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Appeals Court Holds that Nursery/Kindergarden is not a “School Zone”


by in Criminal Defense

In this recent criminal appeal, the court held that the Goddard School, a Nursery/Kindergarden school, is not a “school” within the meaning of the State of New Jersey’s drug possession and distribution laws.

State v. Jason Shelley, unpublished opinion, App. Div. Docket No. A-0868-07T4 (March 22, 2010) – Conviction for distribution within a school zone reversed. “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…. [W]ithout 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.” (Stephen W. Kirsch, A.D.P.D.)






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