SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued September 12, 2005 -- Decided December 8, 2005
WALLACE, J., writing for a majority of the Court.
On March 30, 2001, a Camden police officer conducting a surveillance in the area of Thorndyke Avenue and Marlton Pike saw defendant James Lewis converse with a man, walk to a nearby location, retrieve some items from a bag under a log, and exchange the items for money. The officer saw Lewis engage in a similar transaction with a second man. Lewis was arrested. At the stash location, the police found a storage bag containing twenty-three vials of marijuana and two sandwich bags, each bag containing twenty bags of crack cocaine. The area where the officer observed Lewis make his exchanges was within 500 feet of Eutaw Park. The location of the stash of marijuana and cocaine was not within 500 feet of the park.
Lewis was convicted of a number of drug offenses, the most serious of
which was second-degree distribution or possession of cocaine with intent to distribute while
within 500 feet of a public park. Lewis was sentenced to an extended
term of ten years with a four-year parole ineligibility term. The Appellate Division
affirmed Lewis’s conviction. This Court granted certification.
A person who possesses cocaine with intent to distribute while in, on or
within 500 feet of a public park is guilty of a crime of
the second degree. The question before the Court is whether a defendant may
be lawfully convicted under that statute if the defendant is located in the
park zone but the drugs are not.
HELD: A defendant may constructively possess a controlled dangerous substance that is located
outside the zone while he is in the zone; the judgment of conviction
is affirmed.
The applicable portion of N.J.S.A. 2C: 35-5a(1) makes it unlawful for any person
knowingly to distribute or to possess or have under his control with the
intent to distribute a controlled dangerous substance. The plain meaning of the park
zone penal provision, N.J.S.A. 2C: 35-7.1a is that anyone violating N.J.S.A 2C: 35-5
by distributing or possessing with intent to distribute a controlled dangerous substance while
in, on or within 500 feet of a public park is guilty of
a crime of the second degree. Thus, we must consider N.J.S.A. 2C:35-5 and
the law on possession. (pp. 7-9)
2. We reject Lewis’s contention that a conviction under N.J.S.A 2C: 35-7.1 only may
be sustained if the drugs are actually located within the park zone. The
provision’s declaration that a person possessing drugs with the intent to distribute while
in on, or within a park will be subject to greater punishment demonstrates
that the Legislature concentrated on the person’s location. The statute does not limit
the type of possession – actual or constructive – that qualifies, nor does it expressly
require that the drugs possessed by defendant be in, on or within 500
feet of the public area. Our jurisprudence recognizes that possession may be actual
or constructive. We find nothing in the language or history of the statute
that would lead us to conclude that the Legislature sought to limit the
statute to actual possession of the drugs in the park zone. A defendant
who conducts a portion of a scheme to distribute drugs while in, on,
or within 500 feet of a public park violates N.J.S.A. 2C:37-7.1, whether the
drugs are actually on the person or are constructively possessed and located outside
the park zone. (pp. 13-14)
3. A contrary result would influence drug dealers to distribute controlled dangerous substances within
a school or park zone, but to maintain their stash of drugs outside
the zone. The Legislature did not intend that type of conduct to escape
the harsher penalties for drug activity within park or school zones. (p. 14)
The result we reach does not preclude a defendant from alleging that drugs
recovered outside the zone lack a sufficient nexus to the zone to constitute
a violation. A defendant’s constructive possession of a drug must bear some direct
relationship to the drug-free zone. Here, the physical and temporal proximity of Lewis’s
cocaine and marijuana stash were sufficient for the jury to conclude that Lewis
constructively possessed the cocaine while in the park. (pp. 15-16)
The judgment of conviction is AFFIRMED.
JUSTICE LaVECCHIA, filing a DISSENTING opinion in which JUSTICE ALBIN joins, would reverse
the conviction; an examination of extrinsic sources does not resolve whether the Legislature
intended the prosecution of a person who stands within the park zone but
possesses drugs located outside the zone to fall within this penal provision; the
rule of lenity requires that the ambiguity be resolved in defendant’s favor
CHIEF JUSTICE PORITZ and J USTICES LONG, ZAZZALI and RIVERA-S OTO join in JUSTICE WALLACE’s
opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which JUSTICE ALBIN joins.
SUPREME COURT OF NEW JERSEY
A-
84 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES LEWIS,
Defendant-Appellant.
Argued September 12, 2005 – Decided December 8, 2005
On certification to the Superior Court, Appellate Division.
Alison S. Perrone, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars
Public Defender, attorney; Ms. Perrone and William P. Welaj, on the letter briefs).
Michael J. Williams, Deputy Attorney General, argued the cause for respondent (Peter C.
Harvey, Attorney General of New Jersey, attorney).
JUSTICE WALLACE, JR. delivered the opinion of the Court.
A person who possesses cocaine with intent to distribute while in, on, or
within 500 feet of a public park is guilty of a crime of
the second degree. N.J.S.A. 2C:35-7.1. The question before us is whether a defendant
may be lawfully convicted under that statute if he is located in the
park zone, but the drugs are not. We hold that a defendant may
constructively possess a controlled dangerous substance that is located outside the zone while
he is within the zone. We affirm the judgment of conviction.
The State presented evidence demonstrating that on the evening of March 30, 2001, Camden Police Officer Edward Pinero was conducting surveillance in the area of Thorndyke Avenue and Marlton Pike, as a result of complaints about drug activity. Pinero was assigned to observe the area with binoculars while other officers waited nearby to assist him. At approximately 6:45 p.m., Pinero noticed defendant, who walked from Thorndyke Avenue and stood in a well-lit area. Subsequently, a man stopped his vehicle on the street, exited, and approached defendant. After conversing with the man, defendant walked to a nearby location, retrieved a bag from under a log, removed some items from the bag, and returned to the man. Pinero noticed that the man gave defendant money in exchange for items from the bag. After the man drove away, Pinero radioed his backup to detain the suspected buyer, but the police were unsuccessful. Pinero then observed a second male approach defendant. Defendant again walked to the nearby location, retrieved some items from the same bag, and returned to the waiting customer. After observing the second transaction, Pinero instructed the backup officers to detain defendant and the buyer. As the officers approached and identified themselves, defendant attempted to walk away. While he was walking away, defendant placed his arm around a woman passing by him, and dropped something to the ground. Police Officer Alicea placed defendant under arrest, walked to the area where defendant dropped something, and found three vials of suspected marijuana.
Pinero subsequently investigated the suspected stash location and found a storage bag containing twenty-three vials of marijuana and two clear sandwich bags, each containing twenty heat-sealed bags of suspected crack cocaine. The vials of marijuana found at the stash were identical to the three vials defendant had discarded. The area where Pinero observed defendant exchange a substance for money from the suspected buyer was within 500 feet of Eutaw Park. However, the location of the stash of marijuana and cocaine was not within 500 feet of the park.
At trial, Investigator Pete Slusser testified as an expert in narcotics packaging and distribution. He explained that the area of Marlton Pike and Thorndyke is a drug area. Based on hypothetical questions, he opined that someone conducting sales from a stash location as described in the testimony possessed those drugs for distribution. Additionally, he stated that the possession of forty bags of cocaine and twenty-six vials of marijuana was consistent with an intent to distribute rather than with personal consumption.
At the conclusion of the State’s case, defendant moved for an acquittal of second-degree possession with intent to distribute cocaine in a park zone because the evidence established that the cocaine stash was not within 500 feet of a public park. The trial court denied the motion because there was sufficient evidence for the jury to conclude that defendant, who was within 500 feet of Eutaw Park, controlled the drugs located outside of the park zone.
The jury convicted defendant of fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12) (count one); third-degree distribution or possession of marijuana with intent to distribute while within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (count five); and second-degree distribution or possession of cocaine with intent to distribute while within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count seven).
At sentencing, the trial court granted the State’s motion to impose an extended sentence because defendant was a persistent offender. With the prosecutor’s consent, the court merged the convictions into the second-degree park zone offense and imposed an extended term of ten years with a four-year period of parole ineligibility.
Defendant raised four arguments on appeal. The Appellate Division found those arguments to be without merit and affirmed. In addressing defendant’s claim that the park zone statute requires proof of actual possession of the drugs within the zone, the panel held that both constructive and actual possession were adequate for purposes of N.J.S.A. 2C:35-7.1. The panel concluded that the jury’s finding that defendant constructively possessed the cocaine located outside of the zone while he was within the zone was sufficient to find him guilty of the park zone offense.
We granted defendant’s petition for certification, limited to the issue of “whether defendant’s conviction under N.J.S.A. 2C:35-7.1a can be based on a constructive possession of drugs located outside the public park in which the drug transaction took place.” 182 N.J. 428 (2005). We conclude that it can and affirm.
Defendant contends that under the express language of N.J.S.A. 2C:35-7.1, he cannot be guilty of possession with intent to distribute cocaine within a park zone because the cocaine was not located within that zone. He argues that our case law supports his position that the determinative factor for culpability is the location of the drugs, and not the location of the person. He urges that the Legislative intent in enacting the school zone statute, N.J.S.A. 2C:35-7, and the park zone statute, N.J.S.A. 2C:35-7.1, was to create drug-free zones around certain areas, and, therefore, the Legislature intended the statutes to apply only when drugs are physically located within those zones.
The State responds that the clear language of the statute demonstrates that the Legislature intended to impose added criminal responsibility on a defendant who is located in the zone and distributes or possesses cocaine with intent to distribute. Simply put, the State contends that the statute focuses on the location of defendant, not of the drugs. The State notes that the statute neither limits the type of possession -- actual or constructive -- that qualifies, nor does it require that the drugs be physically in the park zone. Moreover, the State argues that although our Supreme Court has explained that a drug’s location is relevant, it has never held that the location of the defendant is less relevant. Further, the State recognizes that a defendant’s drug possession must bear some direct relationship to the zone, and not be so divorced of any nexus such that a person cannot be fairly said to have violated the statute.
Both defendant and the State contend that the legislative intent behind N.J.S.A. 2C:35-7.1 supports their respective positions. N.J.S.A. 2C:35-7.1a provides in pertinent part:
Any person who violates subsection a. of N.J.S.2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree, except that it is a crime of the third degree if the violation involved less than one ounce of marijuana.
[(emphasis added).]
The applicable portion of N.J.S.A. 2C:35-5a(1) makes it unlawful for any person knowingly
or purposely “[t]o manufacture, distribute or dispense, or to possess or have under
his control with intent to manufacture, distribute or dispense, a controlled dangerous substance
or controlled substance analog.”
Our goal in construing a statute “is to discern and effectuate the Legislature’s
intent.” State v. Brannon,
178 N.J. 500, 505 (2004). We start by considering
the plain language of the statute. State v. Ivory,
124 N.J. 582, 585
(1991). If the language is clear, we interpret the statute consistent with its
plain meaning. Ibid. If the meaning of the text is ambiguous, we construe
a criminal statute in favor of the defendant. State v. Reiner,
180 N.J. 307, 311 (2004). Nevertheless, in interpreting a criminal statute, “whatever be the rule
of construction, it is subordinate to the goal of effectuating the legislative plan
as it may be gathered from the enactment ‘when read in the full
light of its history, purpose and context.’” State v. Gill,
47 N.J. 441,
444 (1966) (quoting Lloyd v. Vermeulen,
22 N.J. 200, 204 (1956)). Further, a
court should strive to avoid statutory interpretations that “lead to absurd or unreasonable
results.” Ibid.
The Code of Criminal Justice specifically declares that “when the language [of a
provision] is susceptible of differing construction it shall be interpreted to further the
general purposes stated in this section and the special purposes of the particular
provision involved.” N.J.S.A. 2C:1-2c; See also State v. Hill,
155 N.J. 270, 275
n.2 (1998); State v. Bridges,
131 N.J. 402, 406-07 (1993); Ivory, supra, 124
N.J. at 586 (1990); State v. Maguire,
84 N.J. 508, 514 (1980).
In enacting the Comprehensive Drug Reform Act of 1986, the Legislature declared its
“intention . . . to provide for the strict punishment, deterrence and incapacitation
of the most culpable and dangerous drug offenders” stating “[i]t is also the
policy of this State to afford special protection to children from the perils
of drug trafficking . . . .” N.J.S.A. 2C:35-1.1c; Bridges, supra, 131 N.J.
at 407; see Official Commentary to the Comprehensive Drug Reform Act (Laws 1987,
Chapter 106),
9 Crim. Just. Q. 149, 157 (Fall 1987) (“It is thus
incumbent upon drug traffickers to ascertain their proximity to schools [and public parks]
and remove their illegal operations and activities from these specially protected areas .
. . .”). The purpose of N.J.S.A. 2C:37-7 (school zone) and N.J.S.A. 2C:35-7.1a
(public park zone) is essentially the same: to protect those, predominantly children, in
and around schools and public parks from exposure to the drug culture and
perils of drug trafficking. In furtherance of that purpose, the Legislature mandated severe
punishment for those who possess or distribute drugs in the safety zones established
by those statutes.
The plain meaning of N.J.S.A. 2C:35-7.1a is that anyone violating N.J.S.A. 2C:35-5 by
distributing or “possessing with intent to distribute a controlled dangerous substance or controlled
substance analog while in, on or within 500 feet” of a public park
is guilty of a crime of the second degree. N.J.S.A. 2C:35-7.1a. Thus, we
must consider N.J.S.A. 2C:35-5 and the law on possession.
N.J.S.A. 2C:35-5 makes it unlawful “[t]o manufacture, distribute or dispense, or to possess
or have under his control with intent to manufacture, distribute or dispense, a
controlled dangerous substance or controlled substance analog.” The Code declares that “[p]ossession is
an act, within the meaning of this section, if the possessor knowingly procured
or received the thing possessed or was aware of his control thereof for
a sufficient period to have been able to terminate his possession.” N.J.S.A. 2C:2-1c.
Recently, we stated that
an object may be actually or constructively possessed. State v. Schmidt,
110 N.J. 258, 270,
540 A.2d 1256, 1262 (1988); State v. Stewart,
96 N.J. 596,
603,
477 A.2d 300, 303-04 (1984). A person actually possesses an object when
he has physical or manual control of it. State v. Brown,
80 N.J. 587, 597,
404 A.2d 1111, 1116 (1979). A person constructively possesses an object
when, although he lacks “physical or manual control,” the circumstances permit a reasonable
inference that he has knowledge of its presence, and intends and has the
capacity to exercise physical control or dominion over it during a span of
time. Schmidt, supra, 110 N.J. at 270, 540 A.
2d at 1262.
[State v. Spivey,
179 N.J. 229, 236-37 (2004).]
Although we have not addressed a case in which a defendant evidences intent
to distribute cocaine within a restricted zone and the drugs are located outside
of the zone, in related situations we have not hesitated to follow the
intent of the statute. In Ivory, supra, the defendant was riding his bicycle
through a school zone when a police officer arrested him pursuant to an
arrest warrant. 124 N.J. at 584. A search of defendant revealed 16.98 grams
of cocaine and an uncertain amount of marijuana. Ibid. The defendant was charged
with multiple drug offenses, including possession with intent to distribute in a school
zone. Ibid. He pled guilty to the school zone violation and received a
four-year sentence with a one-year parole bar. Id. at 585. The defendant appealed,
arguing that the “statute’s scope is limited to those intending to distribute drugs
within 1,000 feet of school property.” Ibid. The Appellate Division rejected that argument
and we granted certification. Ibid. We held that “the criminal conduct (possession with
intent to distribute, contrary to N.J.S.A. 2C:35-5a) occurred while on or within 1,000
feet of school property,” and that the defendant “need not be shown to
have any specific intent to distribute the drugs at any given location.” Id.
at 593-94. In reaching that conclusion, we explained that
the Legislature intended to create drug-free zones of safety where children could be,
learn and play free of the potential infection of drugs. One contaminating these
safety zones is liable, regardless of whether he or she intended to infect
those here or others elsewhere. Such a stance is legitimate and warranted in
the effort to prevent primary and secondary school students in this state from
using drugs. The statute presents a rational and reasonable approach by the Legislature
to reduce drugs around schools.
[Id. at 594-95.]
In Spivey, supra, we addressed the issue of constructive possession in the context
of N.J.S.A. 2C:39-4.1a, which penalizes the possession of a firearm while in the
course of committing certain drug offenses, such as possession with intent to distribute
a controlled dangerous substance within 500 feet of a park zone. 179 N.J.
at 239. The defendant was arrested outside his apartment building while the police
searched his apartment and found a sizeable stash of drugs and a loaded
weapon in the kitchen. Id. at 232. The defendant’s apartment was located in
a park zone, and the State charged him with possession of a firearm
while in the course of possessing a controlled dangerous substance with intent to
distribute within 500 feet of a public park, a second-degree offense. Ibid. The
defendant was convicted of that offense along with other related charges and appealed.
Id. at 234-35. The Appellate Division affirmed his convictions and we granted certification.
Id. at 235.
Before us, the defendant argued that the State failed to prove he “actually
possessed the weapon or constructively possessed it in close physical proximity to his
person at the time he committed the predicate drug offense.” Ibid. After stating
that a person may have actual or physical possession of an object, we
found sufficient evidence for the jury to find that the defendant constructively possessed
the firearm and drugs. Id. at 237. Next, we considered whether the evidence
was adequate to support a jury finding that the defendant possessed the firearm
“while in the course of committing” the drug offense in light of the
defendant’s arrest outside his apartment. Ibid. We concluded it was, declaring that
[t]he statutory language does not suggest that the weapon must be in close
proximity to defendant to constitute a violation of N.J.S.A. 2C:39-4.1a. Had the statute
read “armed with a firearm while in the course of committing” a specified
crime, the outcome might be different. . . . The language ‘while in
the course of committing’ does suggest, however, a temporal and spatial link between
the possession of the firearm and the drugs that defendant intended to distribute.
. . . The closer in proximity a firearm is to drugs, the
stronger and more natural the inference that the two are related to a
common purpose.
[Id. at 239-40.]
In the present matter, we reject defendant’s contention that a conviction under N.J.S.A.
2C:35-7.1 only may be sustained if the drugs are actually located within the
park zone. We do not read the statute to be so limited. The
Legislature did not restrict the reach of the statute to those who physically
possess the drugs within the zone. The plain language of N.J.S.A. 3C:35-7.1 instructs
that any person who violates N.J.S.A. 2C:35-5 “while in, on or within 500
feet” of a public park is guilty of a second-degree crime. That is,
the declaration that a person possessing drugs with the intent to distribute “while
in, on or within” a park zone will be subject to greater punishment
demonstrates that the Legislature concentrated on the person’s location.
Moreover, the statute does not limit the type of possession -- actual or
constructive -- that qualifies, nor does it expressly require that the drugs possessed
by defendant be in, on, or within 500 feet of the public area.
Our jurisprudence recognizes that possession may be actual or constructive. Spivey, supra, 179
N.J. at 239. We find nothing in the plain language or the history
of the statute that would lead us to conclude that the Legislature sought
to limit the statute to actual possession of the drugs in the park
zone. We conclude that a defendant who conducts a portion of a scheme
to distribute drugs while in, on, or within 500 feet of a public
park violates N.J.S.A. 2C:37-7.1, whether the drugs are actually possessed on the person
or the drugs are constructively possessed and located outside the park zone.
In our view, a contrary result would influence drug dealers to distribute controlled
dangerous substances within a school or park zone, but to maintain their stash
of drugs outside the zone. Surely, the Legislature did not intend that type
of conduct to escape the harsher penalties for drug activity within a park
zone or a school zone.
The State concedes, and we agree, that the result we reach does not
preclude a defendant from alleging that the drugs recovered outside the park zone
lacked a sufficient nexus to the park zone to constitute a violation pursuant
to N.J.S.A. 2C:35-7.1a. There must be some connection between the drugs and the
zone to permit a reasonable inference that defendant constructively possessed the drugs with
intent to distribute them within the drug-free zone. Such a nexus is not
limited by the location of the drugs, although the inference to be drawn
may be stronger the closer the drugs are to the zone. See Spivey,
supra, 179 N.J. at 237-40. In any event, a defendant’s constructive possession of
a drug must bear some direct relationship to the drug-free zone and not
be so divorced of any nexus that he or she cannot be fairly
said to have violated N.J.S.A. 2C:35-7.1.
For example, a person could constructively possess drugs in his apartment one mile
away. However, if he goes to a public park or a school zone
to exercise, there is not an obvious connection between the constructive possession of
the drugs in his apartment and his presence within the zone. On the
other hand, the nexus exists if the defendant conspires or attempts to distribute
or sell drugs within the zone, even if the drugs are not within
the zone and delivery is intended outside the zone.
Here, there was evidence that defendant, on two occasions, met with a purchaser
in the park zone, walked to his stash location outside the zone, and
returned to complete the transaction. The kind of drug sold in the first
transaction was unknown, while in the second transaction the drug was marijuana. The
evidence that the nearby stash contained both marijuana and cocaine supported the reasonable
inference that, depending on the drug requested by the buyer, defendant intended to
distribute cocaine and marijuana within the park zone.
Further, the State presented the expert testimony of Investigator Slusser that someone conducting
sales from a stash of the quantity in this matter possessed those drugs
for distribution. The physical and temporal proximity of defendant’s cocaine and marijuana stash
were sufficient for the jury to conclude that defendant constructively possessed the cocaine
while in the park zone. Therefore, we conclude that defendant, who sold drugs
in a park zone from a stash located outside that zone, violated N.J.S.A.
2C:37-7.1a.
We affirm the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, and RIVERA-SOTO join in JUSTICE WALLACE’s
opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which JUSTICE ALBIN joins.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES LEWIS,
Defendant-Appellant.
JUSTICE LaVECCHIA, dissenting.
Defendant was charged with possession with intent to distribute a controlled dangerous substance
“in, on or within 500 feet of a public park.” The majority has
judicially expanded the five-hundred-foot public park zone to include the area where defendant’s
stash of drugs was found in order to justify defendant’s conviction. Because I
cannot accept the strained interpretation of N.J.S.A. 2C:35-7.1(a) that allows the majority to
uphold defendant’s park zone conviction, I must dissent.
I agree with the majority that there was sufficient evidence to support defendant’s
conviction for his distribution of marijuana, for the amount of marijuana that he
possessed on his person when he was within five hundred feet of a
public park, and for the amount of marijuana and cocaine he constructively possessed,
stored in his stash. For his actions within a public park zone and
for the amounts of marijuana and cocaine found on his person and that
he constructively possessed, defendant was convicted of fourth-degree possession of marijuana with intent
to distribute, contrary to N.J.S.A. 2C:35-5a(1) and b(12) (count one); third-degree distribution or
possession of marijuana with intent to distribute while within 500 feet of a
public park, contrary to N.J.S.A. 2C:35-10a(1) (count three); third-degree possession of cocaine, contrary
to N.J.S.A. 2C:35-10a(1) (count four); and third-degree possession of cocaine with intent to
distribute, contrary to N.J.S.A. 2C:35-51(1) and b(3) (count five). The majority and I
part company in this appeal because the Court is willing to uphold an
additional conviction for second-degree distribution or possession of cocaine with intent to distribute
while within five hundred feet of a public park zone, contrary to N.J.S.A.
2C:35-7.1 (count seven), when the cocaine involved in that second-degree conviction was not
“in, on or within 500 feet of [a public park].” N.J.S.A. 2C:35-7.1 (emphasis
added).
The statute calls for possession of the contraband to be within the five-hundred-foot
zone protecting a public park. Ibid. The stash of cocaine on which rests
defendant’s second-degree park zone conviction was located outside of the five- hundred-foot zone.
Nevertheless, the majority upholds that conviction based on a novel application of constructive
possession that relocates the constructively possessed cocaine to where defendant is situated. The
majority cannot cite to a single case in this State where a thing,
constructively possessed, is deemed to be possessed at a location other than where
the thing itself is located. At oral argument, the State conceded that it
could not cite to a single case to support that proposition either.
The novel spin that the majority gives to the principle of constructive possession
is not supported by State v. Spivey,
179 N.J. 229 (2004). In Spivey,
the defendant’s apartment was located less than five hundred feet from a public
park. Id. at 233. In searching defendant’s apartment pursuant to a warrant that
authorized a search of both defendant’s person and home, the police found a
sizable amount of drugs, drug paraphernalia, and a loaded firearm. Ibid. The firearm,
and some marijuana with drug paraphernalia, were found in different locations within the
kitchen. Ibid. The issue before the Court was whether there was sufficient evidence
to convict the defendant under N.J.S.A. 2C:39-4.1a., for possessing a firearm “while in
the course of” possessing with intent to distribute drugs within five hundred feet
of a public park. Id. at 232. Although the defendant was arrested while
standing on the sidewalk outside his apartment, the Court’s analysis did not focus
on where the defendant was located; rather, our analysis and holding focused on
the relationship between the location of the drugs and the firearm, in the
context of determining the “while in the course of” element of 2C:39-4.1a. We
upheld Spivey’s conviction based on the premise that he constructively possessed the items
where they were found in his home.
It certainly was not the case
that under the Court’s analysis either the drugs or the firearm had to
be moved
from their actual location to another place where the defendant happened
to be found when arrested.
Spivey simply provides no support for the approach to constructive possession taken today
by the Court. From my perspective, saving one count of this defendant’s multiple
convictions is of small significance. What looms large is the uncertainty that now
will be cast over where a constructively possessed item is possessed. Is the
location of an item constructively possessed now a movable target, sometimes where the
person is located and other times where the item actually is? The location
of a constructively possessed item should not be made susceptible to manipulation to
maximize criminal penalties. I believe the better approach is to follow the plain
language of the statute itself. Even if I were to assume that there
is some room to argue ambiguity, I would conclude that the rule of
lenity favors defendant because neither the language nor legislative history of this statute
supports the majority’s conclusion.
The statute at issue here, N.J.S.A. 2C:35-7.1(a), provides that
[a]ny person who violates subsection a. of N.J.S.2C:35-5 by distributing, dispensing or possessing
with intent to distribute a controlled dangerous substance or controlled substance analog while
in, on or within 500 feet of the real property comprising a public
housing facility, a public park, or a public building is guilty of a
crime of the second degree, except that it is a crime of the
third degree if the violation involved less than one ounce of marijuana.
Subsection a. of N.J.S.A. 2C:35-5 provides:
Except as authorized by P.L.1970, c. 226 (C.24:21-1 et seq.), it shall be
unlawful for any person knowingly or purposely:
(1) To manufacture, distribute or dispense, or to possess or have under his
control with intent to manufacture, distribute or dispense, a controlled dangerous substance or
controlled substance analog; or
(2) To create, distribute, or possess or have under his control with intent
to distribute, a counterfeit controlled dangerous substance.
Under the rules of statutory construction, if the language is clear and unambiguous
on its face and admits of only one reasonable meaning and manner of
application, then those unambiguous words are enforced consistent with their literal meaning. State
v. Reiner,
180 N.J. 307, 311 (2004). If, however, a statute’s text lends
itself to more than one reasonable interpretation, courts may consult extrinsic sources in
the quest to ascertain and implement legislative intent. Ibid. When extrinsic sources do
not resolve the ambiguity, courts are expected to employ applicable canons of construction
that in the context of a penal statute call into play the rule
of lenity. Id. at 318. The rule of lenity requires that penal statutes
be strictly construed and that ambiguous language be read in favor of a
criminal defendant. State v. Livingston,
172 N.J 209, 217-18 (2002).
Aside from my difference with the majority about where a constructively possessed item
is possessed, the critical disagreement in this matter turns on application of the
term “possessing” contained in N.J.S.A. 2C:35-7.1. Despite the plain language that calls for
the possession of the contraband to be “in, on or within” the public
park zone, a majority of this Court uses its novel approach to constructive
possession to get the drugs within the park zone. Consistent with that view,
a defendant can be prosecuted under the statute if he is physically within
the proscribed zone but constructively possesses drugs that are located outside the proscribed
zone. Several textual arguments have been advanced for, and against, that approach.
If one were to agree that reasonable interpretations of N.J.S.A. 2C:35-7.1 have been
advanced by both parties, rendering it unclear whether the Legislature intended to make
a defendant standing within a drug-free zone culpable for constructively possessing drugs located
outside of the proscribed zone, resort may be had to extrinsic aids to
resolve the ambiguity. See State v. Reiner, supra, 180 N.J. at 314. Here,
however, extrinsic sources do not cure the specific ambiguity with which we are
faced.
N.J.S.A. 2C:35-7.1 closely resembles and was modeled after N.J.S.A. 2C:35-7 (creating drug-free school
zones). In general respects, both enactments share a similar purpose: to create drug-free
zones around certain areas by imposing enhanced penalties upon those who engage in
drug activities within those areas. See State v. Parker, 335 N.J.Super. 415, 424
(App. Div. 2000) (recognizing Legislative intent in enacting both 2C:35-7 and 2C:35-7.1 was
to reduce presence of drugs within protected zones). In enacting the Comprehensive Drug
Reform Act of 1986, the Legislature explained its intent in the statute’s opening
section. N.J.S.A. 2C:35-1.1(a)-(c). Besides expressing its abhorrence of drug activity on or near
school property and its desire to enhance the punishment of those who engage
in drug distribution within the protected zones, the Legislature emphasized its desire to
deter persons from the prohibited conduct through the use of “stern” enhanced penalties,
citing “the need to ensure a uniform, consistent and predictable system for the
sentencing of convicted offenders.” N.J.S.A. 2C:35-1.1(a). That said, nowhere does N.J.S.A. 2C:35-7.1 state
that its enhanced penalties apply to the constructive possession of drugs not actually
located in a protected zone.
See footnote 1
The vagueness of such an elastic notion of
the physical parameters of the enhanced-penalty zone is problematic. The majority acknowledges the
concerns inherent in a broad application of its holding and superimposes a “totality
of the circumstances” factual analysis in this type of possession case. It remains
to be seen in future cases just how far drug-free zones can be
stretched under the majority’s framework to include contraband physically located outside of the
perimeters expressly delineated by statute.
In my view, merely because the legislative history contains strong support for the
creation of drug-free zones does not mean that drugs physically located outside of
those zones may be swept within the statute’s reach. The statute describes clearly
and precisely (“500 feet”) the area within which enhanced penalties will pertain. We
presume an intent by the Legislature to avoid vagueness in penal statutes and,
consequently, in respect of their application, because of the negative consequences of such
imprecision. Vague laws may offend constitutional due process by failing to give adequate
notice. See State v. Valentin,
105 N.J. 14, 18 (1987).
Although it is undoubtedly true that the legislative history surrounding the Comprehensive Drug
Reform Act of 1986 evinces a strong legislative desire to wage an aggressive
campaign against drug-related activity, that general intent is not enough. Ibid. (stating that
“[p]enal laws cannot be extended by implication or intendment.”). Nowhere in those materials
is the answer to the precise question that this Court must now resolve:
whether the Legislature intended to include within the purview of 2C:35-7.1 the prosecution
of a person for a possessory offence under that statute when that person
stands physically within the public park zone but constructively possesses drugs located outside
of the statu
torily defined drug-free zone.
Because an examination of extrinsic sources does
not resolve the question of whether the legislative prohibition applies in these circumstances,
I am compelled to resort to the rule of lenity that requires that
penal statutes be construed strictly and ambiguities be interpreted in favor of criminal
defendants.
The rule of lenity “has at its heart the requirement of due process.
No one shall be punished for a crime unless both that crime and
its punishment are clearly set forth in positive law.” In re Suspension of
DeMarco,
83 N.J. 25, 36 (1980). And, the canon serves the compelling function
of preventing arbitrary and discriminatory enforcement. See State v. Valentin, supra, 105 N.J.
at 18 (quoting Grayned v. City of Rockford,
408 U.S. 104, 108-09, 92
S. Ct. 2294, 2298-99, 33 L. Ed.2d 222, 227-28 (1972)). The rule
of lenity and its requirement of strict construction in a defendant’s favor is
particularly apt when the statute at issue is a penalty enhancer. See DeVille
v. State,
858 A.2d 484, 487-88 (Md. 2004) (construing Maryland’s habitual drug offender
statute strictly and explaining that “[w]hen there is doubt as to the Legislature’s
intent regarding the application of an enhanced penalty, the rule of lenity requires
that any ambiguity within criminal statutes be interpreted in favor of the defendant.”).
For all the foregoing reasons, I respectfully dissent. I would reverse defendant’s conviction
under N.J.S.A. 2C:35-7.1 (count seven). I would hold that the cocaine that defendant
constructively possessed was located where the cocaine stash was kept and that, therefore,
defendant cannot be convicted of possession of that cocaine under N.J.S.A. 2C:35-7.1. The
statute does not apply when the drugs are not “in, on or within”
the precise perimeter of the drug-free zones delineated in the act.
Justice Albin joins in this dissent.
SUPREME COURT OF NEW JERSEY
NO. A-84 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES LEWIS,
Defendant-Appellant.
DECIDED December 8, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice Wallace
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice LaVecchia
CHECKLIST
Footnote: 1
Indeed, one could argue that such an interpretation of the statute renders
superfluous the language “by distributing dispensing or possessing with intent to distribute a
controlled dangerous substance or controlled substance analog” contained in 2C:35-7.1, because that activity
is already proscribed under 2C:35-5.