Can Distance From Public Facility Be Inferred In Criminal Matter?
- May 26, 2013
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In drug distribution cases, penalties increase substantially if the matter takes place within 1,000 feet of a school zone or within 500 feet of a public park, public housing, museum or other public place. In the case of State v. Stevens, the NJ Supreme Court heard oral argument as to whether the jury could infer that a defendant arrested with 54 baggies of heroin on his person when arrested at Martin Luther King Drive and Stegman Street in Jersey City had been within 500 feet of a public park when the actual distance measured from the park to the location of arrest was 520 feet. Hudson County Superior Court Judge Fred Theemling, Jr. denied defendant’s motion for post-conviction relief based on failure of defendant’s trial counsel to determine and present evidence of the actual distance. Judge Theemling denied the motion without conducting a hearing based on his assessment that the jury could have inferred the defendant had been within 500 feet of the park prior to the sale of the controlled dangerous substance (CDS) based on other evidence offered at the trial. The NJ Appellate Division affirmed with Judges Christine Miniman and Jack Sabatino deciding proof of actual distance from the park was not required and circumstantial inferences by jurors are permitted. The day after the NJ Supreme Court heard oral argument on the case, it was dismissed as being improvidently granted. This is unlikely the last this issue will be heard by the courts. During oral argument, the notion was raised that similar hearings are being denied routinely and defendants are being deprived of their rights. State v. Lewis, 866 A.2d 643 (2005), is the precedential decision on the matter in NJ. In Lewis, the court considered whether, although the defendant accepted money within 500 feet of a park but the cocaine was in another location more than 500 feet from the park, there was possession within the park for the purpose of increasing the level of offense charged. The N.J. Appellate Division found that defendant exercised control over the drugs at all times while he was within 500 feet of the park and constructive possession within the park existed for purposes of increasing the offense charged from third degree to second degree possession with intent to distribute. It is always the prosecution’s burden to prove the elements of a crime charged. If you are charged with drug distribution or possession with intent to distribute you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession of CDS, theft, burglary, assault, domestic violence or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.