protect defendant from incriminating interpretation if
nonincriminating interpretation is also reasonable.
Osborne v. Ohio, 495 U.S. 103 (1990), held the Ohio
Supreme Court’s narrowing construction of child
pornography statute in order to avoid overbreadth and its
application of that construction when evaluating
defendant’s overbreadth challenge complied with due
process; defendant possessed photographs of adolescent
boys in sexually explicit situations and had notice of
criminality of his conduct. Even if construed to obviate
overbreadth, applying statute to pending cases might be
barred by due process clause.
State v. Ogar, 229 N.J. Super. 459 (App. Div. 1989),
determined the provision prohibiting distribution and
possession of drugs within 1,000 feet of school property
or school bus was not unconstitutionally vague on its face,
and did not violate due process or equal protection as
applied. See also State v. Brown, 227 N.J. Super. 429 (Law
Div. 1988); State v. Morales, 224 N.J. Super. 72 (Law Div.
1987).
State v. Cameron, 100 N.J. 586 (1985), held a
zoning ordinance that excluded churches and other
places of worship from a township’s residential area was
void for vagueness and impermissibly violated the rights
of a minister who held services in his home on a temporary
basis. The degree of vagueness the Constitution tolerates
partly depends on the nature of the contested enactment.
Due process demanded utmost clarity when the activity
prohibited trenches on First Amendment rights and the
statute, as enforced, is penal and/or quasi-criminal.
See State v. Lee, 96 N.J. 156 (1984).State v. Wright, 96 N.J. 170 (1984), app. dism. 469
U.S. 1146 (1985). The Court rejected the claim that
N.J.S.A. 2C:39-5d, prohibiting possession of a weapon
other than certain firearms “under circumstances not
manifestly appropriate for such lawful uses as it may
have,” was unconstitutionally vague. The language was
clear enough that a reasonable person had a sufficient
degree of certainty as to the proscribed conduct. The
court also rejected an overbreadth challenge, holding that
this doctrine applied to First Amendment rights, while
the statute reached only the unlawful, knowing
possession of a weapon in circumstances not manifestly
appropriate for the object’s lawful use.
State v. Jones, 198 N.J. Super. 533 (App. Div. 1985),
relying on State v. Lee, supra, upheld against a vagueness
challenge the constitutionality of N.J.S.A. 2C:39-7, the
former felon possession statute. The statute was
sufficiently precise to apprise ordinary citizens of the
proscribed conduct and to preclude arbitrary and
discriminatory enforcement by law enforcement officers.
The overbreadth doctrine was inapplicable because the
statute did not implicate any First Amendment rights.
Jones, in effect, overruled State v. Williams, 194 N.J. 590
(Law Div. 1984), which held that the former-felon
possession statute was unconstitutionally overbroad,
insofar as it proscribed the mere possession, without
more, of a weapon.According to State v. Gately, 204 N.J. Super. 332
(App. Div. 1985), a reviewing court may save the
constitutionality of a statute by avoiding a construction
that renders a penal law vague and indefinite. Under this
principle, the court determined that a defendant could
not be convicted of refusing to submit to a breathalyzer
test, N.J.S.A. 39:4-50.2, absent proof that he actually
operated the motor vehicle.State v Sharkey, 204 N.J. Super. 192 (App. Div.
1985), upheld the constitutionality of the “look-alike
drug” statute, N.J.S.A. 24:21-19.1 et seq. The statute
was held to be readily understandable and phrased in a
plain and easily construed manner, and reasonably
related to a proper legislative purpose.In State In the Interest of H.D., 206 N.J. Super. 58
(App. Div. 1985), the “offensive language statute,”
N.J.S.A. 2C:33-2b, was found to be unconstitutionally
overbroad. The court held that this statute did not
significantly differ from the predecessor statute, N.J.S.A.
2A:170-29(1), which similarly was invalidated in State v.
Rosenfeld, 62 N.J. 594 (1973). The court concluded that
there is no statutory authority for prosecutions based
upon the public use of coarse or abusive language which
does not go beyond offending the sensibilities of a
listener.State v. Roth, 95 N.J. 334 (1984), concluded the
state’s right to appeal sentences under N.J.S.A. 2C:44-
1f(2) was not unconstitutionally vague, since the penal
code’s sentencing provisions set forth sufficiently clear
standards to foster more uniform sentences and did not
offend principles of fundamental fairness.According to State v. Morales, 224 N.J. Super. 72
(Law Div. 1987), the statute which made the
distribution or possession with intended distribution of
controlled dangerous substances within 1,000 feet of any
school property of school bus a crime was not overbroad
since the police power clearly encompasses the statutorily