STATE OF NEW JERSEY v. JASON SHELLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0868-07T40868-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON SHELLEY,

Defendant-Appellant.

________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey, Law

Division, Middlesex County, Indictment No. 05-07-0983.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Stephen W. Kirsch, Assistant Deputy Public

Defender, of counsel and on the brief).

Paula T. Dow, Acting Attorney General, attorney for

respondent (Leslie-Ann M. Justus, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Following denial of his motion to dismiss the school-zone charge of a two-count indictment, defendant Jason Shelley entered a conditional plea of guilty to third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 5b(3), and third-degree distribution of cocaine within 1,000 feet of a school, N.J.S.A. 2C:35-5 and 35-7. He was sentenced to two concurrent four-year terms with a three-year parole bar imposed on the school-zone offense. Defendant appeals, arguing that the Goddard School was not an "elementary school" within the meaning of N.J.S.A. 2C:35-7. We agree, and therefore vacate defendant's school-zone conviction.

For purposes here relevant, at his March 30, 2007 guilty plea hearing, defendant admitted selling a "bag" of cocaine to an undercover police officer on April 8, 2005, in the parking lot of the North Brunswick Pub, which is within 1,000 feet of the Goddard School for Early Childhood Development of North Brunswick (hereinafter, the Goddard School). This facility is a local franchise of a nationwide chain, Goddard Systems, Inc., of pre-schools and kindergarten. The website of the nationwide chain advertises: "[w]hether gently holding an infant, encouraging toddlers to share, or providing pre-schoolers with a variety of enriching activities, caring teachers support the healthy development of children from six weeks to six years." See The Goddard School for Early Childhood Development, http://www.goddardschool.com/programming.gspx (last visited June 8, 2009).

The Goddard School, a New Jersey licensed childcare center, has been in operation since November 1999, offering programs for children age six weeks to six years of age. In September 2001, Goddard started a "full day" kindergarten program which instructs ten students, and is taught by a degreed New Jersey State certified teacher.

In his motion to dismiss the school-zone count, defendant maintained that a nursery school/kindergarten is not an "elementary school" within the meaning of N.J.S.A. 2C:35-7. The motion judge disagreed, finding that although the Goddard School was primarily a facility for pre-school children, it did have a kindergarten and thus came within the definition of an "elementary" school under the Education Administrative Code regulations, N.J.A.C. 6A:32-2.1, and "non-public" elementary school, under N.J.A.C. 6A:9-2.1. We disagree. The inclusion of "kindergarten" within the Education Administrative Code's definition of an "elementary school" does not render the Goddard School an elementary school for purposes of the criminal school-zone statute.

N.J.S.A. 2C:35-7 provides, in pertinent part, that one is guilty of a third-degree crime if one distributes, or possesses with the intent to distribute, a controlled dangerous substance on or within 1,000 feet of "school property used for school purposes which is owned by or leased to any elementary or secondary school or school board[.]" The definition of "school property" is thus limited to elementary and secondary schools, regardless of whether the school is public, private, or parochial. N.J.S.A. 2C:35-7; Official Commentary to the Comprehensive Drug Reform Act (Laws 1987, Chapter 206), reprinted in 9 Crim. Just. Q., 149, 157 (Fall 1987) (hereinafter, Commentary). Although neither "elementary" nor "secondary" school is defined therein, it is clear that the school-zone statute "does not apply to pre-schools, day care centers, colleges, universities or proprietary adult vocational schools." State v. Tarver, 272 N.J. Super. 414, 422 (App. Div. 1994); see also Commentary, supra, 9 Crim. Just. Q. at 157. Here, it is undisputed that the Goddard School is a New Jersey licensed child care center and, as the motion judge found, "primarily a school for preschool kids."

The question thus is whether the existence of a kindergarten that services ten students transforms the otherwise exempt childcare center into a covered "elementary school" for the criminal prescriptive purposes of the school-zone statute. Because N.J.S.A. 2C:35-7 does not define "elementary" school, the State suggests, as an aid to construction, that we examine administrative regulations of New Jersey's Department of Education (DOE) promulgated pursuant to the Education Laws, N.J.S.A. 18A:1-1 to :76-4. See, e.g., State v. Ivory, 124 N.J. 582, 589 (1991). However, our review of the pertinent rules does not advance the State's position that the Goddard School falls within the scope of N.J.S.A. 2C:35-7 as an elementary school.

Current DOE administrative regulations define "elementary" as including "kindergarten, grades one through six and grades seven and eight without departmental instruction." N.J.A.C. 6A:32-2.1. Similarly, under the Administrative Code, a private or "nonpublic school" is defined as

an elementary or secondary school within the State, other than a public school, offering education for grades kindergarten through 12, or any combination thereof, wherein any child may legally fulfill compulsory school attendance requirements and which complies with the requirements of Title VI of the Civil Rights Act of 1964 (P.L. 88-352). For purposes of this chapter, preschools licensed by the Division of Youth and Family Services that are not under contract to provide services to Abbott districts shall be considered nonpublic schools.

[N.J.A.C. 6A:9-2.1 (emphasis supplied).]

Although kindergarten is considered a "grade," N.J.A.C. 6A:9-2.1; N.J.A.C. 6A:32-2.1; see also N.J.A.C. 6A:9-9.1, nowhere in the Administrative Code is it suggested that a facility offering only the "grade" of kindergarten is an "elementary school." To the contrary, N.J.A.C. 6A:9-2.1 requires that to be considered a "nonpublic school," the institution must offer education for grades "kindergarten through 12," or "any combination thereof[.]" (Emphasis added).

Moreover, under the Administrative Code, to qualify as a school, the institution must be one "wherein any child may legally fulfill compulsory school attendance requirements[.]" N.J.A.C. 6A:9-2.1. Because kindergarten attendance is not mandatory in New Jersey, N.J.S.A. 18A:38-25, -27, a child of traditional kindergarten age (five) cannot fulfill "compulsory school attendance or [] requirements" at the Goddard School. N.J.A.C. 6A:9-2.1. In other words, without any grade levels beyond kindergarten, the Goddard School is not an institution at which students fulfill their compulsory school-attendance requirements. Thus, while a facility that offers kindergarten in combination with higher grades qualifies as a "school" under our Education Administrative Code, it is the inclusion of those higher grades, at which attendance is compulsory, that causes the institution to be deemed a "school" for regulatory purposes and, by extension, an "elementary school" for school-zone purposes. Here, the mere addition of a ten-student kindergarten grade alone does not alter the intrinsic nature of the Goddard School as an institution servicing primarily pre-school children, nor convert this child care center, which does not offer its students the opportunity to meet compulsory attendance requirements, into an elementary school. As noted, N.J.S.A. 2C:35-7 clearly does not apply to pre-schools or day care centers.

Resort to administrative regulations only reinforces the notion that the Goddard School is exempted from the scope of N.J.S.A. 2C:35-7. Moreover, our narrow reading of the school-zone statute to exclude the Goddard School comports with the rule of lenity, which dictates that penal statutes must be strictly construed. State v. Gelman, 195 N.J. 475, 482-83 (2008); State v. Hodde, 181 N.J. 375, 379 (2004); State v. Valentin, 105 N.J. 14, 17 (1987). "The strict construction doctrine, and its corollary, the doctrine of lenity, 'mean[] that words are given their ordinary meaning and that any reasonable doubt . . . is decided in favor of anyone subjected to a criminal statute.'" State v. D.A., 191 N.J. 158, 164 (2007 (quoting 3 Sutherland Statutory Construction 59.3 (Singer 6th ed. 2001)). See also Gelman, supra, 195 N.J. at 482. In our view, according the terms their ordinary and generally accepted meaning, the addition of a ten-student kindergarten to a pre-school child care center does not render the institution an "elementary school." To the extent there exists any residual ambiguity in that otherwise clear terminology, we resolve the doubt in favor of those, such as defendant, subject to the criminal proscription of N.J.S.A. 2C:35-7. Nothing in the wording of the school-zone statute or its legislative history suggests to the contrary.

It is axiomatic that defendant may not be convicted of an offense "except on proof beyond reasonable doubt of each element of that offense. . . ." State v. Thomas, 132 N.J. 247, 253 (1993) (citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)). The elements of the school-zone statute are: 1) distribution of a controlled dangerous substance; and 2) while on or within 1,000 feet of school property used for elementary or secondary school purposes. N.J.S.A. 2C:35-7. Therefore, under N.J.S.A. 2C:35-7, it is necessary for the State to prove that the property at issue is school property. Ivory, supra, 124 N.J. at 587-88, 593. Here, the State has failed to prove that the Goddard School is school property used for elementary school purposes.

 
Accordingly, the judgment of conviction based on N.J.S.A. 2C:35-7 is vacated.

(continued)

(continued)

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A-0868-07T4

March 22, 2010