COMMONWEALTH vs. JOHN J. PAIGE.

JACOBS, J. At a bench trial in the District Court, the defendant was found guilty of (1) possession of marijuana with the intent to distribute same as a second or subsequent offense, G. L. c. 94C, § 32C (b), and (2) possession of drug paraphernalia with the intent to distribute same, G. L. c. 94C, § 32I. In addition, the judge determined that both these offenses had occurred within one thousand feet of a school zone, triggering the sentence enhancement provisions of c. 94C, § 32J. At the

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defendant's request, the judge stayed sentencing and reported the following question to this court: [Note 1]

"Whether underdeveloped and unused real property owned by an elementary school which is adjacent to the school's developed real property is 'real property comprising a public or private . . . elementary . . . school. . . .' under [G. L. c.] 94C, § 32J ?" [Note 2]

We answer the reported question: "Yes."

The locus of the predicate crimes was the defendant's home in Woburn, which is within one thousand feet of a boundary of an elementary school in the adjacent town of Winchester. The school site includes some twenty-four acres, consisting of an approximately eighteen acre portion containing the school building, a playground, and a soccer field, and the remaining contiguous approximately six acre undeveloped portion consisting entirely of wetland, woodland, and a steep cliff. The defendant argues that the part of the school property within one thousand feet of his residence neither is used nor usable for school purposes and, therefore, is not encompassed by the statute.

In relevant part, G. L. c. 94C, § 32J, as amended by St. 1998, c. 194, § 146, states:

"Any person who violates [§§ 32, 32A, 32B, 32C, 32D, 32E, 32F, or 32I], while in or on, or within one thousand feet of the real property comprising a public . . . elementary . . . school whether or not in session, . . . shall be punished. . . .

"Lack of knowledge of school boundaries shall not be a

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defense to any person who violates the provisions of this section."

The legislative purpose of § 32J is to create a one thousand foot drug-free safety zone around a school and to focus on clearly fixing the location of the proscribed activity. Commonwealth v. Roucoulet, 413 Mass. 647 , 651-652 & n. 7 (1992). "The Legislature has provided such clear direction in § 32J by specifically stating that lack of knowledge of school boundaries is not to be considered an issue in any prosecution under the statute." Commonwealth v. Alvarez, 413 Mass. 224 , 229 (1992). The "[drug] dealer [proceeds] at his peril with respect to the proximity of a school." Id. at 230. That the school boundaries are determinative in applying the statute is supported by Commonwealth v. Spano, 414 Mass. 178 (1993), where the court, at 181, indicated the "method of determining the extent of the school safety zone" is a measurement "in a straight line from the school's boundary line to the site of the illegal drug activity" (emphasis supplied). [Note 3] See Commonwealth v. Johnson, 53 Mass. App. Ct. 732 , 735-736 (2002) (not error to instruct jury that in order to convict under § 32J "they had to find that the transaction occurred within 1,000 feet of the boundaries comprising the school"). Compare State v. Peterson, 490 N.W.2d 53, 54-55 (Iowa 1992) (based on statute similar to § 32J referencing "real property comprising a public . . . elementary . . . school," and concluding that defendant violated the one thousand foot provision of the statute when arrested in parking lot of a lounge, 1,232 feet from the closest corner of school building but approximately 138 feet from nearest point of school land surrounding and contiguous to school buildings).

Accepted definitions of "comprise" are: "to include" and "contain." Webster's Third New International Dictionary p. 467

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(1993). [Note 4] No argument is made that the developed and used portion of the real property in issue has different or separate legal or jurisdictional status from the undeveloped and unused portion. Nor is there any claim that any portion is not contiguous, not included within, or not contained within the boundaries of the school property. [Note 5]

Section 32J is silent as to considerations such as the effect, if any, of the physical location of a school building or ancillary facilities within the real property. Moreover, the proscription of the statute applies to a school "whether or not in session," making ongoing educational or school related activity an irrelevant consideration. It also is not offensive to the purpose of § 32J that contiguous, undeveloped school land be treated as school

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"property" under the statute as it may, by its nature, attract the children who attend the school.

The defendant mistakenly relies on language in Commonwealth v. Klusman, 46 Mass. App. Ct. 919 , 920 (1999), quoted from State v. Baez, 238 N.J. Super. 93, 97 (1990), to argue that the property must be used by the school in order to fall within § 32J. The statute cited in State v. Baez penalizes the distribution of a controlled substance "while on any school property used for school purposes which is owned by any elementary or secondary school or school board . . ." (emphasis supplied). Id. at 96. By contrast, G. L. c. 94C, § 32J, makes neither use nor ownership [Note 6] an element of what constitutes the real property "comprising" a school. Compare Commonwealth v. Johnson, supra at 734-735. To make application of § 32J dependent on the particularized use of a specific land area at a given time would introduce an element that not only is vague in its warning and difficult to enforce, but also one not apparent in the words of the statute. "The language of the statute easily permits [our reading], and it is reason for accepting the reading that the defendant's contrary interpretation would create great practical difficulty in the enforcement of the law. We cannot suppose that a Legislature which has successively increased the penalties for trafficking would be content with the defendant's interpretation or its practical result." Commonwealth v. Tata, 28 Mass. App. Ct. 23 , 25 (1989).

Accordingly, when, as here, a boundary line circumscribes a public elementary school building together with adjacent school land areas that are contiguous, and not separated by intervening land under different jurisdiction, we conclude that § 32J is violated where the proscribed activity occurs within one thousand feet of such boundary line, and answer the reported

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question: "Yes." We remand the case to the District Court for sentencing.

So ordered.