paid in addition to other penalties assessed, N.J.S.A.
2C:35A-7a, and shall be in addition to and not in lieu of
forfeiture. N.J.S.A. 2C:35A-7b. See also N.J.S.A.
2C:35A-8.
II. CONSTITUTIONALITY
A. 2C:35-4
In State v. Kittrell, 145 N.J. 112 (1996), the Supreme
Court ruled that N.J.S.A. 2C:35-4, maintaining or
operating a controlled dangerous substance production
facility, was constitutional. The Court reasoned that to
establish “maintenance,” there must be some evidence of
continuity of the suspect’s use of the facility to
manufacture controlled dangerous substances. Where a
person is apprehended the first time he/she operates such
a facility, the State must present some evidence that the
defendant intended to operate the manufacturing facility
on more than one occasion. The Court also rejected
defendant’s claim that the statute was unconstitutional
because the same conduct could be prosecuted under
N.J.S.A. 2C:35-4 as a first degree offense or under
N.J.S.A. 2C:35-5 (manufacturing and distribution) as a
third degree offense.
B. 35-5(b)
In State v. Williams, 310 N.J. Super. 92 (App. Div.),
certif. denied, 156 N.J. 426 (1998), the Appellate
Division determined that N.J.S.A. 2C:35-5b(2) was not
facially vague because the statute’s plain meaning
included consideration of the weight of any adulterants
and dilutants added to the controlled dangerous
substance, and not just the weight of the drug itself.
C. 2C:35-7
State v. Brown, 227 N.J. Super. 429 (Law Div. 1988);
State v. Rodriguez, 225 N.J. Super. 466 (Law Div. 1988);
State v. Morales, 224 N.J. Super. 72 (Law Div. 1987).
In these cases, the trial courts addressed several
constitutional challenges lodged against N.J.S.A. 2C:35-
7, the statute which penalizes drug distribution within
1,000 feet of school property. The trial courts rejected
defendants’ vagueness challenge, noting that the
language was quite specific, that 1,000 feet is an easily
measured and readily determinable distance, and that
school property and a school bus are ascertainable entities
to the average layman.
Also, the Morales defendants claimed that the lack of
a mens rea requirement as to one’s proximity to the school
zone violated the due process clause because N.J.S.A.
2C:35-7 provides that “it shall be no defense that the
actor was unaware that the prohibited conduct took place
while the actor was on or within 1,000 feet of any school
property.” Adopting the reasoning in State v. Des Marets,
92 N.J. 62 (1983), the Morales court held that the
Legislature may remove the element of intent if it is
necessary to achieve a proper legislative goal. Given the
Legislature’s goal of protecting school children through
the creation of a 1,000 foot “drug-free zone,” the court
found the removal of an intent requirement to be a proper
exercise of legislative authority that did not violate
defendant’s due process rights. Also in State v. Rodriguez,
supra, the court held that N.J.S.A. 2C:35-7 was not
vulnerable to a substantive due process attack since the
statute was reasonably related to a legitimate legislative
purpose and was neither arbitrary nor discriminatory.
Since no fundamental rights are affected by the operation
of the statute, the court properly applied a rational basis
standard.Further, all three cases quickly disposed of
defendants’ overbreadth challenge. Noting that the
overbreadth doctrine is specifically directed to
governmental controls that encroach upon protected
rights, the Morales court specifically rejected defendants’
challenge, since “[t]he dealing in drugs, and the use of
drugs as controlled dangerous substances is illegal in New
Jersey.” State v. Morales, supra at 474.Further, defendants in each of the three cases claimed
that N.J.S.A. 2C:35-7 violated the Equal Protection
Clause in that it unconstitutionally affected their right to
live where they pleased. Here again the trial courts
rejected such a claim. Noting that there is no
constitutional right to distribute or possess with intent to
distribute controlled dangerous substances, the
Rodriguez court found that “[a]ny effect this statute has
on one’s right to freely choose a residence is most indirect
and most insubstantial.” State v. Rodriguez, at 225 N.J.
Super. 470. It found a rational basis existed for the
Legislature’s decision to enhance punishment for those
distributing narcotics within 1,000 feet of school
property while failing to provide enhanced punishment
for individuals who assault children within the protected
zone. The court reasoned that equal protection of the
laws is not denied because a penal statute might have
gone farther than it did or might have included classes of
persons who were excluded. The equal protection Clause