owned and regulated, was immune from legal control on
state sovereignty grounds. According to the court,
control of dress could be regulated through municipal
ordinances since it was not the purpose of the penal code
to address indecent behavior. Addressing the issue of
State sovereignty, the court stated that while the superior
power of the State and its right to exercise that power on
its own property was not without limits, such limits
“speak to the reasonableness of the state action” and do
not preclude recognition of a legitimate local interest.
The court concluded, however, that absent wavier or
consent, a municipality may not lawfully exercise its
police power to regulate conduct on State-owned lands
within its boundaries. (See also, FOURTEENTH
AMENDMENT, this Digest).
State v. Meyer, 212 N.J. Super. 1 (Law Div. 1986).
The subject of obscenity is largely preempted by the Code
of Criminal Justice, N.J.S.A. 2C:1-5d; N.J.S.A. 2C:34-2,
although a specific grant of authority was given to the
municipalities which would allow control of the location
of the sale of obscene material through the use of zoning
ordinances. The court concluded that the challenged
municipal ordinance, which purported to control the
display of magazines containing nudity, was not part of
the zoning ordinance and did not control the location of
sale, but rather the manner of the sale and according, was
preempted by State legislation.
H. Constitutional Analysis and Statutory Construction
(See also, FOURTEENTH AMENDMENT, this
Digest)
Town Tobacconist v. Kimmelman, 94 N.J. 85 (1983).
When a statute’s constitutionality is doubtful because of
vagueness, the court has the authority to restore its
validity through appropriate statutory construction that
conforms with the intent of the legislature and that
advances the purposes of the legislation. Applying this
principle, the Court modified the definition of drug
paraphernalia in the state’s Drug Paraphernalia Act,
N.J.S.A. 24:21-46. The deleted language would have
required a factfinder to examine the defendant’s intent to
ascertain whether an item constituted drug parapherna-
lia. Reviewing the legislative history of the Model Drug
Paraphernalia Act, after which the New Jersey statute was
patterned, the Court determined that the factfinder
should focus on a defendant’s intent with respect to a
violation of the appropriate operative section of the act,
rather than a definitional term. See State v. Sharkey, 204
N.J. Super. 192, (App. Div. 1985) (upholds
constitutionality of the “look alike drug” statute, N.J.S.A.
24:21-19.1 et seq., as a justifiable regulatory law
reasonably related to a proper legislative purpose).State v. Harris, 218 N.J. Super. 251 (Law Div. 1987).
In determining whether stun guns were included within
the definition of weapons under N.J.S.A. 2C:39-1, the
trial court concluded that the statute did not give fair
notice that the guns were illegal. It dismissed the
indictment against defendants. Shortly after the arrest,
the Legislature amended N.J.S.A. 2C:39-1 to include
stun guns.Allen v. Bordentown City, 216 N.J. Super. 557 (Law
Div. 1987). A local curfew ordinance, which permitted
a police officer to determine whether a person was
loitering in the exercise of the officer’s “reasonable
judgement,” failed not only to provide no ascertainable
standards to measure the decision but provided no notice
of the acts forbidden. Thus, the statute was
unconstitutionally vague. In addition, the ordinance was
unconstitutionally overbroad. The ordinance contained
restrictions of fundamental personal liberties including
freedom of speech, assembly and religion and the right to
travel, which were unnecessary as the purpose of the
ordinance could have been achieved through more
narrowly drawn provisions.Abramowitz v. Kimmelman, 200 N.J. Super. 303
(Law Div. 1984), aff’d 203 N.J. Super. 118 (App. Div.
1985). There was a rational basis for an amendment to
the state’s Sunday closing law, N.J.S.A. 2A:171-5.8,
allowing only certain large cities to decide whether to
permit Sunday sales in counties with blue laws. In view
of the pressing economic problems facing the State’s
larger cities, the court held that it was reasonable for the
legislature to allow these communities to hold referenda
to decide whether to permit Sunday sales within their
borders.I. Court Rules and Statutory ConstructionState v. Vigilante, 194 N.J. Super. 560 (Law Div.
1983). A defendant may waive the right to summation.
R. 1:7-1(b) provides that following the close of evidence,
the parties may make closing statements in the reverse
order of the opening statements. The court construed the
plain language of the court rule to mean that summations
were permissive, not mandatory. The particular facts
showed that defendant knowingly and voluntarily
relinquished his right to a summation.