SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1158-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
URIEL ZAPATA,
Defendant-Appellant.
_________________________________________________________________
Submitted November 26, 1996 - Decided February 4, 1997
Before Judges Michels, Muir, Jr. and Kleiner.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County.
Susan L. Reisner, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, of counsel and on the brief).
Charles R. Buckley, Deputy Attorney General-
In Charge, Acting Bergen County Prosecutor,
attorney for respondent (John J. Scaliti,
Special Deputy Attorney General-Acting
Assistant Prosecutor, of counsel and on
the letter brief).
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Following a joint jury trial with co-defendants Fernando Hernandez (Hernandez) and Germon O. Rodriguez (Rodriguez), defendant Uriel Zapata was found guilty of possession of cocaine in a quantity of one-half ounce or more but less than five ounces with intent to distribute, a crime of the second degree, in
violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (First
Count), possession of cocaine with intent to distribute within
1,000 feet of school property, a crime of the third degree, in
violation of N.J.S.A. 2C:35-7 (Second Count), and possession of
cocaine, a crime of the third degree, in violation of N.J.S.A.
2C:35-10a(1) (Third Count).See footnote 1 Defendant's motion for a judgment
of acquittal was denied. The trial court merged defendant's
convictions for possession of cocaine with intent to distribute
within 1,000 feet of school property under the Second Count and
possession of cocaine under the Third Count into his conviction
for possession of cocaine with intent to distribute under the
First Count and committed defendant to the custody of the Commissioner of the Department of Corrections for five years, with a
three-year period of parole ineligibility. In addition, the
trial court imposed a $2,000 Drug Enforcement and Demand Reduction Penalty, a $50 laboratory fee, and a $30 Violent Crimes
Compensation Board penalty and suspended defendant's driver's
license in New Jersey for two years. Defendant appeals.
Following defendant's indictment, he and co-defendants Hernandez and Rodriguez moved to suppress the evidence seized pursuant to a warrantless search of the motor vehicle in which defendant was a passenger. According to the proofs at the
suppression hearing, on April 16, 1991, at approximately 7:15
p.m., Detective Joseph M. Martin of the Englewood Police Department received a dispatch regarding an anonymous call taken by an
Englewood Police Dispatcher. Detective Martin was assigned to
the Neighborhood Stabilization Squad, which dealt primarily with
narcotic enforcement. The dispatch informed Detective Martin
that a few male Hispanics in a tan Chevy were distributing
cocaine in a parking lot at Vinnie's Tavern in Englewood.
Detective Martin was also given the number of the New York
license plate. Upon receiving the dispatch, Detective Martin
responded to the area of Vinnie's Tavern.
While Detective Martin was en route, Detective Edward Murray
radioed that he had left Vinnie's Tavern's parking lot and was
traveling on the street on which the tavern was located. Detective Murray radioed that he was behind a tan Chevy with New York
license plates, which matched the description received from the
dispatcher. Detective Martin soon observed the vehicle. He cut
his vehicle in front of the suspect vehicle and ordered the
driver to pull into a parking space along the street. Detective
Murray's vehicle blocked the rear of the suspect vehicle.
Detectives Murray and Martin ordered the three passengers
to exit the vehicle and directed them to place their hands on the
hood of the vehicle. Hernandez was the driver, defendant was the
front seat passenger, and Rodriguez was the rear seat passenger.
As Rodriguez exited the vehicle, Detective Martin saw a small,
plastic, glassine-type of envelope with a red stripe on it, which
appeared to contain cocaine. The envelope was protruding from
the crease of the rear seat near where Rodriguez had just been
sitting. Based on his experience and training and the information provided by the police dispatcher, Detective Martin suspected that the envelope contained cocaine. He immediately seized
the envelope as evidence.
Detective Martin then arrested defendant and the two co-defendants. Detective Martin did not find any other evidence of
weapons or narcotic paraphernalia. However, he found $1,013.30
in cash on Hernandez, $24.15 in cash on Rodriguez and $136.46 in
cash on defendant. He proceeded to attempt to advise the defendants of their rights verbally, but they claimed that they did
not understand English. Defendant, Hernandez, and Rodriguez were
then transported to Police Headquarters.
Detective Martin further testified that at the time defendant and the two co-defendants were ordered out of the vehicle,
they could not have driven away and they were not free to leave.
Detective Martin also testified that seven-eighths of the envelope was visible on the seat, but one-eighth was hidden in the
back seat crease. Detective Martin impounded the vehicle and
notified the Bergen County Police K-9 Unit because he felt that,
based on the anonymous call, the evidence found, and his experience, more narcotics were in the vehicle. A police dog indicated
that drugs were located in the left vent of the air-conditioning
unit. When the unit was removed, Detective Martin found a brown
paper bag containing a total of thirty-seven plastic bags of
suspected cocaine. Detective Martin testified that he did not
see the brown bag in the air-conditioning unit at the scene and
that he did not find any other evidence when he conducted a
search at the scene.
At the conclusion of the suppression hearing, Judge Minuskin
in the Law Division found that Detectives Martin and Murray,
based upon the anonymous call and the corroborated observation of
the suspect vehicle,
had reasonable and probable cause to stop the
vehicle as authority to be able to investigate and to determine whether or not a crime
was being committed, and upon observing in
connection therewith based upon that which
was said to them the Court believes that they
had the right to order the occupants to exit
suspecting that this vehicle based on an
anonymous tip contained contraband.
The trial court also upheld the seizure of the plastic glassine
envelope, the arrest of defendant and his co-defendants, and the
seizure of the brown bag containing thirty-seven plastic bags of
suspected cocaine hidden in the air-conditioning unit and denied
the motion to suppress.
The facts adduced at the suppression hearing were corroborated at trial. Detective Murray testified that after receiving the dispatch message he observed a Brown Chevy Celebrity with New York plates and three passengers leaving the parking lot of Vinnie's Tavern. The vehicle was registered to Elid Montola of New York City. Efforts to locate Elid Montola were unsuccessful.
Defendant was determined to be a resident of New York City,
Hernandez, a resident of Palisades Park, and Rodriguez, a resident of Englewood.
The substance recovered from the vehicle was determined to
be cocaine, totaling 0.75 ounces (approx. 21 grams) and worth up
to $1,800. Robert Dodd (Dodd), an Investigator with the Bergen
County Narcotic Task Force, testified that the cocaine recovered
was possessed with an intent to distribute. Dodd's opinion was
based on the amount of cocaine found, the way it was packaged,
the New York City registered vehicle, the number of people in the
vehicle and their origins, the lack of drug paraphernalia, and
the amount of money and its denominations.
Detective Murray testified on recross-examination that he
had arrested one of the defendants subsequent to the April 16,
1991 incident. Defense counsel immediately moved for a mistrial.
Having determined that Detective Murray was referring to Hernandez, the trial court granted the motion as to Hernandez, but
denied the motion as to defendant and Rodriguez. The trial court
instructed the jury that Detective Murray had not arrested either
of the other defendants before or after April 16, 1991. He
further instructed the jury that Hernandez's trial had been
severed from the present trial and that Detective Murray's
response should in no way prejudice the two remaining defendants.
Defendant testified that he had attempted to go to the
Columbia Restaurant, in Englewood, but he took the wrong bus from
New York. He was let off in an unfamiliar place and could not
locate the restaurant. According to defendant, he saw Hernandez
drive by and recognized him because he had seen him in New York a
few times. However, defendant had never met nor had he ever
spoken to Hernandez before the day of the arrest. Defendant did
not recognize the vehicle and did not know who owned it. He
asked Hernandez for directions, but instead Hernandez offered to
drive him to the Columbia Restaurant. They drove to the restaurant stopping only at a laundromat where Hernandez dropped off
some clothing. Defendant was about to exit the vehicle when
Rodriguez approached Hernandez and asked him for a ride home.
Defendant had never seen Rodriguez before. Hernandez acquiesced
and asked defendant to ride along, after which they would return
to the Columbia Restaurant to eat together. Shortly after the
three had begun to drive Rodriguez home they were stopped by
Detectives Martin and Murray.
Defendant also testified that he did not see any drugs in
the vehicle, that he did not use any drugs while in the vehicle,
and that he did not sell any drugs while in the vehicle. Defendant had seen Hernandez a few times in front of defendant's place
of work, a mechanic's shop near Broadway. Defendant testified
that he did not know the name of the shop because he was paid in
cash. He also could not recall the address of his place of work
or the first name of his boss.
Rodriguez testified that he went to the Columbia Restaurant
to meet his brother who never showed up. The owner of the
restaurant confirmed that Rodriguez was present the day in
question. As he was leaving the restaurant, he saw Hernandez an
acquaintance, pull into the restaurant. Hernandez asked where
Rodriguez was going and upon being told he was going home,
Hernandez offered him a ride. Shortly after getting into the
vehicle, the police pulled the vehicle over. Rodriguez testified
that he did not own the drugs found in the vehicle, that he did
not know who owned the drugs, and that he could not see the drugs
from his position in the vehicle. Rodriguez further testified
that he had never seen defendant before that day and that he was
not at Vinnie's Tavern, which was a block from the Columbia
Restaurant, the day of the arrest.
At the conclusion of the proofs, the jury found defendant
and Rodriguez guilty of all charges. Defendant's motion for
judgment of acquittal notwithstanding the verdict was denied and
the trial court, after merging defendant's convictions on the
Second and Third Counts into his conviction on the First Count,
sentenced defendant to three years with a three-year period of
parole ineligibility, imposed the mandatory penalties and suspended defendant's driving privileges for two years. This appeal
followed.
Defendant seeks a reversal of his convictions on the following grounds set forth in his brief:
POINT I
THE DEFENDANT'S RIGHT TO BE FREE
FROM UNREASONABLE SEARCHES AND
SEIZURES AS GUARANTEED BY THE
FOURTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ART. I PAR.
7 OF THE NEW JERSEY CONSTITUTION
WAS VIOLATED.
POINT II
THE DEFENDANT'S MOTION FOR JUDGMENT
OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT III
THE VERDICT WAS AGAINST THE WEIGHT
OF THE EVIDENCE (Not Raised Below).
POINT IV
THE DEFENDANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED
BECAUSE OF UNDUE PREJUDICE RESULTING FROM AN OFFICER'S GRATUITOUS
COMMENT ABOUT THE SUBSEQUENT ARREST
OF THE CO-DEFENDANT.
Defendant contends that his right to be free from unreasonable searches and seizures was violated when Detectives Martin
and Murray seized and searched the vehicle in which he was
riding. Defendant, who has standing because he was charged with
a possessory interest in the property seized, State v. Alston,
88 N.J. 211, 228-29 (1981), claims that the State has failed to
prove that the seizure and warrantless searches were lawful and,
therefore, the evidence discovered in the vehicle should have
been suppressed. Defendant argues that the State has failed to
show the initial vehicle seizure was based on reasonable suspicion because the anonymous caller "did not indicate that the
information was based on personal knowledge, the content of the
information was insufficient, and the reliability of the anonymous informer was never established." We disagree.
We are satisfied from our study of the record and arguments
presented that the information supplied to the police by the
anonymous caller was sufficient to establish probable cause to
stop and search the vehicle in which defendant was riding. We,
therefore, affirm the denial of the motion to suppress substantially for the reasons expressed by Judge Minuskin in his oral
opinion of June 11, 1992.
The United States Constitution protects the "right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." U.S.
Const. amend. IV, § 1. See also N.J. Const. art. I, ¶ 7. Thus,
the Fourth Amendment of the United States Constitution does not
forbid all searches and seizures. State v. Bruzzese,
94 N.J. 210, 217, (1983), cert. denied,
465 U.S. 1030,
104 S. Ct. 1295,
79 L. Ed.2d 695 (1984); State v. Anderson,
198 N.J. Super. 340,
348 (App. Div.), certif. denied,
101 N.J. 283 (1985). "Rather,
it only proscribes those that are judicially deemed unreasonable." State v. Anderson, supra, 198 N.J. Super. at 348. See
State v. Bruzzese, supra, 94 N.J. at 217 (citing State v. Campbell,
53 N.J. 230, 233 (1969)). "Indeed the touchstone of the
fourth amendment is reasonableness." State v. Bruzzese, supra,
94 N.J. at 217.
Further, Fourth Amendment issues are complex and are "peculiarly dependent upon the facts involved. Commonly, such constitutional issues involve no more than a seasoned `value judgment
upon a factual complex rather than an evident application of a
precise rule of law.'" State v. Anderson, supra, 198 N.J. Super.
at 348, (citing State v. Funicello,
60 N.J. 60, 72 (Weintraub,
C.J., concurring), cert. denied,
408 U.S. 942,
92 S. Ct. 2849,
33 L. Ed.2d 766 (1972).
The right to be free from unreasonable searches and seizures
includes the right to be free from investigatory vehicle detention "except in those situations in which there is at least
articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either
the vehicle or an occupant is otherwise subject to seizure for
violation of law . . . ." Delaware v. Prouse,
440 U.S. 648, 663,
99 S. Ct. 1391, 1401,
59 L. Ed.2d 660, 673 (1979); State v.
Carpentieri,
82 N.J. 546, 548-49 (1980). In Drake v. County of
Essex,
275 N.J. Super. 585, 589-90 (App. Div. 1994), we explained
the concept of "reasonable suspicion" as follows:
Reasonable suspicion is "considerably less than
proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow,
490 U.S. 1, 7,
109 S. Ct. 1581, 1585,
104 L. Ed.2d 1, 10 (1989); accord
Rawlings v. Police Dep't of Jersey City,
133 N.J. 182,
191,
627 A.2d 602 (1993). In fact, "[r]easonable
suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion
can be established with information that is different
in quantity or content than that required to establish
probable cause, but also in the sense that reasonable
suspicion can arise from information that is less
reliable than that required to show probable cause."
Alabama v. White,
496 U.S. 325, 330
110 S. Ct. 2412,
2416,
110 L. Ed.2d 301, 309 (1990); accord State in
the Interest of H.B.,
75 N.J. 243, 251,
381 A.2d 759
(1977). Moreover, "[t]he concept of reasonable suspicion, like probable cause, is not 'readily, or even
usefully, reduced to a neat set of legal rules.'"
United States v. Sokolow, supra, 490 U.S. at 7, 109 S
Ct. at 1585; 104 L. Ed.
2d at 10 (quoting Illinois v.
Gates,
462 U.S. 213, 232,
103 S. Ct. 2317, 2329, 76 L.
Ed.2d 527, 544 (1983)). Rather, it requires an evaluation of "'the totality of the circumstances-the whole
picture.'" Id. at 8, 109 S. Ct. at 1585, 104 L. Ed.
2d
at 10 (quoting United States v. Cortez,
449 U.S. 411,
417,
101 S. Ct. 690, 695
66 L. Ed.2d 621, 629 (1981)).
Under the totality of the circumstances approach, "information given by an informant whose inherent reliability has not
been shown may nevertheless be used to establish probable cause
to obtain a search warrant if the informant's veracity is bolstered by the totality of the circumstances." State v. Probasco,
220 N.J. Super. 355, 358 (App. Div. 1987). See also United
States v. Reyes,
792 F.2d 536, 538-540 (5th Cir.), cert. denied,
479 U.S. 855,
107 S. Ct. 191,
93 L. Ed.2d 124 (1986); State v.
Foreshaw,
245 N.J. Super. 166, 176-79 (App. Div.), certif.
denied,
126 N.J. 327 (1991). In State v. Probasco, supra, we
explained:
If the observations of police during an investigation may be used to bolster the veracity of an
informant's information offered to establish probable cause to obtain a search warrant, such observations, where the circumstances are exigent, may
similarly be used to bolster the veracity of an
informant's information to establish probable
cause to conduct a warrantless search.
[220 N.J. Super. at 358.]
Similarly, this approach may be utilized to determine
whether reasonable suspicion has been established to justify an
investigatory stop. See Alabama v. White,
496 U.S. 325,
110 S.
Ct. 2412,
110 L. Ed.2d 301 (1990). Thus, contrary to defendant's arguments, the value of and circumstances animating many
anonymous tips cannot be lightly discounted. As the Federal
Court of Appeals for the District of Columbia has observed,
It is well-recognized that citizen informants in narcotic-ridden neighborhoods
want to retain anonymity for fear of retaliation from traffickers. However, the peculiar
nature of narcotics crimes means that arrests
are almost totally dependent on tips and
undercover work; there are no reporting "victims." Therefore, enforcement officials
actively encourage such tips from citizens
who deplore the effects of drug traffic on
their children and their neighborhood. If we
are serious about enforcing drug trafficking
laws, police must have the ability to reasonably follow-up such anonymous tips through
investigation.
[United States v. White,
648 F.2d 29, 43-44
(D.C. Cir.) (footnotes omitted) (emphasis
added), cert. denied,
454 U.S. 924,
102 S.
Ct. 424,
70 L. Ed.2d 233 (1981).]
See also State v. Smith,
291 N.J. Super. 245, 255 (App. Div.
1996).
In sum, an anonymous call may provide the factual predicate
necessary to justify an investigatory stop when there is corroboration of the information furnished. This is not to say, however, that anonymous calls--standing alone--will always provide the
reasonable suspicion necessary to justify an investigatory stop.
That is because "the veracity of persons supplying anonymous tips
is by hypothesis largely unknown, and unknowable." Illinois v.
Gates,
462 U.S. 213, 237,
103 S. Ct. 2317, 2332,
76 L. Ed.2d 527, 548 (1983). Where the reliability of the anonymous tip is
established through independent police work, investigatory stops
are permissible. See e.g. Alabama v. White, supra, (police stop
proper where police had received anonymous tip that defendant
would leave particular apartment at particular time and travel to
particular hotel while in possession of cocaine, which would be
in brown attache case, and police corroborated certain details
provided by tipster); United States v. Walker,
7 F.3d 26 (2nd
Cir. 1993), cert. denied,
510 U.S. 1169,
114 S. Ct. 1201,
127 L.
Ed.2d 549 (1994) (anonymous tip, which provided physical
description of unspecified individual who would be arriving on
unspecified Amtrak train from south and stated he would be
carrying automatic weapons, provided appropriate basis for
investigatory stop in light of police officers' independent
corroboration of significant aspects of tip coupled with fact
that point of departure was known source of contraband); State v.
Thomas,
110 N.J. 673 (1988) (police, who had received anonymous
tip regarding drug distribution in bar by individual wearing
certain clothes, were justified in making investigatory stop of
defendant, as he met description provided and police recognized
him from prior drug arrest); State v. Bynum,
259 N.J. Super. 417
(App. Div. 1992) (police officer, who along with his partner had
been dispatched to train station on receipt of anonymous tip that
Hispanic male arriving on 1:19 p.m. train would be carrying
narcotics, properly stopped black male being chased by officer's
partner).
Armed with these principles, we have no hesitancy in holding
as did the trial court, that the police, based on their independent corroboration of the anonymous caller's information, had an
articulable and reasonable suspicion that the occupants of the
vehicle had been engaged in criminal activity justifying the
investigatory stop. The police observation corroborated the
anonymous caller's information that several Hispanic males were
in a tan Chevy with New York license plates that had been in
Vinnie's Tavern's parking lot. The anonymous caller stated that
these men had been distributing cocaine. In sum, the totality of
the circumstances justified the investigatory stop. Indeed, the
police would have been derelict in their duty had they not
stopped the vehicle. To the extent that State v. Zutic,
294 N.J.
Super. 367 (App. Div. 1996), may be read to support a result
contrary to that reached here, we disagree with it and view this
matter under the totality of the circumstances analysis discussed
above. See State v. Paturzzio,
292 N.J. Super. 542, 549 (App.
Div. 1996).
Since the stop of the vehicle passed constitutional muster,
it follows that the seizure of the cocaine in plain view on the
back seat and the subsequent seizure of the cocaine in the
vehicle's air-conditioning unit were not the "fruits of the
poisonous tree." See State v. Bruzzese, supra, 94 N.J. at 210;
Sibron v. New York,
392 U.S. 40,
88 S. Ct. 1889,
20 L. Ed.2d 917
(1968); Wong Sun v. United States,
371 U.S. 471,
83 S. Ct. 407,
9 L. Ed.2d 441 (1963).
Accordingly, the police conduct challenged here clearly
passed constitutional muster and the trial court properly denied
defendant's motion to suppress the evidence discovered pursuant
to the seizure and warrantless search of the vehicle in which
defendant was a passenger.
We are also satisfied that the trial court did not mistakenly exercise its discretion by denying's defendant's motion for a mistrial and, therefore, did not violate defendant's constitutional right of due process and equal protection of the law. U.S. Const. amend. XIV, § 1; N.J. Const. art. I, ¶ 1, 5.
Defendant made a mistrial motion after Detective Murray testified in response to a question by defense counsel on re-cross examination that since April 16, 1991, he'd "made in excess of 100 or more arrests including one of the people that is on trial today . . . ." After determining that Detective Murray was referring to Hernandez and not defendant or Rodriguez, the trial court granted Hernandez's motion for a mistrial and denied the motion of the others. Defendant argues that the prejudicial comments that justified a mistrial for Hernandez also compromised the integrity of his trial, since he and Hernandez were charged with joint constructive possession of the cocaine in the vehicle.
Decisions to grant or deny motions for mistrial are discretionary decisions. State v. Winter, 96 N.J. 640, 646-47 (1984); State v. DiRienzo, 53 N.J. 360, 383 (1969); Greenberg v. Stanely, 30 N.J. 485, 503 (1959). Such decisions are reviewable only for an abuse of discretion. State v. Winter, supra, 96 N.J. at 647. "Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending
evidence to lead to a verdict that could not otherwise be justly
reached." Ibid. When the alleged error is not of a constitutional nature, it should be disregarded unless clearly capable of
producing an unjust result. Id. at 647-48.
Detective Murray's comment violated the rules of evidence
and was not properly admissible. See N.J.R.E. 404(b); N.J.R.E.
405(a). See also State v.DiFrisco,
137 N.J. 434, 497-98 (1994),
cert. denied, ___ U.S. ___,
116 S. Ct. 949,
133 L. Ed.2d 873
(1996); State v. Neal,
229 N.J. Super. 28, 35-36 (App. Div.
1988). Any prejudice created by the comment was effectively
cured by the trial court's careful and thorough curative instructions to the jury. Thus, giving due deference to the trial
court's decision that the curative instructions would effectively
cure any prejudice suffered by defendant, its decision to deny
defendant's motion for mistrial was not an abuse of discretion.
State v. Winter, supra, 96 N.J. at 647. Given the thoroughness
of the curative instructions, their recital almost immediately
after Detective Murray's comment, and the fact that any prejudice
to defendant was indirect, the offending comment was not of such
capacity that it could have led to a verdict that could have not
been justly reached. In sum, the denial of defendant's motion
for a mistrial was not error clearly capable of producing an
unjust result. Id. at 647-48. See also R. 2:10-2.
Further, the trial court's decision to grant Hernandez's
motion for a mistrial and to deny defendant's motion for a
mistrial did not violate defendant's constitutional right to
equal protection of the law. Equal protection of the law simply
requires that all persons similarly situated be dealt with alike.
It prohibits arbitrary discrimination between persons similarly
circumstanced. Auto-Rite Supply Co. v. Mayor and Tp. Committeemen of Woodbridge Tp.,
41 N.J. Super. 303, 311 (1956), aff'd,
25 N.J. 188 (1957). The trial court specifically informed the jury
that the arrest testified to by Detective Murray referred to
Hernandez, and not to defendant. Because defendant and Hernandez
were not similarly circumstanced, the trial court's decision to
grant Hernandez's motion for a mistrial and to deny defendant's
motion for a mistrial did not violate defendant's right to equal
protection of the law.
We are also satisfied from our study of the record that the evidence was sufficient for a jury to find beyond a reasonable doubt that defendant was guilty of possession of cocaine with intent to distribute under the First Count, possession of cocaine with intent to distribute it within 1,000 feet of school property under the Second Count, and possession of cocaine under the Third Count. The trial court, in denying defendant's motion, focused on the fact that (1) the narcotics found in the air-conditioning unit were in the possession of no occupant more than any other; (2) defendant had two fifty-dollar bills to which the State's expert testified was a common amount which is used to purchase
half-grams of cocaine; and (3) defendant was in close proximity
to the dashboard where the narcotics were found.
The concept of constructive possession was summarized in
State v. Shipp,
216 N.J. Super. 662, 664-65 (App. Div. 1987).
Possession can either be actual or constructive. For constructive possession,
which can be jointly shared by several persons, "[p]hysical or manual control of the
proscribed item is not required as long as
there is an intention to exercise control
over it manifested in circumstances where it
is reasonable to infer that the capacity to
do so exists." State v. Brown,
80 N.J. 587,
597 (1979). Criminal possession 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. Reed,
34 N.J. 554,
557 (1961). As a "general proposition,"
criminal possession may not be inferred from
defendant's mere presence at the location
where the contraband was found. State v.
Brown, supra, 80 N.J. at 593. To justify
such an inference there must be "other circumstances or statements of the defendant
tending to permit such an inference to be
drawn." Ibid. (quoting from the dissenting
opinion in State v. Sapp, 144 N.J. Super.
455, 461 (App. Div. 1975), rev'd on dissenting opinion below,
71 N.J. 476 (1976)). See
also, State v. Rajnai,
132 N.J. Super. 530,
535-36 (App. Div. 1975).
Based on the State's proof and the reasonable inferences to
be drawn therefrom, a reasonable jury could find defendant guilty
beyond a reasonable doubt of constructive possession of the
cocaine found in the vehicle. The fact that other drugs were
discovered hidden in the air-conditioning vent supports the
inference that the narcotics were constructively possessed by all
of the passengers because no one possessed the narcotics more
than any other person. According to expert testimony, the
packaging of the narcotics located in the air conditioning unit,
which was identical to the packaging of the envelope found in the
rear seat, was consistent with an intent to distribute. The
State's expert also testified that the total quantity of drugs
and its packaging supported a theory that each of the occupants
of the vehicle, including defendant, possessed the narcotics.
Though the total quantity of drugs was worth only a maximum of
$1,800, a jury could still reasonably find from the facts and
expert testimony "that the cargo was so valuable that [the
driver] would not have taken on passengers unless they not only
knew it was there but also possessed it." State v. Baker,
228 N.J. Super. 135, 143 (App. Div. 1988). Additionally, although
the single bag of cocaine found in the rear seat was closest to
Rodriguez, it was also within defendant's reach.
Consequently, the trial court properly denied defendant's
motion for a judgment of acquittal at the close of the State's
case. See State v. Reyes,
50 N.J. 454, 458-59 (1967); State v.
Perry,
124 N.J. 128, 180-81 (1991) (Stein, J., concurring in
part, dissenting in part); State v. Gaines,
135 N.J. Super. 240,
247-48 (App. Div. 1975), aff'd o.b.,
75 N.J. 83 (1977). Moreover, the jury verdict finding defendant guilty of all three
counts of the indictment was not a miscarriage of justice under
the law. R. 2:10-1. See State v. Carter,
91 N.J. 86, 96 (1982);
State v. Sims,
65 N.J. 359, 373-74 (1974).
The other issues raised by defendant are without merit and require no further discussion. R. 2:11-3(e)(2).
Accordingly, the judgment of conviction and order for commitment under review are affirmed.
Footnote: 1The trial court granted the motion for a mistrial as to co-defendant Fernando Hernandez. Co-defendant German O. Rodriguez was convicted on the three counts of the indictment.