Matthews, Fritz and Botter. The opinion of the court was delivered by Botter, J.A.D.
Defendants Rajnai and Holt were convicted in a jury trial of possession of a controlled dangerous substance, heroin, in violation of N.J.S.A. 24:21-20(a)(1). Both were given suspended indeterminate sentences to "Yardville," and probation terms of five years and three years, respectively, were imposed. Each defendant has appealed and, with leave of court, has filed a separate brief urging various grounds for reversal of their convictions.
There was evidence from which the jury could find the following facts supportive of the convictions. Patrolman Warn approached a Volkswagen owned by defendant Rajnai which was in the parking lot of an apartment house. He observed Rajnai in the driver's seat, Holt in the rear behind the passenger's seat and two other passengers, one in the front and one in the rear. All had previously been in Holt's apartment. When the occupants were ordered out of the car the officer observed Holt reach down and throw something under an adjacent car, later identified as a package containing ten glassine packets of heroin, three syringes, some needles, a bottle cap and a piece of moist cotton. In the back seat of the car the officer found an envelope containing white powder which proved to be heroin and a wad of tissue soaked in alcohol. He also observed that a section of the floor boards in the rear of the vehicle was missing, leaving a hole approximately 7 x 14 inches.
Defendant Rajnai argues that the court erred in failing to grant his motion for judgment of acquittal at the close of the case and that the finding of guilt as to him was contrary to the weight of the evidence. We reject both of these contentions. Considering all the circumstances there was sufficient evidence for the jury to determine beyond a reasonable doubt that defendant Rajnai unlawfully possessed heroin in his vehicle on the night in question. N.J.S.A. 24:21-20(a)(1) makes it a crime to possess "actually or constructively" a controlled dangerous substance, such as heroin, unless otherwise authorized by law. One who intends
to exercise control and dominion over an object, knowing its character, is said to be in possession of that object. State v. Reed, 34 N.J. 554, 557 (1961); State v. Labato, 7 N.J. 137, 148 (1951); State v. Reyes, 98 N.J. Super. 506, 512 (App. Div. 1968), certif. den. 51 N.J. 582 (1968). Actual physical, manual possession is not required if the intention to exercise such dominion and control over the object is manifest, in circumstances where it is reasonable to infer that the capacity to do so exists. State v. Reyes, supra; State v. Brown, 67 N.J. Super. 450, 454-455 (App. Div. 1961). Possession need not be exclusive but may be jointly exercised by two or more persons. State v. Puckett, 67 N.J. Super. 365, 376 (App. Div. 1960), aff'd 34 N.J. 574 (1961). Proof of possession may be by circumstantial evidence as well as direct evidence. See State v. Humphreys, 54 N.J. 406, 413-414 (1969); State v. Reyes, supra.
In State v. Humphreys, supra, the court held that evidence was sufficient to support a conviction of a defendant for unlawful possession of a gun when defendant was in the front seat of a car and a revolver was found wedged between the cushions of the back seat. The court observed that the gun was "within the zone of Humphreys' knowledge and control," and the jury could find an intention to exercise dominion over it. For similar reasons in the case at hand we find sufficient evidence to sustain the verdict. Cf. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Therefore, denial of defendant's motion for judgment of acquittal was correct. State v. Reyes, 50 N.J. 454, 458-459 (1967). We also reject Holt's contention that the verdict as to him was against the weight of the evidence. He was in the back seat where an envelope containing heroin was found, and the jury could have concluded that he was the one who threw away the package of heroin and paraphernalia.
Defendants Rajnai and Holt also contend that sufficient proof of the chain of possession was not established to support the admission into evidence of Exhibit S-3, the white envelope containing heroin. Although S-3 was not
produced with the other seized contraband on the first day of the trial, it was found at police headquarters and produced the following day when it was identified and its earlier absence explained. The trial judge was correct in admitting this evidence. The sufficiency of the foundation for the offer of an exhibit is left to the discretion of the trial judge. State v. Brown, 99 N.J. Super. 22, 27 (App. Div. 1968), certif. den. 51 N.J. 468 (1968) Clearly there was no abuse of discretion here.
We find no error, also, in the admission of the syringes and bottle cap (a cooker) which had been discarded by the rear seat passenger, allegedly Holt. This narcotic paraphernalia was relevant to show intent and knowledge with respect to the possession of the heroin, at least as to the defendant Holt. It was circumstantial evidence applicable to both defendants and was part of the res gestae in that the possession of the paraphernalia was simultaneous with that of the heroin. Evid. R. 55; State v. Campisi, 47 N.J. Super. 455 (App. Div. 1957), certif. den. 26 N.J. 304 (1958). See also State v. Williams, 110 N.J. Super. 64 (App. Div. 1969), aff'd o.b. 56 N.J. 53 (1970); State v. Smith, 84 N.J. Super. 452, 460 (App. Div. 1964), certif. den. 43 N.J. 270 (1964). Although evidence of "other crimes" may have some potential for prejudice, in the case at hand we find no abuse of the trial court's discretion in refusing to exclude this evidence under Evid. R. 4.
Normally, a limiting instruction should be given by the trial judge sua sponte when "other crime" evidence is admitted so that the jury will not give it greater scope than is justified. Evid. R. 6; State v. Lair, 62 N.J. 388 (1973); State v. Campisi, supra, 47 N.J. Super. at 458-460. No request for such an instruction was made at trial. Accordingly, the error will be disregarded unless it can be shown that it was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 335-338 (1971). ...