A5474

An Act concerning the distribution of controlled dangerous substances and amending P.L.1987, c.101 and N.J.S.2C:35-8.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1987, c.101 (C.2C:35-7) is amended to read as follows:

1. a. [Any] (1) Except as otherwise provided in paragraph (2) of this subsection, a person who violates subsection a. of N.J.S.2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog 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 or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S.2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater, during which the defendant shall be ineligible for parole. In all other cases, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $150,000 may also be imposed upon any conviction for a violation of this section.

(2) A person who violates subsection a. of N.J.S.2C:35-5 by distributing, dispensing, or possessing with intent to distribute a controlled dangerous substance or controlled substance analog in edible form to a person under 17 years of age while in the following locations is guilty of a crime of the second degree and shall, except as provided in N.J.S.2C:35-12, be sentenced by the court to a term of imprisonment:

(a) a property used for school purposes which is owned by or leased to an elementary or secondary school or school board;

(b) a school bus;

(c) a property that is within 1,000 feet of property used for school purposes which is owned by or leased to an elementary or secondary school or school board or a school bus;

(d) a child care center licensed pursuant to the provisions of P.L.1983, c.492 (C.30:5B-1 et seq.);

(e) a youth camp licensed under P.L.1973, c.375 (C.26:12-1 et seq.);

(f) a school or community sponsored youth sports event, as defined by subsection f. of N.J.S.2C:12-1, during and for one hour immediately preceding and following the conduct of the event;

(g) a day camp or summer day camp; or

(h) a location in use for a school connected activity, during and for one hour immediately preceding and following the conduct of the activity.

b. (1) Notwithstanding the provisions of N.J.S.2C:35-12 or subsection a. of this section, the court may waive or reduce the minimum term of parole ineligibility required under paragraph (1) of subsection a. of this section or place the defendant on probation pursuant to paragraph (2) of subsection b. of N.J.S.2C:43-2. In making this determination, the court shall consider:

(a) the extent of the defendant's prior criminal record and the seriousness of the offenses for which the defendant has been convicted;

(b) the specific location of the present offense in relation to the school property, including distance from the school and the reasonable likelihood of exposing children to drug-related activities at that location;

(d) whether children were present at or in the immediate vicinity of the location when the offense took place.

(2) The court shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that:

(a) the offense took place 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 while on any school bus; or

(b) the defendant in the course of committing the offense used or threatened violence or was in possession of a firearm.

If the court at sentencing elects not to impose a minimum term of imprisonment and parole ineligibility pursuant to this subsection, imposes a term of parole ineligibility less than the minimum term prescribed in subsection a. of this section, or places the defendant on probation for a violation of subsection a. of this section, the sentence shall not become final for 10 days in order to permit the prosecution to appeal the court's finding and the sentence imposed. The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding whether to appeal a decision to waive or reduce the minimum term of parole ineligibility or place the defendant on probation.

Nothing in this subsection shall be construed to establish a basis for overcoming a presumption of imprisonment authorized or required by subsection d. of N.J.S.2C:44-1, or a basis for not imposing a term of imprisonment or term of parole ineligibility authorized or required to be imposed pursuant to subsection f. of N.J.S.2C:43-6 or upon conviction for a crime other than the offense set forth in this subsection.

c. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of N.J.S.2C:35-5 (manufacturing, distributing or dispensing) or N.J.S.2C:35-6 (employing a juvenile in a drug distribution scheme).

d. It shall be no defense to a prosecution for a violation of this section that the actor was unaware that the prohibited conduct took place while [on or within 1,000 feet of any school property] at a location specified under subsection a. of this section. Nor shall it be a defense to a prosecution under paragraph (1) of subsection a. of this section, or under any other provision of this title, that no juveniles were present on the school property at the time of the offense or that the school was not in session.

e. It is an affirmative defense to prosecution for a violation of paragraph (1) of subsection a. of this section that the prohibited conduct took place entirely within a private residence, that no person 17 years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct did not involve distributing, dispensing or possessing with the intent to distribute or dispense any controlled dangerous substance or controlled substance analog for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.

f. In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 1,000 feet of the school property. Any map approved pursuant to this section may be changed from time to time by the governing body of the municipality or county. The original of every map approved or revised pursuant to this section, or a true copy thereof, shall be filed with the clerk of the municipality or county, and shall be maintained as an official record of the municipality or county. Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense; nor shall this section be construed to preclude the use or admissibility of any map or diagram other than one which has been approved by the governing body of a municipality or county, provided that the map or diagram is otherwise admissible pursuant to the Rules of Evidence.

(cf: P.L.2009, c.192, s.1)

2. N.J.S.2C:35-8 is amended to read as follows:

2C:35-8. Distribution to Persons Under Age 18; Enhanced Punishment. Upon the application of the prosecuting attorney, any person being at least 18 years of age who has been convicted for violating subsection a. of N.J.S. 2C:35-5 or paragraph (1) of subsection a. of section 1 of P.L. 1987, c. 101 (C. 2C:35-7) by distributing a controlled dangerous substance or controlled substance analog to a pregnant female or a person 17 years of age or younger shall, except as provided in N.J.S. 2C:35-12, be subject to twice the term of imprisonment, fine and penalty, including twice the term of parole ineligibility, if any, authorized or required to be imposed by subsection b. of N.J.S. 2C:35-5 or section 1 of P.L. 1987, c. 101 (C. 2C:35-7) or any other provision of this title. In addition, the presumption of non-imprisonment for certain offenders set forth in subsection e. of N.J.S. 2C:44-1 shall not apply to any person subject to enhanced punishment pursuant to this section.

The court shall not impose more than one enhanced sentence pursuant to this section. If the defendant is convicted of more than one offense which is otherwise subject to enhanced punishment pursuant to this section, the court shall impose enhanced punishment based upon the most serious such offense for which the defendant was convicted, or, where applicable, the offense which mandates the imposition of the longest term of parole ineligibility. Notwithstanding the provisions of paragraph (2) of subsection a. of 2C:44-5, nothing herein shall prevent the court from also imposing an extended term pursuant to subsection f. of N.J.S. 2C:43-6. The court shall not impose an enhanced sentence pursuant to this section unless the prosecutor has established the ground therefor by a preponderance of the evidence at a hearing, which may occur at the time of sentencing. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and any other relevant information. It shall not be relevant to the imposition of enhanced punishment pursuant to this section that the defendant mistakenly believed that the recipient of the substance was 18 years of age or older, even if the mistaken belief was reasonable. Nor shall it be relevant to the imposition of enhanced punishment pursuant to this section that the defendant did not know that the recipient was pregnant.

(cf: P.L.1988, c.44, s.4)

3. This act shall take effect immediately.

STATEMENT

This bill upgrades distribution of a controlled dangerous substance in edible form to a person 17 years of age or younger to a crime of the second degree under certain circumstances. A crime of the second degree is punishable by a term of imprisonment of five to 10 years, a fine of up to $150,000, or both.

Under current law, a person who distributes, dispenses or possesses with the intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is: (1) owned by or leased to any elementary or secondary school or school board; (2) within 1,000 feet of such school property or a school bus; or (3) while on any school bus, is guilty of a crime of the third degree. A crime of the third degree is punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both. However, if the controlled dangerous substance or controlled dangerous substance analog was distributed to a person under 17 years of age while on school property, a court may sentence the perpetrator to twice the term of any imprisonment, fine or penalty upon application of the prosecutor.

Under the bill, a person who distributes, dispenses or possesses with the intent to distribute a controlled dangerous substance or controlled substance analog in edible form to a person under the age of 17 while in the following locations is guilty of a crime of the second degree:

- A property used for school purposes which is owned by or leased to an elementary or secondary school or school board;

- A school bus;

- A property that is within 1,000 feet of property used for school purposes which is owned by or leased to an elementary or secondary school or school board or a school bus;

- A child care center licensed pursuant to the “Child Care Center Licensing Act”;

- A youth camp licensed pursuant to the “New Jersey Youth Camp Safety Act”;

- A school or community sponsored youth sports event, during and for one hour immediately preceding and following the conduct of the event;

- A day camp or summer day camp; or

- A location in use for a school connected activity, during and for one hour immediately preceding and following the conduct of the activity.