State v. Shelley

15 A.3d 818, 205 N.J. 320, 2011 N.J. LEXIS 310

• Court: Supreme Court of New Jersey
• Decided: March 9, 2011
• Docket: A-109 September Term 2009
• Status: Published

Opinions

Justice LaVECCHIA

delivered the opinion of the Court.

In this appeal we are called on to review the Appellate Division’s vacation of defendant Jason Shelley’s conviction for the third-degree offense of distributing cocaine within a school zone, in violation of N.J.S.A 2C:35-7 (establishing criminal penalty for selling or attempting to sell drugs within areas designated as school zones). Defendant admitted to selling cocaine to an undercover officer in the parking lot of a pub located within 1,000 feet of “The Goddard School for Early Childhood Development of North Brunswick,” a local franchise of a nationwide chain of licensed day care providers offering programs for children from infancy through age six. This particular Goddard School included a kindergarten class with ten full-time students enrolled. The question raised by this appeal is whether the presence of a kindergarten class converts this childcare center into an “elementary school” for purposes of N.J.S.A. 2C:35-7. Because the plain language and legislative history of our state’s school-zone statute do not indicate that such enterprises as this Goddard School fall within its application, and because we must strictly construe the penal statute in issue, we affirm the Appellate Division judgment.

I.

The record reveals the following information about the childcare facility at the center of this appeal.

The Goddard School for Early Childhood Development of North Brunswick (“Goddard”) is part of a chain of childcare and development centers. Goddard is licensed by the State of New Jersey as a state childcare center and offers programs for children from six weeks to six years old. The North Brunswick location includes one full-day kindergarten program staffed by a state-certified teacher; however, it does not offer schooling above the kindergarten level. Ten kindergarten students were enrolled at Goddard when, on the evening of April 8, 2005, defendant sold cocaine to an undercover police officer while standing within 1,000 feet of Goddard’s facility.

Defendant was arrested and indicted for third-degree distribution of cocaine near school property contrary to N.J.S.A 2C:35-7.¹ He filed a motion to dismiss the charge on the basis that Goddard is not an elementary school for the purposes of the school-zone statute. The trial court denied the motion on March 30, 2007, finding that the presence of a kindergarten class on the premises was dispositive that Goddard was an elementary school for the purposes of N.J.S.A 2C:35-7’s application. Defendant entered a conditional guilty plea to the charge, reserving the right to appeal the disposition of his motion to dismiss. The trial court subsequently sentenced defendant to four years imprisonment with three years of parole ineligibility.

On defendant’s appeal, the Appellate Division vacated the conviction in an unpublished opinion. Applying rules of statutory interpretation that call for a plain language understanding and strict construction of a penal statute, and invoking the doctrine of lenity where a penal statute is found to be ambiguous, the panel concluded that “the addition of a ten-student kindergarten to a pre-school child care center does not render the institution an ‘elementary school[]’” under the language of N.J.S.A. 20:35-7.

II.

When interpreting statutory language, the goal is to divine and effectuate the Legislature’s intent. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). In furtherance of that goal, we begin each such inquiry with the language of the statute, giving the terms used therein their ordinary and accepted meaning. Ibid. When the Legislature’s chosen words lead to one clear and unambiguous result, the interpretive process comes to a close, without the need to consider extrinsic aids. State v. D.A., 191 N.J. 158,164, 923 A.2d 217 (2007) (citation omitted). We seek out extrinsic evidence, such as legislative history, for assistance when statutory language yields “more than one plausible interpretation.” DiProspero, supra, 183 N.J. at 492-93, 874 A.2d 1039.

When interpreting penal statutes, the doctrines of strict construction and lenity also provide guidance. D.A., supra, 191 N.J. at 164, 923 A.2d 217. The doctrine of lenity, a corollary to the doctrine of strict construction, dictates that when ambiguities “cannot be resolved by either the statute’s text or extrinsic aids,” a criminal statute must be interpreted in favor of the defendant. State v. Gelman, 195 N.J. 475, 482, 950 A.2d 879 (2008) (citations omitted).

The offense of distributing illicit drugs within a school zone is set forth in N.J.SA 2C:35-7, which makes it a third-degree crime to distribute, to dispense, or to possess with intent to distribute, a controlled dangerous substance

while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property ...

Importantly, neither “school” nor “elementary” are explicitly defined by the terms of the statute. N.J.SA 2C:35-7. We turn then to consider whether the statute was intended to apply in the circumstances presented here.

III.

A.

In the absence of any legislative reference in N.J.S.A. 2C:35-7 to a specific definition of an elementary school, other sources indicate some common understanding of that term. A simple dictionary definition of “elementary school” describes “[t]he first six to eight years of formal education[, or] a school [usually] for the first six or eight grades.” Webster’s II New College Dictionary 364 (1st ed. 1995). A “kindergarten” is “a program or class for four- to six-year-old children that is as an introduction to regular school.” Id. at 607. Thus, the dictionary definitions lead to a conclusion that an elementary school generally includes the first six to eight grades and may include a kindergarten program as an introduction to formal education.² The parties point to various specialized educational provisions in State Department of Education regulations that make passing reference to elementary school or to kindergarten. See N.J.A.C. 6A:9-9.1(a) (concerning instructional certificates and specialized endorsements); N.J.A.C. 6A:9-2.1 (defining “nonpublic school” for purposes of professional licensure requirements). However, none definitively establish whether a kindergarten class, standing unconnected to other elementary grades, constitutes an “elementary school.”

Thus, it is unclear, judging the plain language alone, whether the Legislature intended that the provision of a kindergarten class in an otherwise private day care center was to be encompassed by N.J.S.A. 2C:35-7’s reference to an elementary school. Because there exists some ambiguity in the application of the statute’s words, resort may be had to extrinsic aids, such as legislative history and relevant canons of statutory construction, in our effort to divine with greater certainty the Legislature’s intent. We turn, therefore, to the available legislative history on the statute.

B.

The school-zone statute was adopted in connection with the Comprehensive Drug Reform Act of 1986, see L. 1987, c. 101, § 1, to combat “the infiltration of illicit drugs and drug trafficking activity into school safety zones.” Official Commentary to the Comprehensive Drug Reform Act (Laws 1987, Chapter 106), 9 Crim. Just. Q. 149, 157 (Fall 1987) [hereinafter Official Commentary]; see also State v. Lewis, 185 N.J. 363, 370, 886 A.2d 643 (2005) (explaining intent of Comprehensive Drug Reform Act of 1986 and Legislature’s desire to protect children from “drug culture”). Inspired by federal law,³ N.J.S.A 2C:35-7 was crafted to create a “drug ‘safety zone’ around schoolyards” to protect children from drug traffickers and to create drug-free environments conducive to educating students about “the dangers of drug use.” Official Commentary, supra, 9 Crim. Just. Q. at 157; see also State v. Gonzalez, 254 N.J.Super. 300, 305, 603 A.2d 516 (App.Div.1992) (“By enacting N.J.S.A 2C:35-7, the legislative design was ‘to afford special protection to children from the perils of drug trafficking [and] to ensure that all schools and [adjacent] areas ... are kept free from drug distribution activities.’ ” (citation omitted)). Because “children routinely congregate on school property and schoolyards” throughout the year, regardless of whether school is formally in session, the school-zone statute is intended to provide a “permanent, [twenty-four-hour] drug safety zone around schools[.]” Official Commentary, supra, 9 Crim. Just. Q. at 157. In furtherance of that goal, N.J.S.A. 2C:35-7 imposes a term of mandatory imprisonment and parole ineligibility, subject to N.J.S.A. 20:35-12, for defendants convicted of possession with intent to distribute or distribution of drugs within a designated school zone. Ibid.

The legislative history to the enactment of N.J.S.A. 20:35-7 provides a rich account of amendments that tailored the statute’s reach. The thrust of those changes was a narrowing of the scope of the original bill’s broad delineation of what constitutes a school zone. In its nascent form, the originally introduced bill would have required enhanced sentencing for drug offenses occurring “within 1,000 feet of the property surrounding any school in this State which provides instruction for children up to and including the age of 18 years.” S. 2449 [Official Copy Reprint], 202nd Leg. (N.J.1987) (emphasis added). The Senate Law, Public Safety and Defense Committee deleted that language and replaced it with the following limitation: “within 1,000 feet of the property of any public or nonpublic school or any center, facility, or other educational institution under the supervision of the Department of Education in this State which provides for the precollegiate instruction of children.” S. 2449 [Official Copy Reprint], 202nd Leg. (N.J.1987) (emphasis added). The Committee explained that its change “clarified] the types of schools to be covered by the bill’s provisions.” Senate Law, Public Safety & Defense Comm. Statement to S., No. 2449, 202nd Leg. (N.J. Aug. 13, 1987).

The General Assembly further amended the bill, once again narrowing the scope of a school zone to the following: “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.” Assemb. 3270 [Assembly Reprint], 202nd Leg. (N.J.1987) (emphasis added). That version was enacted into law on April 15, 1987. See L. 1987, c. 101, § 1. Importantly, the Official Commentary accompanying the adopted language explains the limitations imposed by the definition of school property:

The definition of school property is ... limited to elementary and secondary (junior high and high) schools. It does not matter for purposes of this section whether the school is public, private or parochial. The definition of school property, however, does not include nursery, preschool or day care centers; nor does it include colleges, junior colleges, universities or proprietary adult vocational schools.

[Official Commentary, supra, 9 Crim. Just. Q. at 157 (emphasis added).]

Thereafter, in 1988, the statute again was amended into the form that survives today. The zone of protection extends to “any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property.” L. 1988, c. 44, § 3 (emphasis added). The Senate Sponsor Statement to the 1988 amendments explained that the “original intent” of the law “was to create a permanent drug safety zone [around] schools, in recognition that children routinely congregate on school property and schoolyards before and after the normal school day, and during summer recess and other vacation periods.” Statement to [Second Reprint] S., No. 2026, 203rd Leg. (N.J.1988).

Thus, the progressively narrowed language demonstrates that the Legislature chose to limit school zones to areas around elementary or secondary schools, rather than any school serving children ages eighteen and under or providing pre-collegiate instruction, as would have been included within the zone under the earlier, broader language. During the legislative process, day care providers, nursery schools, and preschool programs clearly were removed from the bill’s reach. Therefore, the law should be interpreted and applied consistent with that apparent legislative purpose. The plain legislative intent to exclude day care providers, nursery schools, and preschool programs suggests that the statute was not meant to apply to a facility such as the Goddard School, a licensed day care provider.

Moreover, as a penal statute, we must strictly construe the language of N.J.S.A 20:35-7 where there is some uncertainty as to its application. See Gelman, supra, 195 N.J. at 482, 950 A.2d 879. And, we glean additional legislative direction to circumscribe the reference to “elementary school” in N.J.S.A 2C:35-7 to a eommonsense understanding of what constitutes such a school, rather than to stretch its definition to include day care providers. See N.J.S.A. 2C:l-2(c) (directing that provisions of New Jersey’s Criminal Code “shall be construed according to the fair import of their terms”). In gauging legislative intent both from the final language chosen for inclusion, and the limiting amendments that honed the described reach of a school zone under N.J.S.A 2C:35-7, we do not believe that when eliminating day care providers from the statute’s scope the Legislature intended to ensnare persons close to day care centers that happen to include a private kindergarten class. Nor do we think that the happenstance of having the word “school” or a like term in a facility’s title is illuminating in our analysis.⁴ The Goddard School is a licensed day care facility, which is the type of establishment that was excluded from the school-zone statute’s application.

In coming to a point of repose in our analysis of the instant statutory interpretation question, we seek nothing more than to effectuate the legislative will and, in doing so, to enforce a commonsensical application of the statute. Accordingly, for completeness, we note one final and pertinent insight gleaned from the statute’s legislative history. To the extent that the legislative history contains references to a desire to protect places where children congregate, the Legislature’s elimination of providers of nursery care, day care, and preschool programs from N.J.S.A. 2C:35-7’s reach reconciles that concern for us. The Legislature apparently did not consider nursery school students reasonably vulnerable to the “drug culture,” presumably because such youthful children are constantly supervised and do not congregate outside the watchful eyes of parents and teachers. Such children simply are not as free to gather, unsupervised, in or around such facilities as older children might around elementary and secondary schools. The Legislature thus rationally differentiated nursery care, day care, and preschool providers and made N.J.S.A. 2C:35-7 inapplicable to such entities. We respect that judgment for, typically, such private facilities do not serve as centers of public or civic activity or recreation for children in the same manner as may an elementary or secondary school and its property.

Our role is to discern and apply legislative intent to the extent that it can be ascertained. In this matter, we conclude that the Legislature’s intent in respect of this statute was evidenced by the systematic paring of the bill’s language to apply, ultimately, only to protected zones around schools comprised of generic levels of instruction (elementary or secondary) or around school property serving school purposes if leased or owned by an elementary or secondary school or school board.⁵

In conclusion, a fairly unique question of statutory interpretation and application arose in this matter: whether a private day care center, which includes as its highest level a small kindergarten class, constitutes an elementary school for purposes of the application of N.J.S.A. 20:35-7. In order to be consistent with the perceived legislative intent, to act in conformity with the duty to strictly construe penal statutes, and, when there is doubt, to err on the side of lenity, we hold that it does not. In so holding, we need not fashion an omnibus definition⁶ of “elementary school” for purposes of N.J.S.A. 2C:35-7, but rather simply hold that institutions such as Goddard do not trigger liability under the school-zone statute as drafted by the Legislature. Clearly, the essential character of Goddard is a day care center, offering predominantly nursery school and pre-school programs, with one private kindergarten class for its eldest enrollees. Following the guidance provided by the legislative history, we find that the inclusion of a small kindergarten class does not transform a day care center into an elementary school for the purposes of construing and applying this criminal statute. If our perception of what was intended by the Legislature is inconsistent with the statute’s original purpose, we have no doubt that legislative clarification will be provided for the benefit of the State, for the courts responsible for the consistent application of the criminal statutes, and for the public that needs clear and fair notice of the statute’s reach.

IV.

The judgment of the Appellate Division is affirmed.

1 Defendant was also charged with third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5(a)(l) and N.J.S.A. 2C:35-5(b)(3), for activities that predate the April 8, 2005 crime. His conviction and sentence on those offenses are not part of this appeal.

2 Despite the dissent’s statement that "elementaiy school” is "frequently" defined in a manner that conforms to the dissent’s interpretation, see post, Op. at 336-37, 15 A.3d at 827-28, it quotes from only one source for that proposition. Indeed, the other dictionaries referenced in the opinion themselves fail to include the term "kindergarten” within the definition of "elementary school." In any event, it seems clear that dictionary definitions do not settle the question presented in this appeal.

3 See 21 U.S.C.A. § 860 (2009) (encompassing former 21 U.S.C.A. § 845a).

4 Our ruling similarly would exclude the "Karate Academy,” an example cited during oral argument, from the statute’s application.

5 Another example cited during oral argument involved an asserted standalone kindergarten facility within an urbfm school district in the state. That kindergarten facility serving school purposes clearly would be entitled to application of the school-zone statute by virtue of the "owned by or leased to any ... school board” language in the statute. NJ.S.A. 2C:35-7.

6 We specifically do not consider, therefore, whether a private school comprised solely of kindergarten classes, see United States v. Echevaria, 995 F.2d 562, 564-65 (5th Cir.1993), would meet the statutory definition of an "elementary school.”