently and actually" used for a school purpose.

It is no defense to say that the school or school facility was closed for the summer; that the event occurred after school hours; or that no school children were present. In essence, the Drug Statute creates a 24-hour, 7-days-a-week safe-zone for children. Moreover, an arrestee does not have to intend to distribution a drug within a school zone to be convicted of the crime and his ignorance of his presence in a school zone is irrelevant. The crime is virtually a strict-liability offense in that there does not have to be an intent to distribute a CDS in a school zone to be convicted of the offense.

One can be convicted of a School Zone Offense by merely riding a bicycle through a school zone, in possession of enough CDS and other contraband items that will allow a jury to conclude that the possession of CDS was with intent to distribute. There can also be a conviction of a School Zone Offense even if the arresting officer first notices illicit or suspicious conduct outside a School Zone, follows the person for a period of time and effectuates an arrest within a School Zone. Finally, one may be found guilty of a School Zone Offense if he/she is located in a School Zone, but, the drugs are outside the Zone. In the case that developed this principle of law the court looked to concepts of a constructive possession which have been identified above.

In order to establish the 1000-foot distance component of this crime, the government will generally use a map, which must have been approved by municipal ordinance or resolution and has been kept on file in the municipality where the offense occurred. Once the map is properly authenticated and admitted into evidence, the jury can presume that the site of the incident was, in fact, a school property used for school purposes. Even if a school-zone map is not produced, and that is an unlikely event, the government can establish that the violation occurred within 1000 feet of a school zone by other means. In one case, a measuring tape was successfully used to establish the 1000-foot requirement, even though the tape’s accuracy had not been certified by the State Division of Weights and Measures. ¹

As to the facts needed to establish the "school purpose" element of a School Zone Offense, it has been said that if a school is located on the property, its mere presence is enough to establish that it is used for a school purpose and, that is so, despite the fact that, courts have recognized that schools are sometimes permanently closed or put to other non-school uses. In some situations, the "school purpose" issue may not be so evident. In one case, an athletic field owned by a town and used by the town’s people was determined to be "school zone" property, where it was leased to a parochial school for its athletic events only on certain days and times. In that case, the court noted that the jury’s analysis on the "school purpose" issue can be influenced by "Drug Free School Zone" signs; other signs, flags or banners indicating school use; published schedules; newspaper articles, the presence of uniformed children on the playing field and even lease agreements that may not have been publicly filed. Ultimately, the "school purpose" issue must be resolved by a jury.

Merely because a school uses property does not make the statute applicable, however. The property must be owned or leased by the school. Thus, a local park used from time to time by a school, but also used by other organizations and the general public, did not become subject to the statute. The statute will not apply if it can be shown that the school has been previously closed and was not being used for a school purpose at the time of the offense.

There may be a defense against a School Zone Offense, however, if it can be shown that the incident took place in a private residence; that the people present were all over 17- years- of-age; and that the incident did not suggest profit as a motive. Each of these factors must be establish by the accused by a preponderance of the evidence, which is the burden of proof used in civil cases, even though this is a criminal offense. Mysteriously, this defense did not apply to a transaction that occurred in a prison facility between a prisoner and a visitor within 1000 feet of a school zone.

A drug-dependent person with no prior convictions for distribution or possession with the intent to distribute, may escape the mandatory term of imprisonment of a School Zone Offense, provided he/she agrees to participate in a long-term drug program. See specific information relative to this program below.E. Public Property Offense

Distribution or possession with the intent to distribute a CDS within 500 feet of a public housing facility, a public park or a public building, can result in a conviction for a second-degree crime, which will require a mandatory prison term of 5 to 10 years. (Public Property Offense). If the substance is less than one ounce of marijuana, however, the offense is a third-degree crime, which can require a maximum term of imprisonment for up to five years.

Many of the rules applicable under a School Zone Offense are applicable under this section of the Drug Statute, including the government’s ability to use an approved map to establish distance and one’s inability to claim ignorance as a defense.

Notably, however, while a School Zone Offense requires the government to prove that the school property was used "regularly, consistently and actually", that rule may not apply to a Public Property Offense. In one case, a person was convicted of Public Property Offense where he was within 500 feet of a museum that did not have regular hours of operation and was open only by appointment. In that case, the court specifically distinguished the "regularly, consistently and actually" element of the School Zone Offense.

An accusation under this part of the Drug Statute may be defended by showing that there was no intent to derive a profit from the prohibited conduct and that the conduct did not involve a person who was 17-years-of-age. The burden of proving this defense is by a preponderance of the evidence. Thus, one who shares or gives a CDS to a person who is over 17-years-of-age, may not be convicted of a Public Property Offense. Under these same circumstances, however, there can be a conviction of distribution of a CDS or possession with intent to distribute a CDS, which is covered under another section of the Drug Statute. Indeed, under most circumstances, the violator will be charged under both of these sections of the Drug Statute. If, however, there is a conviction under both sections, there should be a merger ²of the offenses for sentencing purposes, which will require the trial court to impose the harsher of the penalties authorized by the Public Property Offense statute.

An Analysis of the Kingpin Statute (7 of 10)

One can be imprisoned for life upon conviction as a drug kingpin under the Drug Statute (King Pin Statute). This aspect of the Drug Statute also allows a parole disqualifier of up to 25 years.

To convict a person under the Kingpin Statute, the Government must prove: (1) a conspiracy with two or more persons; (2) that the purpose of the conspiracy included a scheme to manufacture, distribute or dispense in the state certain CDS as defined by the Kingpin Statute; (3) that the accused was a financier, organizer, supervisor or manager of at least one other person; and (4) that the accused occupied a high-level position in the conspiracy.

Some of the factors that maybe used to assist the government’s effort to obtain a conviction under the Kingpin Statute are: (1) the number of people involved in the enterprise; (2) the actor’s income, net worth and the life style; (3) the purity of substance; and, (4) the amount of money involved in the subject transactions.

Interestingly, the Kingpin Statute does not require the government to prove that a profit was realized by the enterprise. To be a "kingpin" there must be an organization of people engaged in drug activities in which the "kingpin" maintains a significant or important position and exercises "substantial authority or control over the activity." The core question is usually whether the kingpin occupied a "high-level position", which turns on the scope of the kingpin’s authority or control and the number of people who are influenced by his/her power.

Under the Kingpin Statute, the government does not have to prove the exact number of people involved in the illicit scheme or enterprise. Unlike the federal kingpin statute, New Jersey’s Statute does not require the accused to have three prior convictions or to show a "pattern" of illegal behavior. New Jersey requires only two additional conspirators where the federal kingpin statute requires at least five.

In a case decided in 1993, the New Jersey Supreme Court found that a so-called self-styled "middle man" was a kingpin where, among other things, he bragged about the number of years he was in the drug business and was associated with two lackeys who he "ordered" to find a scale for a transaction, to count money and to direct vehicular flow on his property.

The breath of this decision required a dissenting justice to observe that:

Under the majority's analysis, any three people who agree to sell drugs may be sentenced as kingpins. To test the principle, consider the case of three young people caught up on drugs. Two of them decide to go to New York to buy several hundred dollars worth of drugs. They invite a third with a car to join them. To afford their habit, they decide to sell some of the drugs to others in their neighborhood. One of them arranges the trip to New York and tells the others where to go in the City to get the drugs. Another, on return, decides how to get rid of the extra drugs. Which of these would the Legislature view as a "drug kingpin"? At least two of them fit the majority's definition. Is that all there is to the drug-kingpin law?

ANALYSIS OF SELECT DEFENSES (8 of 10)

A. The De Minimus Defense

Under the Criminal Code, the Superior Court assignment judge in the county where a case is pending can dismiss a prosecution that is too trivial to warrant a conviction. In cases involving trace amounts of a CDS, however, the courts have consistently rejected arguments that a dismissal under this section of the statute is justified. On one occasion, a court observed that “possession of any quantity of CDS, no matter how small, is part and parcel of the State’s overall drug problem.”


B. The Mere Presence Defense

Given the enormous variables associated with joint and constructive possession concepts, one need not be possessed of any great genius to recognize the potential of criminal liability the moment one enters a home, an apartment or a motor vehicle where a CDS is present. Indeed, as a practical matter, law enforcement officials will usually charge everyone found in the premises or the vehicle with a violation under the Drug Statute, whether the offense is mere possession or the more serious possession with intent to distribute, even though there is some evidence that indicates that one or some of the people at the site were ignorant of the presence of the CDS. The government will take this blunder-buss approach with the hope that the harshness of the sentence associated with the offense will coerce an accused to act as a “snitch” against the others. Unfortunately, this system of justice clearly nurtures a play-for-pay mentality, where the first person to ring the prosecutor’s bell may very well walk away from a virtual hell-hole of imprisonment without liability even though the snitch may have been the most culpable of all the actors.

In analyzing cases of this nature, however, case law has established that the mere presence of a person at a location where CDS is found is not sufficient, in and of itself, to sustain a conviction for possession of a CDS or possession with intent to distribute a CDS. Unfortunately, there is a whole “constellation” of other factors that the government may use to overcome the “mere presence” rule in its journey toward a conviction. Some of those facts included: (1) statements that may have been made; (2) furtive or suspicious conduct before or after the CDS was detected; (3) the location of the CDS; (4) the arrestee’s proximity to the CDS; (5) the arrestee’s relationship with other people; (6) the arrestee’s ownership interest in the place where the CDS was detected; (7) the quantity of the drug; (8) the amount of cash in the arrestee’s possession; and,(9) the nature and extent of drug paraphernalia located at the site.

C. The Fleeting Moment Defense

One who receives an object or substance from another and immediately recognizes it to be a CDS and then divests himself/herself of it shortly after learning of its illicit nature, may not be convicted of a possessory offense, because the possession was only for a “fleeting moment.” The person who holds an object belonging to another just long enough to discover its character and promptly rejects control over it, can not be guilty of possession of the object because he/she did not develop the necessary intent to control it. This rule is narrowly drawn, however.

D. The Entrapment Defense

There are two types of entrapment recognized by the law. One is defined by statute (Statutory Entrapment). The other is influenced by constitutional considerations that finds their roots in the Due Process clauses of the state and federal constitutions. (Due Process Entrapment).

Statutory Entrapment is an affirmative defense, which the accused must prove by a preponderance of the evidence. The defense has both subjective and objective elements. The subjective element occurs when the government plants a criminal scheme into the mind of a person, who would not ordinarily have committed the offense. The objective element occurs when the government’s conduct is so egregious in nurturing a person’s criminal conduct as to “impugn the integrity of the court that permits a conviction.” All issues associated with Statutory Entrapment must be determined by a jury.

Due Process Entrapment, on the other hand, concentrates exclusively on the government’s conduct and the extent of the government's involvement in the commission of the crime. The standard is whether the government’s conduct was “patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness.” The analysis requires close scrutiny of the government’s conduct, given all attending circumstances, including whether: (1) the government or the accused was primarily responsible for creating and planning the crime, (2) the government or the accused primarily controlled and directed the commission of the crime, (3) objectively viewed, the methods used by the government to involve the accused in the commission of the crime were unreasonable, and (4) the government had a legitimate law enforcement purpose in bringing about the crime. Unlike Statutory Entrapment, contests involving Due Process Entrapment issues must be resolved by the court. Notably, Due Process Entrapment can be proven even though a defendant fails to establish Statutory Entrapment.

Again, while Statutory Entrapment places the burden of proof on the defendant, the burden of proof in a Due Process Entrapment defense is the government’s responsibility. The state must disprove Due Process Entrapment by “clear-and-convincing” evidence. The reason for this rule is bottomed upon the recognition that the government created the events under scrutiny and since the government has better, if not exclusive control, over the evidence needed to prove Due Process Entrapment, the courts shift the burden to the government. In order for a person to obtain the benefit of this proof-shifting-burden, however, he/she must initially produce some evidence of Due Process Entrapment before the burden can be switched.

SPECIAL RULES OF EVIDENCE (9 of 10)

A. Expert Witnesses

In cases involving the possession of a CDS, intent is a very important consideration. As explained, the penalties for possession of a CDS with intent to distribute are a lot more serious than a simple possession offense. Issues in a legal contest that relate to a person’s intent create difficult proof problems largely because those issues are subjective in nature. Intent can be explained, however, by the circumstances associated with the person’s conduct.

In cases under the Drug Statute the government will use not only circumstantial evidence to prove that a CDS was in a person’s possession with the intent to distribute, but also, expert testimony. The intellectual basis for the use of expert testimony in a drug case is that an ordinary juror can not understand the significance of some of the circumstances attending a person’s possession of a CDS.

Thus, in most, if not all cases involving a charge of possession with intent to distribute the government will use an expert witness with special experience or education in the illicit distribution of a CDS to obtain an opinion as to whether the accused was in possession of the CDS for the purpose of distributing it. In this effort, the government will ask questions of the expert to establish the existence of certain facts that signal possession for a commercial purpose including: (1) the quantity of the CDS; (2) the quality of the CDS; (3) the value of the CDS; (4) the nature of the packaging of the CDS; (5) the location of the arrest; (6) the presence of any drug paraphernalia; and, (7) the presence of large sums of money .

Once some or all of these facts are established the government’s lawyer will next ask the expert the ultimate question and that is whether the accused was in possession of the CDS with intent to distribute.

While an expert may provide an opinion about a person’s intent to distribute a CDS, the law will not allow an expert to provide an opinion as to the person’s guilt. As observed by a dissenting justice of the New Jersey Supreme Court there is little distinction between the two factual propositions.

The use of an expert witness in a drug case will not be allowed if there is a straight forward hand-to-hand drug transaction or if the testimony will be unduly prejudicial to the citizen. Moreover, both the government and its witness must steer clear of questions or testimony that tends to mimic the language of the Drug Statute.

B. Informer’s Privilege

Most states have certain rules that protect the identity of police informers. In New Jersey the Informer’s Privilege is covered by a rule of evidence that states in essence that an informer’s identity does not have to be disclosed. The rule is grounded upon a recognition that government agents can secure information about criminal activity from people associated with criminals only if the government can provide them with anonymity.

The rule is not absolute, however. A court may determine that disclosure is required because it is relevant or “essential to a fair determination of cause. Without a strong showing of need, courts will generally deny a request for disclosure. Thus, the privilege will apply even if the informer introduced the government agent to the arrestee and observed the criminal transaction, but did not participate in it. Disclosure may be required if the informer is an essential witness on a basic issue, actively participated in the crime, the defendant has a reasonable entrapment defense, or any other reasons that would make it unfair not to disclose. The court will only make decisions of this nature on a case-by-case basis where all available factors can be analyzed, including the safety of the informer.

C. Surveillance - Location Privilege

On many occasions the government will set up a surveillance location where its agents can observe and sometimes film drug transactions. The vantage point of these locations may prove to be very important when testing the observations of any investigating police officer. On the other hand, the government will want to keep these locations confidential so as to allow continued effectiveness in interdicting unlawful drug transactions.

To accommodate these compelling and important policy issues, a trial court will initially require the government in a drug case to show that it is entitled to the Surveillance-Location Privilege by proving that a disclosure of the location would endanger lives or property or compromise pending or future prosecutions. Unfortunately, neither the accused nor his/her lawyer can be present when the government presents its proofs on this issue.

If, however, facts are developed at trial that show that non-disclosure of the location will unduly prejudice the defendant’s case, the court will be required to conduct a second hearing where the accused and his/her lawyer are present and all of the proofs can be challenged and analyzed.

In all cases, an accused can cross-examine a law enforcement account about the distance from the crime, the elevation of the location the use of the binoculars and other similar devices.

SPECIAL ALTERNATIVES (10 of 10)

There are limited alternatives to the heavy-handed penalties authorized by the Drug Statute. Those alternatives are usually reserved for first-time offenders who are charged with some of the less serious offenses under the Drug Statute or individuals who are drug dependent. Another alternative involves a negotiated plea agreement.

A. Conditional Discharge

One has been charged with a disorderly persons or a petty disorderly persons offense under the Drug Statute and has not been previously convicted of any other drug related offense in this state or elsewhere, a trial court may allow participation in a supervised treatment program (Program), providing that presence in the community or in the Program will not impose a danger to others. This is a once-in-a-lifetime opportunity. Although, a prior juvenile drug related offense is not an absolute disqualifier, it can be used for purposes of determining whether there is a danger to the community.

The Program is available prior to trial and after trial, but before sentence. If an application for the Program is made after a plea of guilty or a finding of guilt, the court must suspend driving privileges for a period of not less than 6 months and not more than 2 years. A license loss will not ordinarily occur if the application for the Program is made prior to a plea or trial. The ultimate decision, however, is within the trial court’s discretion.

As a condition of the Program, the trial court may require participation in an in-patient drug rehabilitation facility for a period that cannot exceed the maximum period of imprisonment for the offense (i.e. six months for a disorderly persons offense and 90 days for a petty disorderly offense). A term of supervised treatment in the Program can not exceed three years. Upon successful completion of the Program, the case will be dismissed and the arrest or conviction record expunged within six months after the order of dismissal. Note that a conditional discharge will work as a bar to obtaining an expungement on any other convictions in the future.

B. Intensive Supervision Program

For one who is drug or alcohol dependent and has been convicted of certain offenses under the Drug Statute, the court can order placement in an intensive supervision program. (ISP). As a condition of the ISP, the court will require entry into a licensed and approved in-patient drug rehabilitation facility for a minimum term of 6 months. Once released, there will be close and continuous monitoring by the court, the county probation office and treatment specialists to the extent that one’s daily schedule will be carefully controlled. The participant will be responsible to pay the costs of participating in the ISP, grounded upon his/her income and wealth.

In order to place one in the ISP, the court must examine a number of factors produces by the prospective participant, including that: (1) a professional has determined that one is drug or alcohol dependent and will benefit from treatment; (2) he/she was dependent upon alcohol or drugs at the time of the offenses; (3) the offense was committed while under the influence of a CDS or alcohol; (4) no firearm was used; and, (5) he/she will not create a danger to community by being placed on probation.

A violation of an ISP sentence, may result, in the court’s discretion, to imprisonment. A recent decision by the New Jersey Supreme Court has seriously expanded some of the eligibility criteria under the ISP section of the Drug Statute.

C. Plea Agreements

At some point during the litigation process, it may be decided that a person’s best interest would not be served by proceeding to trial. If that decision is made, and only he/she can make that decision, the defense will attempt to negotiate a plea agreement or “plea bargain” to reduce his/her criminal liability. These negotiations will be directed at reducing the sentence, reducing the grade of the offense charged, or both. The level of success in this effort will be influenced by the nature of the offense charged, the experience and capabilities of your lawyer, the merit of any potential defenses and mitigating circumstances.

On the municipal court level, there is a prohibition against plea agreements where the charge is possession of marijuana or hashish, drug paraphernalia or being under the influence of a CDS. There are certain limited exceptions to this rule, however.

D. Expungements

Conviction of certain offenses under the Criminal Code can be expunged, that is removed from one’s record, provided that there are no further convictions for a period of time as defined in the Code. If an expungement is grant