Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d. Conford, J.A.D. (dissenting, in part).
[42 NJSuper Page 141] Defendant was tried and found guilty in the Municipal Court of Newark on two complaints respectively charging him with unlawful possession of a hypodermic needle adapted for the use of narcotic drugs by subcutaneous injection, in violation of N.J.S. 2 A:170-77.1, and with the unlawful use of "a narcotic drug, to wit heroin," in violation of N.J.S. 2 A:170-8. He was thereupon adjudged and sentenced as a disorderly person. Sentence was suspended on the first charge (the judgment of conviction mentions no term), and the one-year term in the Essex County Penitentiary imposed on the second charge was suspended and defendant placed on probation for one year. He promptly appealed from both convictions to the Essex County Court, which considered the matter de novo on the stenographic record below, R.R. 3:10-10(a). After extended argument the County Court judge concluded that the State had proved defendant's guilt
beyond a reasonable doubt, found him guilty as charged, and imposed the same sentences as had the municipal court.
Defendant now appeals to this court, claiming that the municipal magistrate should have granted his motions for dismissal of the complaints at the end of the State's case and at the conclusion of the entire case; and further, the County Court judge should have dismissed the complaints because the evidence was insufficient to establish guilt beyond a reasonable doubt.
The testimony is soon summarized. On the afternoon of January 22, 1956 Detective Lanno of the Newark Police, went to a flat in Newark where defendant lived with his parents, brother and sister, for the purpose of taking him into custody upon a West Orange burglary warrant. Not finding defendant at home, they proceeded to search the bedroom which he shared with his younger brother. In the clothes closet they found a jacket in the inside pocket of which they discovered a box containing a hypodermic needle, a carbonized spoon, an eyedropper, some cotton, a piece of soft white tissue, and a folded piece of newspaper containing white powder. In the inside pocket was a label with "Campisi, No. 801," and attached to the inside of the right sleeve was a cleaner's ticket with the name "Campisi." The detectives found defendant's father hiding underneath the bed.
Defendant arrived on the scene about an hour later. Asked by Lanno whether the jacket was his, he admitted that it was, but denied owning or knowing anything about the box. The detectives then took Campisi into custody on the burglary charge and brought him to the Newark Police Headquarters. There they turned the coat and box over to Detective Nazareta, a member of the Newark Narcotics Squad, when he arrived at the station soon after. He proceeded to question defendant as to the ownership of the articles. According to Nazareta, Campisi readily admitted they were his. Nazareta further testified he questioned Campisi as to his use of narcotics -- this in the presence of the detectives and Federal Bureau of Narcotics Agent Olivera -- and that he admitted last using
narcotics on January 9 or 10 in his home. However, some time later during the questioning Campisi denied being a user.
Nazareta then stripped defendant and proceeded to examine his body. He found small scabs in back of the upper right arm muscle, indicating subcutaneous injections. He also observed that Campisi exhibited the typical withdrawal symptoms of a narcotics user, characterized in this case as "slight" -- clamminess of the hands, cold perspiration and a sallow complexion. Nazareta described the box as the "complete works" of a narcotics user. In his opinion, Campisi used narcotics, the basis of that opinion being "the reactions that he was showing, and the admission that he made, * * * plus the materials that were found here, which are only utilized by a user of narcotics."
Olivera, the federal agent, arrived at the police station some time after Nazareta had begun questioning Campisi. He testified that he asked defendant if he was a user of narcotics, and Campisi denied he was. Olivera then pointed out to Campisi that he was going through the withdrawal stages and observed his "excessive perspiration, clamminess of the forehead and hands, and a slight twitch of the muscles. You may call it restlessness. And the dilation of the eye pupils." These, he said, were symptoms always present in a narcotics user. He described the symptoms as mild because Campisi was a "skin-user" and not a "main-liner" (a narcotics user who injects the drug directly into the bloodstream through an artery or vein). He said that experience had taught him to differentiate between skin-users and mainliners by the severity of the withdrawal symptoms. Olivera gave it as his opinion, based upon 27 years with the Federal Bureau of Narcotics and hundreds of arrests, as well as the objective symptoms of withdrawal, that Campisi was a narcotics user. He did not examine defendant's body. When he asked Campisi whether the hypodermic kit was his, Campisi answered that he knew nothing about it.
Detective Roberts confirmed Olivera's testimony that defendant had said at police headquarters that he knew nothing
about the box. Neither Roberts nor Detective Lanno was asked whether anything was said to defendant at that time about using narcotics.
The only testimony about the nature of the white powder found in the hypodermic kit was that of Nazareta who said it was "suspected" of being heroin on the basis of a "field test," but that final analysis would come from the chemist to whom the powder was submitted. The chemist did not testify.
Campisi testified briefly after his motion for dismissal of the charges had been denied. He said he had never used narcotics; that the first time he had seen the box was at police headquarters; and that although he at first had admitted the jacket was his, he was not sure if it actually was. He referred to an eye operation undergone some five or six months before, said that he had been nervous all his life, and explained that the scabs on his arm were due to scratching an itch.
There were no other witnesses for the defense. At the close of the case the court denied defendant's motion to dismiss the complaints.
The first main point raised on appeal is that the State failed to prove a prima facie case of possession of the hypodermic needle, or to adduce sufficient evidence to establish possession beyond a reasonable doubt, and therefore the court should have ordered entry of judgment of acquittal at the close of the State's case or at the close of the entire case. R.R. 3:7-6. On a motion for judgment of acquittal the test is whether there is any legally competent evidence before the jury, or a judge sitting without a jury, from which an inference of guilt can logically and legitimately be drawn. State v. Rogers , 19 N.J. 218, 231-232 (1955); State v. McCarthy , 30 N.J. Super. 6, 9-10 (App. Div. 1954). We find no substantial basis for challenging the sufficiency of the evidence to support the charge of possession of the hypodermic needle. The fact that some of the evidence presented by the State may have contradicted other testimony so presented is not a valid reason for granting judgment of
Illegal possession may be constructive, as well as actual. The State need not show that the accused had the illegal drug on his person at the time of arrest, as defendant contends. People v. Martinez , 117 Cal. App. 2 d 701, 256 P. 2 d 1028 (Ct. App. 1953); People v. Torres , 98 Cal. App. 2 d 189, 219 P. 2 d 480 (Ct. App. 1950); 72 C.J.S., Poisons , § 8, p. 182. There is nothing in N.J.S. 2 A:170-77.1 which requires the State to prove that the hypodermic needle was on Campisi's immediate person. Under all the circumstances, the court could legitimately infer that the hypodermic needle was under defendant's intentional control and dominion, and therefore in his possession.
Defendant contends that his alleged admission to the enforcement officers that the box and its contents belonged to him amounts in point of law to a confession to the charge of possessing a hypodermic needle, and since the confession was unsupported by corroboration of the corpus delicti , it could not be considered as evidence against him. A similar argument is made regarding his alleged admission of using narcotics. We pass the question whether the admissions of ownership and use are tantamount to confessions. We observe, however, that no challenge was made to the admissibility of these statements.
The rule applicable to defendant's present contention is set out in State v. Geltzeiler , 101 N.J.L. 415, 416 (E. & A. 1925). It was there held that a conviction based on a confession will not stand unless there is proof of the corpus delicti , and this is so not only in homicide cases but in all criminal cases. However, "full proof of the body of the crime is not required in addition to the confession, but sufficient proof thereof may arise out of the evidence corroborating some fact or facts in the confession itself." And see 7 Wigmore on Evidence (3 d ed. 1940), § 2071, p. 396, and note 3. In the present case there was obvious corroboration of the alleged admission of possession and ownership of the hypodermic equipment in the circumstance that it was
found in defendant's jacket. Although the presence of the equipment in his coat is not in itself conclusive evidence that the box belonged to him, it is at least a circumstance from which an inference of possession could be drawn, and thus there was sufficient corroboration.
Defendant also suggests that the burden was on the State to show that the "confession" was voluntary, and cites State v. Tune , 13 N.J. 203, 215 (1953), as an endorsement of the view that a preliminary finding of voluntariness is essential to a fair trial under the due process requirement of the Fourteenth Amendment. But such requirement presupposes that there has been timely challenge to the admission of the evidence as being involuntary. In the absence of such timely objection, the trial court could properly assume that defendant agreed that the admissions or, as he calls them, confessions, were voluntarily given. The admission of that evidence did not constitute plain error under R.R. 1:5-3(c).
We find no merit in defendant's suggestion that the evidence on which the conviction was based amounted to no more than a scintilla. It was more than that; it was substantial.
Defendant's next principal point is that the State failed to establish by sufficient proof the offense of using narcotics, particularly in view of the alleged error in qualifying Detective Nazareta as an expert on narcotics. What has been said in discussing the charge of possession of a hypodermic needle, regarding the test on a motion for judgment of acquittal and any reliance which the trial court may have placed upon defendant's alleged admission of using narcotics, applies here.
Defendant stresses the fact that the only evidence as to use was Nazareta's testimony that Campisi had admitted taking his last shot on January 9 or 10, and that although Nazareta said Federal Agent Olivera was present at the time, Olivera testified that Campisi denied the use of drugs. Whether the admission was made before Olivera arrived at police headquarters, or was ...