STATE OF NEW JERSEY v. BARBARA MAHON

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6328-03T36328-03T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARBARA MAHON,

Defendant-Appellant.

___________________________________________________________

 

Argued October 19, 2005 - Decided January 12, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, MA-2003-45.

Michael J. Hahn argued the cause for appellant

(Lowenstein Sandler, attorneys; Mr. Hahn and

Samuel S. Cornish, on the brief).

Maura K. Tully argued the cause for respondent

(Peter C. Harvey, Attorney General, attorney;

Ms. Tully, of counsel and on the brief).

PER CURIAM

On February 23, 2003, defendant Barbara Mahon was charged with knowingly and purposely "wandering" with the intent to purchase heroin from an undercover police officer. In municipal court, defendant was convicted of violating N.J.S.A. 2C:33-2.1, entitled "[l]oitering for purpose of illegally using, possessing or selling controlled substance." The court imposed a $250 fine, $30 in court costs, a $50 Violent Crimes Compensation Board assessment, and a $75 Safe Neighborhood Service Fund assessment.

Defendant appealed to the Law Division arguing, as she does now, that her conviction was not supported by the evidence, and that N.J.S.A. 2C:33-2.1 is unconstitutional. On June 30, 2004, the Law Division denied defendant's motion to dismiss, finding N.J.S.A. 2C:33-2.1 to be constitutional "on its face and in its application." After reviewing the municipal court record de novo, the Law Division also found defendant guilty of violating N.J.S.A. 2C:33-2.1, and it imposed the same penalties as the municipal court.

Subsection (b) of the statute reads as follows:

A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog.

[N.J.S.A. 2C:33-2.1(b).]

Defendant argues that there was insufficient evidence in the record to establish that she wandered, remained or prowled in a public place with the purpose of purchasing a controlled dangerous substance (CDS) or its analog. We agree.

During the trial in municipal court, the State's only witness, the arresting police officer, Robert Candelaria, provided the following testimony on direct examination:

Q. And why did you arrest them?

A. We arrested them for wandering with the intent to purchase narcotics.

Q. Now, can you tell the [c]ourt, when was the first time you saw these individuals?

A. Yes. We had seen -- we were standing on the corner of Garside and Victoria.

THE COURT: Not we.

THE WITNESS: Okay. I was standing -- I'm sorry, Your Honor. I was standing on the corner of Garside and Victoria and I observed them pass in a vehicle. I believe it was like a pickup -- dark pickup truck. It had been [a] Toyota.

BY MS. ESTEVIES [Municipal Prosecutor]:

Q. And do you . . . recall who was in the vehicle? How many people?

A. Two.

Q. And . . . which people were they?

A. The two young ladies that are here.

Q. And where was the vehicle in relation to where you were?

A. The . . . vehicle actually circled, went around the block once, then it came back, and it parked like approximately twenty feet from where we were.

Q. Now, where you in your uniform, as you're wearing today?

A. No. We were in plain clothes.

Q. Okay. Now, you saw the vehicle, you said, go around the block once and then park approximately twenty feet from where you were. What did you see then?

A. Yes. Both females then exited the vehicle.

. . . .

Q. And, you said, you saw them exit from the vehicle. And what did they do next?

A. They walked by . . . us. They looked, but they kept on going. Then they walked up like west on . . . Victoria towards Mount Prospect.

Q. Now, you said, they looked. What did they look at?

A. They looked at us. We didn't look -- I guess we didn't look familiar to them. So, they walked up towards Mount Prospect. And then we lost sight of them. Apparently, they went inside the complex.

Q. Now, Officer, you mean -- "we," do you mean you?

A. I'm -- that's correct. Myself. I lost sight of them.

Q. Okay. And, at some point in time, did you see them again?

A. Yes, I did.

Q. And when was that?

A. They walked back down and then they finally approached. And they asked me, what -- you know, if I had anything.

In order to obtain a conviction, the State had to prove each of the five material elements of the offense beyond a reasonable doubt: (1) that defendant was in a public place; (2) that defendant wandered, remained, or prowled; (3) that defendant had a purpose to obtain a CDS or its analog; (4) that the obtaining of the CDS was unlawful (without a prescription); and (5) that defendant engaged in conduct that manifested a purpose to obtain a CDS or its analog. In this case, the evidence fails to demonstrate that defendant wandered, remained, or prowled in a public place with the purpose to unlawfully obtain drugs.

In State v. Kazanes, we noted that penal statutes must be strictly construed, and that the "wandering element of section b(1), as well as the other verbs, to remain, to prowl, require . . . some sense of hanging about or lingering in an attempt to make a drug connection." 318 N.J. Super. 421, 426 (App. Div. 1999). The evidence in this case, however, only shows that defendant purposefully traveled from one point to another. The State failed to prove that defendant was hanging around or loitering, or that she wandered, remained, or prowled in a public place to buy drugs. Thus, we conclude that the Law Division committed reversible error when it found defendant guilty of violating N.J.S.A. 2C:33-2.1.

 
Defendant's conviction is reversed and her sentence is vacated.

(continued)

(continued)

6

A-6328-03T3

January 12, 2006