dissenting.
In 1987, the Legislature enacted N.J.S.A. 2C:35-7 to “create a permanent, 24-hour drug safety zone” around “school property used for school purposes.” Official Commentary to the Comprehensive Drug Reform Act (Laws 1987, Chapter 106), reprinted in 9 Crim. Just. Q. 149, 157 (1987) (Commentary). To accomplish that salutary purpose, it made drug trafficking within 1,000 feet of school property a strict-liability offense punishable even when children are not present or when school is not in session. N.J.S.A. 2C:35-7. The “school property” involved in this case, however, is Count Basie Park in Red Bank, a public park owned by the Red Bank Board of Education (Board) and used by both the public and Red Bank Catholic High School (Red Bank Catholic) for sports activities. Because the park is not identified as “school property,” the critical issue raised by this appeal concerns the State’s obligation under the due-process clause to “ ‘give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’ ” Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1953)).
I
The facts of the case are undisputed. In October 1987, defendant, Charles Ivory, Jr., was riding his bicycle through Count Basie Park. The police stopped and searched him pursuant to a six-day-old search warrant, finding cocaine and marijuana in his coat pocket. After his arrest, defendant admitted that he had planned to share the drugs with friends at a party that evening.
*597Defendant was charged with two counts of possession of a controlled dangerous substance (CDS) contrary to N.J.S.A. 2C:35-10, two counts of possession of CDS with intent to distribute contrary to N.J.S.A. 2C:35-5, and two counts of possession of CDS with intent to distribute within 1,000 feet of school property contrary to N.J.S.A. 2C:35-7. He pleaded guilty to one of the school-property distribution charges, and the other charges were dismissed.
The trial court postponed sentencing to consider whether ownership of Count Basie Park by the Board was sufficient to render it “school property” within the intent of N.J.S.A. 2C:35-7. Concluding that the park constituted “school property,” the court sentenced defendant pursuant to the statute. The Appellate Division affirmed, adding that the park was “regularly used for public and parochial school athletic programs; the fact that the property * * * is also used for non-school purposes does not render it other than ‘school property used for school purposes’ within the meaning of N.J.S.A. 2C:35-7.”
We granted defendant’s request to supplement the record with the Lease Agreement between the Board and the Borough of Red Bank and the Participation and Contribution Agreement between the Borough of Red Bank and Red Bank Catholic. The evidence of “actual use” by Red Bank Catholic that the majority ascertains from the Participation and Contribution Agreement, ante at 590-591, demonstrates that Red Bank Catholic was authorized to use the field for school athletic purposes during specific hours designated in the agreement. However, the record reveals that residents of Red Bank were also authorized to use the field for non-school activities, such as Pop Warner football and Little League baseball. The majority nevertheless concludes that the public’s use of the field is irrelevant to the inquiry whether the property is used for “school purposes,” focusing on the legislative intent to create a permanent, twenty-four-hour school safety zone. Ante at 589. The majority confuses the statute’s clear mandate that distribution on school property is punishable regardless of whether *598children are present or school is in session with the threshold issue whether the park is indeed “school property used for school purposes.” N.J.S.A. 2C:35-7.
II
Although N.J.S.A. 2C:35-7 does not define the term “school property used for school purposes,” the legislative history indicates that the protected zone includes all school property, including playgrounds and athletic fields, and extends 1,000 feet in all directions from the outermost boundaries of that property. Commentary, supra, 9 Crim. Just. Q. at 157. As noted, to effectuate its purpose, the Legislature made distribution within 1,000 feet of school property a strict-liability offense, observing that
[i]t is thus incumbent upon drug traffickers to ascertain their proximity to schools and remove their illegal operations and activities from these specially protected areas, or assume the risk and stern consequences for their failure to do so. [Ibid.]
Defendant’s conduct in possessing a CDS with intent to distribute is already proscribed and punishable by statute. See N.J.S.A. 2C:35-5. The fact that this case concerns enhancement of criminal penalties does not alter the constitutional analysis. The protections of the due-process clause apply to all persons, not just those engaging in innocent conduct. Defendant’s illegal conduct does not excuse the State from its obligation to provide constitutionally-adequate notice to defendant and others that possession of drugs within 1,000 feet of the athletic field located within Count Basie Park was subject to penalties. See Grayned, v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227 (1972) (“[A]n enactment is void for vagueness if its prohibitions are not clearly defined. * * * [BJecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”); State v. Lashinsky, 81 N.J. 1, 18, 404 A.2d 1121 (1979) (“The *599* * * question for purposes of [the] vagueness argument is whether the defendant was reasonably apprised, as a matter of common intelligence, in light of ordinary human experience, that his particular conduct was unlawful.”). As the Supreme Court observed in Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926):
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties! ] is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. [Id. at 391, 46 S.Ct. at 127, 70 L.Ed. at 328.]
See also Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L.Ed. 888 (1939) (Court invalidated statute that penalized being “member of any gang” because term “gang” was unconstitutionally vague); State v. Cameron, 100 N.J. 586, 498 A.2d 1217 (1985) (interpretive problems posed by term “church” rendered statute in question vague as applied).
The record does not inform us, nor is it relevant, whether defendant himself was aware that he was within 1,000 feet of school property. See N.J.S.A. 2C:35-7. The constitutional prerequisite is that school use of the park be sufficiently apparent so as to be objectively ascertainable by the public. This record does not reveal the existence of signs or other notices indicating either that the area surrounding the athletic field was a “Drug-Free School Zone” or that the field was used by Red Bank Catholic for athletic events. As presented, the record indicates that defendant was apprehended while bicycling through a public park with athletic fields, without any other indication that the fields were “school property.”
The majority concludes that the provisions of the agreements between the Borough of Red Bank, the Board, and Red Bank Catholic authorizing school use of the athletic fields were sufficient to establish that a “reasonable person could know that the school property was used regularly, consistently and *600actually for school purposes,” ante at 591-592, and that in ambiguous cases, evidence “such as published schedules, newspaper accounts, photographs and the like,” ante at 592, is sufficient to establish that the property falls within the statutory prohibition. I strongly disagree. Other than the agreements authorizing school use, there is no evidence in this record of the extent to which the field was actually used for school purposes and no evidence of schedules, newspaper accounts, or photographs of school use. In my view, the scant evidence in this record utterly fails to satisfy the due-process requirement that “ ‘a person of ordinary intelligence [have] fair notice that his contemplated conduct is forbidden by the statute.’ ” Papachristou v. Jacksonville, supra, 405 U.S. at 162, 92 S.Ct. at 843, 31 L.Ed.2d at 115 (quoting United States v. Harriss, supra, 347 U.S. at 617, 74 S.Ct. at 812, 98 L.Ed. at 996). Even if there were such published reports memorializing a school’s use of the property, they would be insufficient to constitute the “fair notice” that the Constitution requires.
The issue is strikingly different from that presented in the cases holding, with respect to similar statutory provisions, that the due-process clause does not require proof of a defendant’s knowledge that the offending activity occurred within 1,000 feet of school property. See, e.g., United States v. Holland, 810 F.2d 1215, 1224 (D.C.Cir.) (“[I]t is reasonable for Congress to have expected drug traffickers to ascertain their proximity to schools and remove their operations from these areas or assume the risk for their failure to do so.”), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987); United States v. Falu, 776 F.2d 46, 50 (2d Cir.1985) (same reasoning); State v. Moore, 782 P.2d 497, 504 (Utah 1989) (same reasoning with respect to state legislature). In those cases, there was no ambiguity or uncertainty concerning the existence of the school or school property. Hence, courts understandably have concluded that the due-process clause is not offended by a lack of proof that defendant knew his unlawful conduct occurred within a prescribed distance from school property. In this case, *601because the actual use of the park as school property was not objectively ascertainable, fundamental principles of due process preclude the statute’s application to this defendant. Under the Constitution, not even the Legislature can turn a park into a school. At the very least, the State’s obligation is to provide adequate notice that the park is used as school property.
I cannot conclude from this record that it was objectively ascertainable that Count Basie Park was “school property used for school purposes” within the meaning of N.J.S.A. 2C:35-7. Hence, there was not an adequate factual basis for the trial court to have accepted defendant’s guilty plea. I would reverse defendant’s conviction and remand the case to the Law Division for trial.
For affirmance — Chief Justice WILENTZ and Justices GARIBALDI, CLIFFORD, HANDLER, POLLOCK and O’HERN — 6.
For reversal and remandment — Justice STEIN — 1.