Argued October 16, 2014.
Complaint received and sworn to in the Marlborough Division of the District Court Department on January 12, 2012.
The case was reported by Robert G. Harbour, J.
S. Anders Smith for the defendant.
Jennifer Bernazzani ( Kevin J. Curtin, Assistant District Attorney, with her) for the Commonwealth.
Present: Berry, Hanlon, & Carhart, JJ.
[20 N.E.3d 622] Carhart, J.
This case was reported to us by a District Court judge after the judge denied a motion by the defendant Christopher Gopaul to dismiss one count of a fourteen-count criminal complaint against him. The count alleges that the defendant sold marijuana within one hundred feet of a " public park or playground" within the meaning of G. L. c. 94C, § 32J, as amended by St. 1993, c. 335. The issues presented are whether § 32J applies only to " public" playgrounds and whether that category excludes playgrounds located on private property, even if accessible to members of the public.
The following facts are agreed upon for purposes of
the reported questions:
" On October 28, 2011, the defendant is alleged to have sold marijuana to an undercover officer. The sale is alleged to have taken place within 100 feet of the outdoor playground at the Windsor Meadows Apartment Complex, a private apartment complex, located at 135 Broadmeadow Street,
Marlborough, Massachusetts. ... The playground has a fence that does not completely surround it and thus anyone can enter the playground without needing to open any gate or door. ... There are no signs [20 N.E.3d 623] regarding who may access the playground. Among other play structures, there is a slide, climbing structure, and swing set with four swings within the playground."
After the defendant was arrested and the complaint issued, the defendant moved to dismiss one count alleging violation of § 32J, on the basis that the playground at the Windsor Meadows Apartment Complex is not " public."  After a hearing, the judge denied the motion, ruling " that the law was clearly intended to protect children and the word 'playground' should not be so narrowly construed to only include playgrounds open to the general public but should and does include ...