SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4064-94T3
A-4065-94T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
vs.
$36,560.00 IN U.S. CURRENCY,
Defendant.
(BEVERLY BLIGHT AND KENNETH JONES
INTERESTED PARTIES)
STATE OF NEW JERSEY,
Plaintiff-Appellant,
vs.
BEVERLY BLIGHT,
Defendant,
and
KENNETH L. JONES,
Defendant-Respondent.
Submitted February 6, 1996 - Decided April 1, 1996
Before Judges Michels, Baime and Villanueva.
On appeal from two judgments of the Superior
Court of New Jersey, Law Division, Ocean
County.
Deborah T. Poritz, Attorney General, attorney
for appellant (Bennett A. Barlyn, Deputy
Attorney General, of counsel and on the
brief).
Finnegan & Barth, attorneys for respondent
Kenneth Jones (John J. Finnegan III, of
counsel and on the brief).
The opinion of the court was delivered by
VILLANUEVA, J.A.D.
The State appeals from an order denying its forfeiture claim
for $36,000 in cash that was found in a strongbox underneath a
one-pound bag of marijuana and $610 found in a purse discovered
during a valid search. The State also appeals from a judgment
acquitting Kenneth L. Jones (defendant) entered by the Law
Division judge seventy-two days after the judge had originally
found defendant guilty of possession of marijuana, in violation
of N.J.S.A. 2C:35-10a(3).See footnote 1 We consolidated the two appeals.
During the execution of a search warrant on October 28,
1993, at the residence of Beverly Blight (Blight) at 318 Ash
Road, Bass River Township, members of the Ocean County Narcotics
Strike Force (Strike Force) found $36,560See footnote 2 in cash and more than
one and one-half pounds of marijuana.
On January 13, 1994, the Ocean County Prosecutor's Office
filed a verified complaint for forfeiture of the $36,560,
alleging that it constituted proceeds of illegal drug activity
or, alternatively, had been or was intended to be used in the
furtherance of unlawful activity or was an integral part of such
activity. N.J.S.A. 2C:64-1 to -9.
On May 18, 1994, the Ocean County Grand Jury returned an
indictment against Blight and Kenneth Jones (defendant) charging
them with third degree conspiracy to distribute marijuana, in
violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(11) (count
one); fourth degree possession of marijuana in excess of fifty
grams, in violation of N.J.S.A. 2C:35-10a(3) (count four); and
third degree possession of marijuana with intent to distribute,
in violation of N.J.S.A. 2C:35-5a(1) and 5b(11) (count five).
The indictment also charged Blight with fourth degree
distribution of marijuana, in violation of N.J.S.A. 2C:35-5b(12)
(counts two and three).
This case arises from the distribution of marijuana from Blight's residence during September and October 1993. Prior to trial, the trial court accepted Blight's and defendant's waiver of a jury trial. By consent of all parties, the trial court consolidated the forfeiture and criminal actions for purposes of trial. Immediately following the opening statements of counsel, Blight entered an unconditional plea of guilty to all but count one of the indictment.
Earlier that year, in an unrelated drug transaction, Richard
Ashworth was arrested for drug-related activities and pleaded
guilty to the charge of conspiracy to distribute marijuana. The
State agreed to recommend a probationary sentence in exchange for
Ashworth's cooperation with the Strike Force with regard to an
investigation of suspected drug activity at 318 Ash Road.
Specifically, Ashworth was instructed to arrange and conduct
controlled purchases of marijuana from Blight while wearing a
wireless body transmitter and using currency furnished by
investigators.
During the trial the State offered the following evidence.
During his conversation with Blight on the afternoon of September
7, 1993, Ashworth arranged to purchase marijuana at Blight's
residence later that evening. After Ashworth arrived at Blight's
residence, she asked him to "step into my office," referring to
the master bedroom. After proceeding into the master bedroom
with Blight, Ashworth asked to purchase an eighth of an ounce of
marijuana and Blight provided him with a clear plastic zip-lock
bag containing marijuana.
On September 21, 1993, Ashworth arranged a second controlled
purchase of marijuana from Blight. Upon arriving at her house
that evening, Ashworth and Blight discussed at length whether
Blight's source could secure large quantities of marijuana to be
purchased by Ashworth. Blight noted that with regard to her drug
transactions, "everybody makes a buck." During the conversation,
Blight walked into the master bedroom while Ashworth remained in
the living room. That evening Ashworth purchased sixth-eighth's
of an ounce of marijuana from Blight.
On September 30, 1993, Ashworth again arrived at Blight's
house and was greeted at the door by defendant. Defendant,
Ashworth and Blight then proceeded to the master bedroom where
Ashworth and Blight again discussed the possibility of her source
obtaining a large quantity of marijuana and the appropriate price
for it. At one point, defendant noted that Blight's source was
"very shaky to say the least." As Ashworth and Blight continued
to discuss the price of the marijuana, defendant, while sitting
on a platform bed, interjected, "You almost feel better about it
when somebody is gonna do it for nothin', if somebody is gonna go
it for nothin', ya know what I mean," and observed that, "Nobody
is doin' dick for nothin'." While in the bedroom, Ashworth
observed various quantities of marijuana in a gray strongbox
which Blight removed from underneath the bed and then unlocked.
Ashworth could see that the box contained various papers,
including a piece of paper with his name written on it that
reflected the amount of money he owed to Blight for the
marijuana.
On October 7, 1993, Ashworth returned to Blight's house.
Again defendant was present. As Ashworth, Blight and defendant
stood together in the kitchen, Blight extolled the virtues of the
marijuana she possessed and indicated that she and defendant had
just smoked a thin joint and gotten high. Defendant added that
"It's good pot," and stated that he was surprised by its potency.
When Ashworth asked Blight if she was willing to sell marijuana
in the amount of "eight-eighths," defendant repeated "eight-eighths." Defendant later asked Blight if her source had "come
here to personally" sell her the marijuana.
Based upon the information gathered by Ashworth,
investigators obtained a search warrant for Blight's residence,
which they executed at approximately 7:00 p.m. on October 28,
1993. During a search of the bottom drawer of an unlocked filing
cabinet located in the master bedroom, Investigator Jeffrey Vogt
discovered a one-pound bag of marijuana. The investigator then
uncovered a locked strongbox located directly underneath the bag
of marijuana. He did not recall that any of the interior doors
of the residence were locked when the search warrant was
executed.
While searching the master bedroom, Investigator Michael
Franzoso observed in plain view a second plastic bag of
marijuana, later found to weigh one-half pound, atop the bed's
headboard. He also found a triple-beam scale on the floor of the
bedroom. In addition, the investigator recovered from the master
bedroom a film container filled with foil-wrapped marijuana, a
bag of marijuana cigarettes and assorted narcotics paraphernalia.
Investigators then attempted to locate the key to the locked
strongbox. Keys obtained from Blight and defendant did not fit
the lock. While searching underneath the cushions of a couch in
the living room, Sergeant Jeffrey Bissey located keys. Blight,
who was observing the search, exclaimed, "Oh, you found my keys.
They've been lost for approximately two months," and thanked him.
The sergeant opened the locked box with one of the keys and
discovered bank envelopes containing $36,000 in currency. Each
envelope was marked with a figure that corresponded with the
amount of currency contained therein. Another $610 was recovered
from Blight's purse during the search.
On November 5, 1993, Investigator Scott Haemmerle examined
each envelope found in the strongbox to ascertain whether the
serial numbers of the currency seized matched those on the
currency previously furnished to Ashworth to conduct the
controlled buys. Of the nineteen $20 bills, two $10 bills, and
one $50 bill provided to Ashworth for the controlled buys on
September 7 and 21, the investigator discovered the same $50 bill
in an envelope numbered "sixteen." The investigator
contemporaneously noted the match on the confidential fund
expense voucher he was required to complete.
Sergeant Jeffrey Harper of the Strike Force, an expert in
narcotics and narcotics trafficking, testified that given the
facts of this case, the marijuana found in Blight's bedroom was
possessed for distribution purposes and not for personal use.
With respect to the $36,000 found underneath the one-pound bag of
marijuana in Blight's filing cabinet, Sergeant Harper stated that
in his sixteen years of experience, he frequently observed that
drug dealers hide their proceeds to avoid detection by police and
customers intent on robbing them. According to Sergeant Harper,
drug dealers rarely deposit the proceeds of their illegal
activities in banks or other financial institutions in their
effort to avoid creating a "paper trail" from which authorities
could be alerted to their illicit conduct. Lastly, Sergeant
Harper testified that the price of one pound of marijuana was
generally $1,200 to $1,600 and that a dealer could readily
generate a net profit of $4,540 by selling the marijuana in one-eighth ounce quantities for $30.
Blight and defendant elected to testify at their joint
trial. According to Blight, she first became acquainted with
defendant in 1980 when she moved to 318 Ash Road and became his
neighbor. She and defendant became "emotionally dependent on
each other" and intimate in their relationship after defendant's
wife left him in 1983. Defendant briefly moved in with her at
318 Ash Road for several weeks in the mid-1980's. Blight also
claimed that prior to October 28, 1993, although defendant would
frequently visit her house, his visits were short and he stayed
overnight no more than once or twice a month. According to
Blight, even though they had been engaged for six years,
defendant was living in a bedroom of a next-door neighbor,
Charles Suit, when investigators conducted the search of her
house on October 28, 1993.See footnote 3
Blight also claimed that she was drug dependent and that
defendant had attempted unsuccessfully to secure her admission
into various substance-abuse treatment programs prior to the
search of her home. She denied that defendant sold drugs,
although she acknowledged that he would occasionally smoke a
joint with her.
Blight further maintained that her only source of
subsistence, aside from dealing drugs, was public and emergency
assistance, food stamps, and the occasional sale of puppies and
candles. She also claimed that the $610 found in her pocketbook
by investigators constituted profits from the sale of candles.
Blight acknowledged that defendant "contributed substantial
amounts" to her "financial position" and had established a trust
account for her containing approximately $7,000.
She further claimed that when she was not home, she would
lock the door to her master bedroom with a heavy dead-bolt lock
for which she possessed the only key. Blight explained that the
strongbox discovered by investigators belonged to defendant, who
left the box at her house that morning because they were
scheduled to meet with a lawyer to discuss purchasing a house.
Although she acknowledged that she, too, possessed a key to the
strongbox, Blight maintained that it contained only defendant's
money derived from an inheritance. Blight claimed that she had
lost her key to the strongbox for two months and did not have
access to the strongbox "all the time." She adamantly denied,
however, ever taking money from the box. She later claimed,
though, that she would occasionally give defendant her paperwork
to keep for her in the box.
Finally, Blight claimed that defendant had no knowledge of
the large quantities of marijuana in her bedroom on October 28,
1993, and that she had placed the strongbox in the filing cabinet
after visiting the lawyer. She further contended that she told
the investigators during the search that the box belonged to
defendant and that it contained only his money. Blight also
denied profiting from the sale of marijuana, claiming that she
turned over all proceeds to her source, whom she identified as
her brother, in exchange for marijuana for her personal use.
During cross-examination, Blight acknowledged that defendant
had applied for and obtained a credit card for which they were
both jointly liable. Blight also conceded that defendant was
aware that she was selling marijuana but asserted that he
disliked Ashworth because defendant "pretty much caught on to
what was going on" and "never discussed marijuana" with her or
Ashworth "ever." She further stated that defendant would only
smoke marijuana when "enticed" by her to do so.
Blight claimed that defendant usually carried the strongbox
with him and would entrust it to her only when he stayed at her
house or "for some reason," which was "hardly ever." Later,
however, she testified that she kept her son's bonds in the box
as well as her passport and birth certificate and "possibly"
those of her children. She denied stating to an investigator,
"That's my money, I've been saving that for a long time," when
the strongbox was opened in the living room during the search.
When asked by the trial court whether she or defendant
dominated their relationship, Blight asserted that she did and
"still do[es]." Immediately thereafter, she denied having any
control whatsoever over defendant's strongbox. Blight further
explained that defendant did not possess the key to her bedroom
because "nothing of his was in there" and he was not permitted
there without her permission. She admitted, however, that she
and defendant had been engaged for six years and that defendant
purchased an interest in her residence at
318 Ash Road in May 1994.
Blight acknowledged misrepresenting information on her
application for public assistance in September 1992 by failing to
disclose her trust account established by defendant. Blight also
reluctantly conceded that defendant would occasionally deposit
personal checks and paychecks into her bank account.
According to defendant, from 1982 to 1987, he resided at 321
Ash Road before selling the house for a profit of $1,264, which
he kept in his strongbox. He also identified a deposited check
in the amount $9,897.02 which he claimed was given to him by his
mother following his father's death in February 1987. He said he
withdrew the entire amount from the bank and kept it in his
strongbox. He further identified a letter dated December 11,
1987, from an estate attorney which reflected a $2,310.46 advance
on his inheritance following the death of his mother. Defendant
claimed that he deposited that check, waited until it cleared,
then withdrew the entire balance and added it to the money in his
strongbox. When presented with his bank records obtained from
Southern Ocean State Bank, he indicated that an initial deposit
of $20,000 reflected in a statement constituted the bulk of his
inheritance, which he gradually withdrew and kept in his
strongbox. Finally, defendant testified that in July 1990 he
established a trust account for Blight using $5,410.68 he had
withdrawn from a pension plan.
He further maintained that the funds he had accumulated
remained in his strongbox and that he would take the box with him
wherever he went. Although he "never really completely felt
safe" when he carried the box, he nonetheless believed it was
"very safe" at Blight's house because, according to defendant,
she was always home and never went out.
Defendant acknowledged his long-standing engagement to
Blight but asserted that prior to and during the search of her
residence he had resided in a single bedroom rented from Charles
Suit at 320 Ash Road. He admitted that he did not pay rent but
did perform services for Suit and bought food. However,
defendant conceded that he listed 318 Ash Road as his place of
residence when applying for employment with the Taj Mahal Casino
prior to the search of Blight's home. He provided that same
address to the Casino Control Commission when applying for
employment with a casino. Defendant also claimed that he
received mail at both 318 and 320 Ash Road, as well as at a post
office box.
Defendant knew that Blight customarily kept her supply of
marijuana in the master bedroom, but he disavowed any knowledge
of the exact location. He also denied ever witnessing Blight
selling marijuana to Ashworth. According to defendant, whenever
he expressed his disapproval of Blight's drug dealing activities,
she told him not to worry about it and to mind his own business.
Although defendant claimed that he had previously contacted
various agencies regarding possible substance-abuse treatment for
Blight, he admitted that he occasionally smoked marijuana with
her and acknowledged sharing a joint with her just before
Ashworth's visit on October 7, 1993.
On October 28, 1993, defendant took the day off as a
security guard at the Taj Mahal Casino to perform some errands
with Blight. He claimed that when he arrived at her house that
morning, he gave her his strongbox to lock up before visiting
Suit's attorney to discuss the purchase of Suit's home.
Defendant maintained that he did not have a key to the master
bedroom of Blight's house, nor did he enter the bedroom at any
time the preceding week.
On cross-examination, defendant conceded that Blight
possessed the key to the strongbox for approximately one year
before the search of her home. With respect to the $1,264
realized from the sale of defendant's first home, defendant
claimed to have forgotten that $500 of the proceeds was paid to
his former wife and the remaining amount was held in escrow to be
paid to the Burlington County Welfare Board. Defendant further
claimed that he earned between $200 and $225 per week net plus
tips from 1987 to 1989 when he pumped gas before being hired by
the Taj Mahal Casino in 1989.
When questioned as to why he allegedly withdrew his
inheritance from the bank and kept it in the strongbox, defendant
claimed that he distrusted financial institutions after
encountering legal difficulties with the distribution of his
parents' estate in 1987. However, when confronted with a bank
statement dated September 30, 1988, showing numerous deposits and
withdrawals made by him from July through September 1988,
defendant claimed that he "wasn't certain why" he continued to
patronize the bank. Indeed, defendant acknowledged opening up
both a personal checking account for himself and a trust account
for Blight in 1990. Defendant asserted that he had no idea how
much money he removed from the box between 1987 and 1990 and
claimed that during this period he made no major purchases. He
conceded, however, having purchased several used cars, one of
them costing over $2,000, paid for with money obtained from the
strongbox. He also said that he had paid "from the money that
[he] had" the sum of $1,500 to attend school in Atlantic City in
order to obtain temporary employment with a casino in Haiti.
Defendant further maintained that despite his fear that his
car would be stolen, he nonetheless would leave the strongbox
containing approximately $30,000 in the trunk wherever he went.
Moreover, although he and Blight were engaged to be married,
defendant claimed that he slept in the den area as often as four
times a week and only rarely slept in the master bedroom. He
also acknowledged receiving mail at Blight's address at least
once a week.
Defendant also acknowledged being sentenced in federal
district court on August 9, 1990, following his plea of guilty to
the crime of making fraudulent demands against the United States
for cashing his deceased mother's social security checks.
Although ordered to pay restitution to the Social Security
Administration as a condition of probation, defendant conceded
that he had not paid $4,000 in outstanding restitution nor had he
notified the Social Security Administration that he possessed the
money contained in the strongbox. Furthermore, defendant
obtained a mortgage for
318 Ash Road on March 29, 1994, despite
having had his money seized four months earlier.
When shown various personnel forms pertaining to his
employment at the Taj Mahal Casino which he had personally
completed and signed in 1990, defendant admitted that he had
misrepresented information concerning his address by listing both
Blight's address and telephone number as his own. In a notarized
letter to the Casino Control Commission dated December 1, 1989,
defendant again listed his permanent place of residence since
September 1989 as 318 Ash Road. Defendant also listed Blight's
telephone number and address on various banking forms when he
opened accounts with Collective Federal Savings Bank in 1990.
Lastly, defendant indicated that at the time Blight's house
was searched, only the television in the master bedroom worked.
He asserted, however, that the master bedroom was "pretty much
off limits" and that most of his papers were in his room at 320
Ash Street. Defendant maintained that he would not keep anything
important in Blight's master bedroom because he lacked access to
it but, nonetheless, would readily leave his strongbox there.
Defendant's daughter, Kelly Hamilton, testified that the
strongbox contained money and her father frequently carried it
with him. Brenda Molosky, Blight's daughter, testified that she
never observed defendant sleeping at her mother's house and she
occasionally observed him carrying an off-white or cream-colored
box containing envelopes filled with money.
In rebuttal, the prosecutor called Investigator Krista
Emerson, who participated in the search of Blight's house. She
testified that when investigators opened the strongbox in
Blight's presence, Blight stated, "I have been saving that money
for a long time." Postman Michael Dibb testified that his postal
route included 318 Ash Road and that he had been delivering mail
to defendant since 1989. Dibb testified that he had never
delivered mail to defendant at any address other than 318 Ash
Road.
At the close of the State's case in the joint trial, the trial court denied both Blight and defendant's motions for judgments of acquittal. At the conclusion of the trial on December 22, 1994, the trial court found defendant guilty of
fourth-degree possession of marijuana (count four). Defendant
was acquitted of the remaining counts of the indictment.See footnote 4
The trial court further ruled that the State had not proven
by a preponderance of the evidence that the money seized during
the execution of the search warrant constituted proceeds of
illegal drug activity. The trial court concluded that the
$36,000 seized from the strongbox and the $610 seized from
Blight's purse during the search of her home were not the
proceeds of illegal narcotics activity and were not used in the
furtherance of unlawful activity; therefore, the money was not
subject to forfeiture pursuant to N.J.S.A. 2C:64-1 to -9.
Accordingly, the trial court ordered that the money be returned
to defendant. However, because of fraud committed by defendant
against the Social Security Administration, the trial court
earmarked a portion of the currency for satisfaction of the
amount defendant owed to the Social Security Administration. A
written order memorializing the court's ruling was filed on
February 28, 1995.
On February 17, 1995, defendant filed a motion for
reconsideration with respect to the trial court's finding of
guilt as to count four. Following a hearing on March 3, 1995,
the trial court granted defendant's motion and set aside the
verdict because it "wasn't convinced beyond a reasonable doubt .
. . that [defendant] ever intended to control that stuff."See footnote 5
The State filed notices of appeal from the order entered in
the forfeiture action and the order of reconsideration of the
finding of defendant's guilt on count four and granting a
judgment of acquittal.
The State contends that there was not sufficient credible evidence in the record to support the trial court's finding that the $36,560 seized by investigators was not subject to forfeiture.
After the presentation of evidence, the trial court explicitly rejected the claim by defendant and Blight that defendant carried the strongbox with him at all times. The trial court further dismissed defendant's thoroughly repudiated assertion that he distrusted banks and therefore never utilized them. Nonetheless, the trial court accepted as credible defendant's claim that the money in the strongbox belonged to him rather than Blight, and further concluded, without elaboration, that defendant had accurately identified legitimate sources of the money through his financial records.
Significantly, the trial court never distinguished the $610
found in Blight's purse from the $36,000 discovered in the
strongbox. Nor did the trial court address the fact that since
Blight pleaded guilty to two counts of distribution of marijuana
at the onset of the proceedings, there existed a rebuttable
presumption that the $610 was utilized in furtherance of an
unlawful activity and therefore subject to forfeiture under
N.J.S.A. 2C:64-3j.
Notwithstanding its acknowledgement that investigators had
seized a considerable quantity of marijuana at Blight's
residence, the trial court characterized her sale of marijuana as
a "ham and egg operation." Based on Blight's uncorroborated
testimony that her distribution of marijuana was confined "to
people across the street," the trial court further concluded that
the size of her trafficking operation was inconsistent with the
scale necessary to generate the $36,000 recovered from the
strongbox.See footnote 6 The trial court's finding that possession of one
and one-half pounds of marijuana equated to a "two-bit operation"
appears to have derived from the undue emphasis it placed upon
the alleged dominance of Blight over the defendant. For example,
the trial court repeatedly remarked that Blight was "the dominant
personality," who "sought to drag [defendant] down with her under
the circumstances." In disregarding persuasive evidence that
defendant, in fact, resided with Blight when her house was
searched, the trial court stated: "Again, I'll say, believe it
or not -- I believe it in this case -- she is so dominant, I'm
convinced, that he roomed next door. He wasn't living there."
After assessing defendant as "generally a productive person" who
meekly acquiesced in Blight's criminal activities, the trial
court once more emphasized that Blight "dominated" their
relationship. Based upon these findings, the trial court refused
to order forfeiture.
An appellate court is bound by a trial judge's determination of credibility and those findings of fact which are reasonably supported by sufficient and credible evidence. State v. Seven Thousand Dollars, 136 N.J. 223, 243 (1994) (O'Hern J., dissenting); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). When, however, the focus of the contested evidence is on the judge's evaluation of the underlying facts and implications to be drawn therefrom, this court has held that the appellate function "broadens somewhat." C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989). Where an evaluation of the record leaves the reviewing court "`with the definite conviction that the judge went so wide of the mark that a mistake must have been made,'" that court may "`appraise the record as if [it] were deciding the matter at inception and make [its] own
findings and conclusions.'" Ibid. (quoting Pioneer Nat'l Title
Ins. Co. v. Lucas,
155 N.J. Super. 332, 338 (App. Div. 1978)).
Applying this standard, the trial court's decision denying
forfeiture was totally unsupported by the facts and will be given
no deference. The decision ignored the overwhelming evidence by
the State, including defendant's own certification to State
authorities as to his residence, and the trial court chose to
accept testimony -- bordering on the incredible -- of witnesses
who were either interested in the proceeding or so close to the
interested parties as to have a clear capacity to be biased. We
believe that the logical conclusion that can be drawn from the
credible evidence is that on October 28, 1993, defendant lived
with his long time fiancée at 318 Ash Road; and, therefore, there
was a direct causal relationship between the $36,000 and the
sales of marijuana sufficient to render the money subject to
forfeiture. By ruling otherwise, the trial court clearly missed
"the mark."
The provision of the Code of Criminal Justice authorizing
the civil forfeiture of property, N.J.S.A. 2C:64-1a, provides
that property is forfeitable if it consists of
(1) Controlled dangerous substances,
firearms which are unlawfully possessed,
carried, acquired or used, illegally
possessed gambling devices, untaxed
cigarettes and untaxed special fuel.
These shall be designated prima facie
contraband.
(2) All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to
facilitate the perpetration of illegal
acts, or buildings or premises
maintained for the purpose of committing
offenses against the State.
(3) Property which has become or is intended
to become an integral part of illegal
activity, including, but not limited to,
money which is earmarked for use as
financing for an illegal gambling
enterprise.
(4) Proceeds of illegal activities,
including, but not limited to, property
or money obtained as a result of the
sale of prima facie contraband as
defined by subsection a.(1), proceeds of
illegal gambling, prostitution, bribery
and extortion.
When non-prima facie contraband, also known as derivative contraband, is involved, the State must prove by a preponderance of the evidence that the seized property, here the $36,560, was subject to forfeiture because it was used "in furtherance of" or "to facilitate the perpetration of" or as "an integral part of" the illegal act. N.J.S.A. 2C:64-1a. State v. Seven Thousand Dollars, supra, 136 N.J. at 233-34. The State must therefore demonstrate a direct causal relationship between the use of the property and the illegal activity. Id. at 234; State v. One 1986 Subaru, 120 N.J. 310, 320 (1990). "The connection connotes a sense of dependency; a merely casual relationship will not suffice." State v. Seven Thousand Dollars, 136 N.J. at 234-35. In those cases in which currency has been forfeited as derivative contraband, "the connection to illegal activity is often grounded in the money's proximity to prima facie contraband, such as
controlled dangerous substances, or admitted past or planned
illegal activity." Id. at 235.
The currency seized by investigators in the present case
obviously could not have been in closer proximity to the
marijuana: the strongbox containing the $36,000 was discovered
resting directly underneath a one-pound bag of marijuana in the
bottom drawer of a filing cabinet in Blight's master bedroom, the
same room where she conducted her transactions with Ashworth
approximately one month before the search. Authorities also
discovered in that same room an Ohaus triple-beam scale commonly
used to measure narcotics, assorted narcotics paraphernalia and
an additional one-half pound bag of marijuana. In rejecting the
inescapable inference that the money, in fact, constituted
proceeds from Blight's sale of marijuana or, alternatively, was
utilized in some manner in the furtherance of her distribution
operation, the trial court disregarded ample evidence that
established Blight's control and use of the strongbox and its
contents. For instance, she had the key to the strongbox which
she kept in her locked bedroom, and she refused to give defendant
the key to her bedroom or the right to enter it without her
permission.
Most significantly, the trial court entirely discounted the
testimony of Investigator Haemmerle who testified that a $50 bill
given to Ashworth to conduct a controlled purchase of marijuana
from Blight was discovered in an envelope in the strongbox during
the search of her home. This testimony alone established that
Blight controlled the box and utilized it during the course of
her criminal endeavors. Similarly, the trial court disregarded
without comment Ashworth's testimony that Blight opened an
unlocked strongbox in his presence while in the master bedroom
and removed a piece of paper reflecting the amount of money he
owed Blight for the marijuana.
Blight's utilization of the box was further established by
the testimony of investigators who executed the search of
Blight's residence on October 28, 1993. Sergeant Bissey
testified without contradiction that when he attempted to unlock
the strongbox using keys found in the residence, including keys
removed from defendant's person, none fit the lock. However,
when Bissey discovered the key ring in the couch, Blight stated,
"Oh, I've been looking for those keys." Investigator Emerson
testified that when the box was opened in her presence, Blight
exclaimed that she had been saving that money "for a long time."
Moreover, it is uncontroverted that when opened, the strongbox
was bereft of any personal papers or effects, although Blight and
defendant each testified that such documents were usually kept in
the strongbox.
In thoroughly insulating defendant from Blight's drug
dealing, the trial court apparently disregarded the uncontested
fact that Blight and defendant had been engaged for six years
prior to the search and, as evidenced by their joint credit card
and the establishment of Blight's trust account, obviously
commingled their assets. Notwithstanding the trial court's
finding to the contrary, the State conclusively established that,
at a minimum, defendant construed Blight's house as his permanent
place of residence prior to and during the period in which Blight
sold the marijuana to Ashworth. Defendant's financial and
employment records, including a signed and notarized letter to
the Casino Control Commission, all disclosed that defendant
listed Blight's address and telephone number as his own. Aside
from the testimony of defendant's and Blight's family members,
defendant presented no corroboration whatsoever that he lived
someplace other than at
318 Ash Road from 1989 through 1993. The
court chose to ignore the best evidence of residence, that of the
United States postman who, since 1989, delivered defendant's mail
only to 318 Ash Road.
The transcripts of Ashworth's conversation with Blight and
defendant on September 21, 1993, and October 7, 1993, belie
defendant's assertion, accepted by the trial court, that he
objected to Blight's illegal activities and her frequent use of
marijuana. Defendant did not present any corrobative evidence
that he had endeavored to secure substance-abuse treatment for
Blight. Defendant's own admitted use of marijuana with her
renders any such claim highly suspect. Moreover, if, as the
trial court concluded, Blight so thoroughly dominated defendant,
it necessarily follows that she also asserted control over his
strongbox and the currency therein.
The trial court also ignored the fact that although
defendant had deposited and then withdrawn his alleged
inheritance from Southern Ocean Bank in 1988, the envelopes
recovered from the strongbox were from Collective Federal Savings
Bank. In addition, five of the envelopes were dated January 1992
and two were dated March 1993. Even the $610 recovered from
Blight's purse was contained in Collective Federal Savings Bank
envelopes.
The cross-examination by the prosecutor clearly demonstrated
that neither Blight nor defendant were reluctant to dissembling
when it suited their interests. The trial court itself dismissed
as undeserving of belief several significant assertions made
repeatedly by defendant, a convicted felon, and Blight, an
admitted liar, relating to the strongbox. Although both also
admitted defrauding government agencies, the trial court stated
that "I cannot permit that to affect my judgment." We are at a
loss to understand how the trial court nevertheless credited
defendant's self-serving claim of sole ownership of the strongbox
and currency therein. Moreover, it is not credible that someone
such as defendant would keep $36,000 in cash in a room to which
he did not have ready access.
The trial court's finding that the strongbox and currency
seized by investigators were unconnected to Blight's distribution
operation is clearly not supported by adequate substantial and
credible evidence. By statute,
[e]vidence of a conviction of a criminal
offense in which seized property was either
used or provided an integral part of the
State's proofs in the prosecution shall be
considered in the forfeiture proceeding as
creating a rebuttable presumption that the
property was utilized in furtherance of an
unlawful activity.
[N.J.S.A. 2C:64-3j.]
A wealth of evidence convincingly established by a preponderance
of the evidence that the $36,610 (including the $50 from the
controlled purchase) was not acquired from legitimate sources but
rather was derived from, or formed an integral part of, the sales
of large quantities of marijuana conducted from Blight's
residence for which she was ultimately prosecuted and pled
guilty. The contradictory statements of Blight and defendant on
how and when the strongbox happened to be in Blight's file
cabinet on the day of the search underscores the strength of the
evidence against them and undermines the credibility of both.See footnote 7
The factual findings which undergird the judgment denying
forfeiture are not supported by adequate, substantial and
credible evidence and are so wholly insupportable as to result in
a denial of justice. In re J.T.,
269 N.J. Super. 172, 188 (App.
Div. 1993). Therefore, the State was clearly entitled to the
$36,560 seized.
The State contends that the trial court erred in setting aside its finding of defendant's guilt because there was
overwhelming credible evidence to warrant a finding of
constructive possession by defendant.
At the conclusion of the trial on December 22, 1994, the
trial court found sufficient evidence that defendant was guilty
of possessing marijuana discovered in Blight's master bedroom
under a theory of constructive possession. Specifically, the
court found that defendant "had constructive possession of the
marijuana, if not on this date, on dates close to it" since he
"had the ability to exercise control over that marijuana" and was
not denied access to it as claimed by defendant and Blight. The
court accordingly found defendant guilty of fourth degree
possession of marijuana.
Seventy-two days later, at a hearing held on March 3, 1995,
the court entertained defendant's motion for reconsiderationSee footnote 8 of
its previous finding of guilt with respect to count four. What
is difficult to understand is that the trial court knew, as it
stated during the summations, that the principal issue was
"whether or not there was an intention [by defendant] to exercise
control or dominion" over the marijuana. Despite defendant's
admitted use of marijuana with Blight, the trial court stated:
I sat and listened to all the evidence
in the case, and I think there was testimony,
and correct me, [prosecutor], if I'm wrong,
that I think there were -- there was an
admission that he had a joint with her on one
or two occasions. And it became apparent to
me from all of his testimony who is the
dominant person -- underline the word
dominant -- with regard to this whole
relationship.
. . . .
The fact that he had one or two joints,
and I'm convinced that, based upon what I
heard, he wasn't the guy that went in there
and got them and rolled them and whatever.
He -- this was her stuff. In plain English.
This was her stuff.
The bottom line is, I was wrong. I kind
of "thunk" it at the time. It was no
accident where I didn't say that he intended
to possess it. I don't I -- was struggling
with that. And I say here, for all to hear,
that I, obviously, wasn't convinced beyond a
reasonable doubt, and I go no further than
that.
I wasn't convinced beyond a reasonable
doubt that he ever intended to control that
stuff. There was . . . no credible testimony
that he ever did.
That was her stuff. She was trying to
really get him to be a user, user, user. And
he puffed a couple of joints -- not to
minimize that -- on a couple of occasions.
And for that -- for me to say -- it's a broad
jump from there to say he possessed a pound
and a half of stuff on that other day.
Thereafter, the court granted defendant's motion and set aside
the verdict because it "wasn't convinced beyond a reasonable
doubt that [defendant] ever intended to control that stuff."
Criminal possession of an item signifies "intentional
control and dominion, the ability to affect physically and care
for the item during a span of time," State v. Davis,
68 N.J. 69,
82 (1975), accompanied by knowledge of its character. State v.
Brown,
80 N.J. 587, 597 (1979); State v. Reed,
34 N.J. 554, 557
(1961). Possession may be either actual or constructive.
N.J.S.A. 2C:35-10a. By definition, proof of constructive
possession relies almost exclusively upon circumstantial
evidence. As set forth by the Supreme Court of New Jersey in
State v. Brown, supra, physical or manual control over the item
itself is not required. All that is necessary is "an intention
to exercise control over [the item] manifested in circumstances
where it is reasonable to infer that the capacity to do so
exists." 80 N.J. at 597. The concept of constructive possession
permits several persons to jointly possess an object
simultaneously. State v. Foreshaw,
245 N.J. Super. 166, 186
(App. Div.), certif. denied,
126 N.J. 327 (1991).
As a general proposition, criminal possession may not be
inferred from a defendant's mere presence at the location where
contraband is found. State v. Brown, supra, 80 N.J. at 593. To
justify such an inference, there must be "`other circumstances .
. . tending to permit such an inference to be drawn.'" Ibid.
(citation omitted); State v. Shipp,
216 N.J. Super. 662, 665
(App. Div. 1987). For example, evidence that a person had
actually possessed contraband prior to its discovery may be
admitted to demonstrate his or her constructive possession on the
occasion charged. State v. Cofield,
127 N.J. 328, 339-40 (1992).
In applying this standard to the facts adduced at trial, the
trial court should not have set aside its finding of defendant's
guilt since the evidence and available inferences amply supported
its original conclusion that defendant constructively possessed
the marijuana beyond a reasonable doubt. Indeed, the facts
adduced at trial were analogous to those examined in Brown.
There, the Court concluded that evidence presented by the State
at trial was sufficient to permit the jury to draw the inference
that defendant was in constructive possession of narcotics
discovered in a dress located in the bedroom closet of an
apartment. Specifically, the State established at trial that
defendant resided at the apartment and had permitted officers to
enter it upon the execution of a search warrant. State v. Brown,
supra, 80 N.J. at 590-91. Here, whether or not defendant resided
at 318 Ash Road, there was ample circumstantial evidence that he
constructively possessed the marijuana on October 28, 1993.
Furthermore, in State v. Brown, the Court noted that the
presence of narcotics paraphernalia in the apartment and the
observation by police officers of known and suspected narcotics
users frequenting the apartment over a three-day period further
served to strengthen the inference of defendant's knowledge and
control of the concealed heroin. Id. at 595-97.
Here, as in Brown, defendant was on the premises when the
marijuana was discovered and "[t]here were other evidential
circumstances lending distinctive color to the character of
defendant's presence at the scene." Id. at 594; see State v.
Milton,
255 N.J. Super. 514, 523 (App. Div. 1992). For example,
defendant acknowledged smoking marijuana with Blight at her
residence on October 7, 1993, less than one month before the
search of the residence, and on several previous occasions.
Indeed, while in the presence of Ashworth on October 7, defendant
characterized the marijuana he had just smoked as potent and of
good quality. Moreover, defendant acknowledged his awareness of
Blight's drug-dealing activities and the presence of her personal
supply of marijuana in the master bedroom, the same bedroom he
claimed to have slept in at least once or twice a month. He
further acknowledged sleeping in the den area of Blight's house
as often as four times a week.
For some inexplicable reason, the court discounted the
substantial and compelling evidence that defendant, in fact,
resided with Blight, his long-time fiancée, prior to and during
the period in which her residence was searched and was present
during two drug sales to the State's informant. Moreover, the
trial court's ultimate decision that defendant did not
constructively possess the marijuana is in startling contrast to
its decision that defendant had sole possession of the strongbox
lying underneath a one-pound bag of marijuana in Blight's bedroom
to which he did not have a key.
Viewing the evidence in its entirety, the trial court was
certainly entitled and perhaps even compelled to draw the
inference of intent, knowledge and control of the marijuana by
defendant at the time of execution of the search warrant on
October 28, 1993. There was no insufficiency of evidence. See
State v. Berry,
140 N.J. 280, 303 (1995). The best evidence that
there were sufficient proofs to preclude the setting aside of the
verdict of guilt based upon insufficient evidence lies in the
fact that if this matter had been tried to a jury, the judge
could not have granted a motion for a judgment of acquittal at
the end of the State's case nor after all the evidence had been
closed pursuant to R. 3:18-1. The trial court's finding to the
contrary is clearly a mistaken one and is so plainly unwarranted
that the interests of justice demand our intervention and
correction. See State v. Johnson,
42 N.J. 146, 162 (1964).
Because the trial court's setting aside of its finding of
guilt was so wide of the mark, we reverse it, reinstate the
finding of guilt and remand the matter for sentencing.
Defendant argues that the State's appeal of his acquittal is barred by the principle of double jeopardy. The defendant misstates the issue involved herein, which is whether the State may appeal a trial court's setting aside of its finding of guilt when there was sufficient evidence to justify the conviction.
The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides that no persons shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The language of its New Jersey constitutional counterpart provides that "[n]o person shall, after acquittal, be tried for the same offense" and has been held to be fully coextensive in scope and application with the federal prohibition against double jeopardy. N.J. Const. art. I, ¶ 11; State v. Farmer, 48 N.J. 145, 168 (1966), cert. denied, 386 U.S.
991,
87 S. Ct. 1305,
18 L. Ed.2d 335 (1967); State v. Ortiz,
202 N.J. Super. 233, 240 (App. Div.), certif. denied,
102 N.J. 300
(1985).
Double jeopardy protection is afforded in three distinct
circumstances. "The double jeopardy guarantees protect against a
second prosecution for the same offense after acquittal or after
conviction, and against multiple punishments for the same
offense." State v. Darby,
246 N.J. Super. 432, 438 (App. Div.),
certif. denied,
126 N.J. 342 (1991). However, when a judge rules
in favor of a defendant after a verdict of guilty has been
entered by the trier of fact, the State may appeal from that
ruling without running afoul of the Double Jeopardy Clause.
State v. Lynch,
79 N.J. 327, 341 (1979) (citing United States v.
Wilson,
420 U.S. 332,
95 S. Ct. 1013,
43 L. Ed.2d 232 (1975));
State v. Tropea,
78 N.J. 309, 314 (1978). This exception to the
double jeopardy bar derives from the recognition that when a
verdict of conviction is improvidently set aside, appellate
reversal does not expose a defendant to further proceedings
because it has the automatic effect of reinstating the jury
verdict. State v. Lynch, 79 N.J. at 341. In short, the specific
vice sought to be prevented by the Double Jeopardy Clause -
successive and vexatious prosecutions for the same criminal act -- is simply not implicated under such circumstances.
Of particular import to this case is the recognition by the
United States Supreme Court that the aforementioned exception to
the double jeopardy bar is equally applicable to a finding of
guilt which is set aside following a bench trial. In United
States v. Morrison,
429 U.S. 1,
97 S. Ct. 24,
50 L. Ed.2d 1
(1976), the Court explicitly construed a District Court's general
finding of guilt following a bench trial as the approximation of
a verdict of guilty for purposes of double jeopardy.
Specifically, the Court stated:
"Since the Double Jeopardy Clause of the
Fifth Amendment nowhere distinguishes between
bench and jury trials, the principles given
expression through that Clause apply to cases
tried to a judge. . . .
"A general finding of guilt by a judge may be
analogized to a verdict of `guilty' returned
by a jury."
[Id. 429 U.S. at 3, 97 S. Ct. at 26, 50 L.
Ed.
2d at 4 (quoting United States v.
Jenkins,
420 U.S. 358, 365-66,
95 S. Ct. 1006, 1011,
43 L. Ed.2d 250, 257 (1975))].
Likewise, the trial court's disposition of defendant's
motion for reconsideration in the present case, months after the
finding of guilt, obviously constituted the functional equivalent
of a judgment of acquittal entered in accordance with R. 3:18-2
following a jury verdict of guilty. Consequently, the State is
entitled to appeal the setting aside of the verdict since success
on the appeal would result only "in the reinstatement of the
general finding of guilt, rather than in further factual
proceedings relating to guilt or innocence," United States v.
Morrison, 429 U.S. at 3-4; 97 S. Ct. at 26, 50 L. Ed.
2d at 4.
See R. 2:3-1(b)(3); State v. Lynch, 79 N.J. at 341-42.
The trial court did not, as claimed by defendant, set aside
its finding of guilt because of insufficient evidence. In
addressing defendant's motion for judgments of acquittal at the
close of the State's case on December 21, 1994, the trial court
was afforded an opportunity -- contemporaneous with the
elicitation of the evidence -- to consider the State's proofs in
light of the standard set forth in State v. Reyes,
50 N.J. 454,
458-59 (1967). Significantly, it denied the motion for judgments
of acquittal as to all counts in the indictment.
Furthermore, when the trial court originally found defendant
guilty of possessing marijuana in Blight's master bedroom, it
explicitly acknowledged that based upon the State's proofs, an
inference could readily be drawn that defendant "had constructive
possession of the marijuana" since he "had the ability to
exercise control over that marijuana" and was not denied access
to it as claimed by defendant and Blight. Months later, the
trial court inexplicably based its rejection of that same
inference on the interlocking and self-serving testimony of
defendant and Blight, which it deemed credible. This testimony
obviously was given to insulate defendant from Blight's admitted
wrongdoing. Because the trial court months later apparently
disagreed with its own original resolution of the conflicting
evidence presented at trial, it impermissibly changed its mind in
the face of amply sufficient evidence. In fact, we believe that
the evidence was not only sufficient but, when considered in its
entirety, it fairly reeks of defendant's guilt of constructive
possession of the marijuana.
Based upon the State's factual evidence and expert
testimony, State v. Berry, supra, 140 N.J. at 303; State v.
Reyes, supra, 50 N.J. at 458-59, the defendant was not entitled
to a judgment of acquittal after presentation of the State's
case; therefore, the motion for reconsideration must be
considered as a motion for a judgment of acquittal
notwithstanding the verdict.
The trial court never mentioned the words "against the
weight of the evidence," but that was really the basis for
setting aside the finding that defendant was guilty. In Tibbs v.
Florida,
457 U.S. 31, 44,
102 S. Ct. 2211, 2219,
72 L. Ed.2d 652, 663 (1982), the United States Supreme Court unequivocally
held that when a verdict is set aside by a reviewing court as
being against the weight of the evidence, the Double Jeopardy
Clause does not bar retrial for the same offense. Therefore, the
mere reinstatement of the trial court's initial and correct
finding of guilt would neither violate the Double Jeopardy Clause
nor implicate -- much less negate -- the concerns embodied
therein. Accordingly, the State is not foreclosed on double
jeopardy grounds from seeking review of the court's dismissal.
The Double Jeopardy Clause does not shield defendant from
review of the trial court's patently erroneous conclusion that
its earlier finding of guilt was not sustained by the weight of
the evidence adduced at the trial. Therefore, we reverse and
vacate the March 3, 1995, judgment of acquittal, reinstate the
trial court's initial finding of guilt with respect to count four
and remand so that the trial court can reinstate the finding of
guilt on count four, charging defendant with fourth degree
possession of marijuana, and sentence defendant.
We also reverse the trial court's order denying forfeiture
and remand to the trial court to enter an order of forfeiture of
the currency in the amount of $36,560.
Footnote: 1 The only judgment of conviction/judgment of acquittal
entered (which erroneously states that the adjudication was by
jury trial) states:
It is, therefore, on 12/22/94 ORDERED AND ADJUDGED that
the defendant is acquitted of the charges contained in
Counts One and Five of Indictment 94-5-00442.
It is, therefore, on 03/03/95 ORDERED AND ADJUDGED that the defendant is acquitted of the charges contained in Count Four of Indictment 94-5-00442. Footnote: 2 The amount set forth in the forfeiture complaint is derived from the $36,000 found in a strongbox at 318 Ash Road and $610 recovered from Blight's purse, minus $50 used by investigators to conduct a controlled purchase of marijuana from Blight prior to the execution of the search warrant. Footnote: 3 Subsequent to October 1993 defendant acquired an interest in 318 Ash Road and moved in with Blight on a permanent basis. Footnote: 4 The record does not contain any judgment of acquittal of defendant on counts one and five. Blight was acquitted of count one of the indictment. Footnote: 5 At that point, based upon defendant's admission that he smoked marijuana with Blight, the prosecutor asked the trial court to consider the lesser-included offense of failing to deliver a controlled dangerous substance to the nearest law enforcement officer in violation of N.J.S.A. 2C:35-10(c). The trial court found defendant not guilty of that offense as well. The State has not appealed from that decision. Footnote: 6 The trial court's statement on December 22, 1994, that it believed Blight's assertion that her buyers were limited to "people across the street" is totally insupportable given that only two days earlier, it had accepted her pleas of guilty to two counts of fourth degree distribution of marijuana based on her sales of marijuana to Ashworth on September 7 and 21, 1993. Footnote: 7 When explaining on direct and cross-examination how the strongbox got into the file cabinet, Blight stated that she "went in the house and put the box away" after she and defendant had visited a lawyer that morning regarding a "cash deal" involving the purchase of a house. Defendant, however, testified that before going to visit the lawyer, he "handed [the box] to her and asked her to lock it up for me." Footnote: 8 In defendant's supporting brief, defendant's attorney improperly stressed the importance of the penalty to defendant, stating, "In addition, he will lose his driver's license, leaving both him and Mrs. Blight without transportation." (Emphasis added.) We will never know if this had an effect, consciously or otherwise, on the trial court's decision to reverse itself.