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Appeals Court Issues Decision Clarifying the Definition of “Accredited Preschool” Under School Zone Statute

school-bus-1431472-300x178The Appeals Court recently issued a decision – Commonwealth v. Cooper – clarifying what clarifies as an “accredited” preschool for the purposes of G. L. c. 94C, § 32J, the school zone statute. The defendant was convicted of drug distribution of a class E substance, in a school zone. In its decision, the Appeals Court ruled (1) that the evidence was sufficient to establish that the pills seized from the defendant at the time of his arrest were a class E substance (gabapentin); and (2) that the evidence was insufficient to establish “that the school furnishing the basis for [the defendant’s] school zone violation was an ‘accredited private preschool’ within the meaning of [G.L. c.94C,] §32J.”

The background was as follows. Undercover police officer “Munro told the defendant that she was looking to buy drugs” and the defendant told Munro that he had a prescription for a medication called gabapentin (a class E substance). Munro and the defendant made arrangements to meet for a sale at a restaurant. There, “Munro watched as the defendant removed yellow pills from a prescription bottle and placed them in a plastic bag. The defendant then handed the pills to Munro underneath the table at which they were seated, and Munro handed him the agreed-upon payment in exchange. Following the exchange, the defendant cautioned Munro to be careful when taking the pills, and not to consume more than five pills at once. He further explained that the pills were 300 milligram, quick-release capsules. During their conversation, Munro observed the defendant holding a prescription pill bottle, and saw the defendant’s name on the label.” In due course, “[t]he pills … were sent to the State police drug laboratory and examined by [a] chemist” who “determined that [they] were all the same color, appearance, and size, and [that] each bore the marking ‘G5027.’ Based on her examination … and after consulting reference materials maintained in the laboratory concerning the markings of prescription medications, [the chemist] concluded that [the capsules] contained gabapentin.” Regarding the school zone charge, there was evidence that the restaurant where the drug sale occurred was “located within 300 feet of the Bright Horizon Children’s Center,” a private preschool “licensed by the Department of Early Education and Care, as required for it to operate in Massachusetts.” On appeal from his conviction of possession of gabapentin in a school zone, the defendant argued (1) “that the Commonwealth’s failure to present evidence of a chemical analysis of the substance [in question] left the jury to speculate whether [it] was gabapentin”; and (2) that the fact that the Bright Horizon Children’s Center was licensed did not necessarily mean that it was “accredited” within the meaning of c.94C, §32J.

In its decision regarding the sufficiency of the evidence that the substance sold by the defendant was gabapentin, the Appeals Court noted that “‘[p]roof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence.’ Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). In cases involving pharmaceutical drugs, we have held that visual inspection supplemented by additional evidence probative of the identity of a drug may be sufficient to sustain the Commonwealth’s burden of proof.” Here, stated the Court, there was “substantial circumstantial evidence in addition to the distinctive markings on the pills the defendant sold to Munro…. [The officer] saw the defendant remove the pills from a prescription bottle with his name on it. In addition, on that occasion the defendant cautioned Munro to take no more than five pills at once, and advised her that the capsules were each 300 milligram, quick-release capsules.”

Regarding the school zone issue, the Appeals Court “reject[ed] the Commonwealth’s contention that evidence that the preschool in question was licensed sufficed to establish that it was ‘accredited’ within the meaning of [c.94C, §32J].” The Court stated, “[W]e must place some significance on the choice of the Legislature to use the term ‘accredited’ rather than ‘licensed’ in §32J, and on the fact that it did not use both as alternatives (as it has in other settings)…. On the record before us, the Commonwealth has developed no evidence suggesting that ‘accredited’ and ‘licensed’ are considered or treated as equivalents in any manner in the context of private preschools. In the absence of such evidence, and mindful of the principle of lenity applicable to the construction of criminal statutes, … we conclude that the evidence in the present case was insufficient to support the defendant’s conviction of a violation of … §32J.”

Charges under the school zone statute are serious – the statute carries mandatory minimum time that must be served on and after any conviction on the underlying drug offense. If you or a loved one is facing such charges, you will need an experienced attorney who is up to date on the law, able to identify any and all potential defenses you have, and present them to the court. Attorney Daniel Cappetta has successfully handled numerous drug cases and can help you get the best possible outcome in your case. Call him for a free consultation today.