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NJ Drug School Zone Charges – NJSA 2C:35-7

09
Aug
2011

by in Drug Defense

Possession With Intent/Distribution in School Zone Lawyer

If you are facing drug charges anywhere in New Jersey, you need an attorney who understands the complicated area of law dealing with drug criminal liability and sentencing laws. New Jersey drug defense could be an entirely distinct area of law unto itself. The degree of exposure arising from a New Jersey drug arrest depends on many factors. These include the amount and type of drug, whether it was possessed with the intent to distribute it, and where this was done. If you are facing drug charges in any New Jersey Court, call to speak with a lawyer right away.

There is no denying that many areas of criminal law are racially and economically discriminatory. New Jersey’s law on possessing CDS with intent to distribute or distribution is one of these. While the authors of NJSA 2C:35-7 certainly did not mean to discriminate against hispanics or african-americans or low income residents in getting the law passed, the practical effect of the law is gravely unequal. In many urban areas, nearly the entire city falls under a 1,000 foot zone from some kind of school (the law is even gray on what constitutes a “school”).

In New Jersey, most residents of urban areas are facing the most challenging economic realities. Until recently, the criminal law in NJ called for harsh and mandatory prison and parole ineligibility for defendants convicted of NJSA 2C:35-7. However, in 2010, the New Jersey legislature amended the law, relaxing some of its harshest provisions.  If you have been charged with NJSA 2C:35-7, call now for a consultation with an experienced criminal lawyer.

NJSA 2C:35-7: Distribution on or within 1,000 feet of school property

a. Any person who violates subsection a. of NJSA 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 …., 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. …, a fine of up to $ 150,000 may also be imposed upon any conviction for a violation of this section.

b. (1) Notwithstanding the provisions of NJSA 2C:35-12 or subsection a. of this section, the court may waive or reduce the minimum term of parole ineligibility required under subsection a. of this section or place the defendant on probation pursuant to paragraph (2) of subsection b. …. 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;

(c) whether school was in session at the time of the offense; and

(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.

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. Nor shall it be a defense to a prosecution under 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 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.

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