State v. Lewis

886 A.2d 643, 185 N.J. 363, 2005 N.J. LEXIS 1494

• Court: Supreme Court of New Jersey
• Decided: December 8, 2005
• Status: Published

Opinions

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.

I.

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 Thomdyke 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(l) 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(l) (count four); third-degree possession of cocaine with intent to distribute, N.J.S.A 2C:35-5a(l) 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, 866 A.2d 985 (2005). We conclude that it can and affirm.

II.

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.

III.

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(l) 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, 842 A.2d 148 (2004). We start by considering the plain language of the statute. State v. Ivory, 124 N.J. 582, 585, 592 A.2d 205 (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, 850 A.2d 1252 (2004). Nevertheless, in interpreting a criminal statute, “whatever be the rule of construction, it is subordinate to the goal of effectuáting the legislative plan as it may be gathered from the enactment Svhen read in the full light of its history, purpose and context.’” State v. Gill, 47 N.J. 441, 444, 221 A.2d 521 (1966) (quoting Lloyd v. Vermeulen, 22 N.J. 200, 204, 125 A.2d 393 (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:l-2c; See also State v. Hill, 155 N.J. 270, 275 n. 2, 714 A.2d 311 (1998); State v. Bridges, 131 N.J. 402, 406-07, 621 A.2d 1 (1993); Ivory, supra, 124 N.J. at 586, 592 A.2d 205 (1991); State v. Maguire, 84 N.J. 508, 514, 423 A.2d 294 (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-l.lc; Bridges, supra, 131 N.J. at 407, 621 A.2d 1; 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 20:37-7 (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.SA 2C:35-7.1a is that anyone violating N.J.SA 20:35-5 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 20:35-5 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 “[possession 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.SA. 2C:2-lc. 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, 844 A.2d 512 (2004).]

Although we have not addressed a ease 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, 592 A.2d 205. 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, 592 A.2d 205. 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, 592 A.2d 205. 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, 592 A.2d 205.]

In Spivey, supra, we addressed the issue of constructive possession in the context of N.J.S.A. 2C:39-Ala, 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, 844 A.2d 512. 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, 844 A.2d 512. 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, 844 A.2d 512. The Appellate Division affirmed his convictions and we granted certification. Id. at 235, 844 A.2d 512.

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, 844 A.2d 512. 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, 844 A.2d 512.]

In the present matter, we reject defendant’s contention that a conviction under N.J.S.A. 20:35-7.1 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, 844 A.2d 512. 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, 844 A.2d 512. 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.