The People &c.,
Respondent,
v.
James Robbins,
Appellant.
2005 NY Int. 145
It is a class B felony to sell drugs within 1000 feet of a school. Because we agree with the courts below that this distance is to be measured in a straight line between the nearest school and the point of sale, we uphold defendant's conviction.
Penal Law § 220.44 (2) proscribes the third-degree
criminal sale of a controlled substance "when such sale takes
place upon school grounds." School grounds, in turn, means not
Defendant was charged with selling drugs to an undercover police officer at the northeast corner of 40th Street and Eighth Avenue in Manhattan. At trial, the People offered proof that the nearest school was the Holy Cross grade school, located on 43rd Street between Eighth and Ninth Avenues. It is undisputed that the sale took place within 1000 feet of the school when measured in a straight line between the sale and the school's boundary line, but that existing buildings made it impossible to walk in a straight line between those two points. It is further undisputed that the shortest actual distance that a pedestrian would have to travel in order to walk from the scene of the crime to the school using city streets and publicly accessible locations exceeded 1000 feet.
Defendant contends that the statute mandates that the
requisite distance be calculated by the "pedestrian method," and
that the evidence was therefore legally insufficient to support
his conviction. We are unpersuaded, and hold that the proper
The school-grounds law was enacted in order to create a drug-free buffer zone of protection -- "a corridor of safety for children coming to and from school" (Mem of State Exec Dept, 1986 McKinney's Session Laws of NY, at 2892). By defining school grounds to encompass both the school property itself and the entire area "within" 1000 feet of the property boundary line, the Legislature effectively extended the boundaries of school grounds outward in order to encompass all public areas within a 1000-foot radius of the school.
Indeed, the 1000-foot measurement was chosen because of the high number of narcotics-related arrests that had occurred within a two-block "radius" of elementary school grounds[2] ( id.; see also Governor's Mem approving L 1986, ch 280, 1986 McKinney's Session Laws of NY, at 3161 [because many, if not most, sales of drugs to children occur near but not inside school buildings, the bill defines school grounds to include "the area" within 1000 feet of the real property boundary line, providing a "zone of safety" for school children]). Thus, the intent of the statute was to circumscribe a fixed geographical area, without regard to whether that area might contain obstacles around which people might have to detour.
Other jurisdictions with similar statutes have construed their laws to require a straight-line measurement ( see e.g. Commonwealth v Spano, 414 Mass 178, 181, 605 NE2d 1241, 1244 [Mass 1993]; State v Georgetown, 1995 WL 866838, 1995 La App LEXIS 3878 [La Ct App, Dec. 15, 1995]; State v Wimbs, 74 Wash App 511 515, 874 P2d 193, 195 [Wash Ct App 1994]; State v Vigh, 871 P2d 1030, 1035 [Utah Ct App 1994]; Howard v State, 591 So 2d 1067, 1068 [Fla Dist Ct App 1991]; State v Ogar, 229 NJ Super 459 465, 551 A2d 1037, 1040-1041 [NJ App Div 1989]; see also Taylor Drug Stores, Inc. v Indiana Alcoholic Beverage Commn., 497 NE2d 932, 936 [Ind Ct App 1986] [proximity between a church and a premises seeking a permit to distribute alcoholic beverages should be measured along the shortest straight line connecting the church and the proposed premises, regardless of intervening obstacles]).
Similarly, the federal schoolyard law -- which
prohibits "distributing, possessing with intent to distribute, or
manufacturing a controlled substance in or on, or within one
thousand feet of, the real property comprising" a school (21 USC § 860) -- has been universally interpreted to contemplate the
straight-line method of measurement ( see e.g. United States v
Henderson, 320 F3d 92, 103 [1st Cir 2003], cert denied 539 US 936
[2003]; United States v Johnson, 46 F3d 1166, 1169-1170 [DC Cir
1995]; United States v Clavis, 956 F2d 1079, 1088 [11th Cir
1992], cert denied 504 US 990 [1992]; United States v Watson, 887
Defendant's contrary reading would introduce uncertainty and open the statute to a charge of vagueness. Plainly, guilt under the statute cannot depend on whether a particular building in a person's path to a school happens to be open to the public or locked at the time of a drug sale. At a minimum, "[r]equiring speculation about pedestrian routes would create uncertainty in a statute which was meant to establish clear lines of demarcation" ( Watson, 887 F2d at 980-981).
Further, if the pedestrian method of measurement were used, a drug dealer could take deliberate steps to evade the reach of the statute by putting up obstructions to render the footpath to a nearby school beyond the 1000-foot limit ( see Clavis, 956 F2d at 1088). But the intent of the legislation would be defeated "if dealers were allowed to escape prosecution by creating circuitous routes to their narcotic transactions" ( Watson, 887 F2d at 981). Thus, as the courts below properly held, the statutory distance is to be measured "as the crow flies."
Defendant's remaining contention is without merit.
Accordingly, the order of the Appellate Division should be affirmed.
Footnotes
1 An "area accessible to the public" means "sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants" ( id.).
2 One thousand feet is "the equivalent of two city blocks" ( id.).