Michels, Morgan and Milmed. Morgan, J.A.D. (dissenting).
[144 NJSuper Page 456] Defendant was charged in a two count indictment with (1) possessing controlled dangerous substances, namely heroin and methadone, contrary to N.J.S.A. 24:21-20 (a)(1), and (2) possessing those substances with intent to distribute contrary to N.J.S.A. 24:21-19 (a)(1). A jury found defendant guilty of possession of heroin and methadone but not guilty of possession with the intent to distribute. Defendant was sentenced to a State Prison term. The sentence was suspended, and he was placed on probation for three years upon condition that he co-operate in a rehabilitation program at the Union County Narcotic Clinic or similar agency as directed by the Union County Probation
Department, remaining in the chosen facility as an in-patient until released by its director. Defendant appeals contending that (1) the trial court erred in denying his motion for judgment of acquittal at the end of the State's case and (2) the verdict was against the weight of the evidence.
The State's proofs established that on February 23, 1973 Plainfield Police Officer Robertson, armed with a search warrant and accompanied by several other Plainfield Police Officers, entered the large three story single family house located at 615 Spooner Avenue in Plainfield. Prior thereto, Officer Robertson conducted a surveillance of the premises as part of his undercover work with the Narcotics Strike Force in Union County. During the course of his surveillance, Robertson observed that the house was occupied by several unrelated persons, noting defendant's presence there on three occasions. Upon entering the officers found Bernard Joseph Casey, Reginald Bland, a.k.a. Reginald Duboise Belton, and Valerie Francine Pollard on the first floor in the dining room which was apparently also used as a bedroom. Defendant was found in the adjoining kitchen which was separated from the dining room by a door found closed at the time of the raid. Georgiana Elaine Van Dyke was found on the second floor landing, and Betty Brown, who apparently owned the house, was found in a bedroom on the second floor. While the raid was being conducted, two known narcotic dealers in Plainfield came to the house, giving rise to a clear inference that the house was used as a distribution center.
Although the search failed to reveal narcotic drugs either on defendant's person or in the kitchen where he was found, quantities of heroin and methadone were found in the dining room. Thirteen glassine envelopes containing heroin were found in a brown bag behind a television set. A Pathmark margarine container filled with methadone was found in open view on top of a dresser. Ms. Pollard was found choking in an attempt to swallow 21 glassine envelopes of heroin,
and Mr. Belton was found with a methadone biscuit in his coat pocket. In addition, the search of the dining room revealed in open view on top of the dresser a black leather change purse containing narcotic paraphernalia such as bottle cap cookers, syringes and strands of wire used to clear hypodermic needles. On the same dresser, and also in open view, were measuring spoons and a strainer used in cutting and measuring narcotics and 37 empty glassine bags used to package narcotics for sale in the street. This open and obvious display of narcotics and narcotic paraphernalia fully supports Robertson's opinion "that anyone residing at this premises had knowledge of what was going on in there."
Defendant contends that there was not sufficient evidence to allow a jury to conclude that he had possession of the heroin and methadone found by the police and that therefore his motion for a judgment of acquittal at the end of the State's case should have been granted. We disagree.
N.J.S.A. 24:21-20 provides that with certain exceptions it is "unlawful for any person, knowingly or intentionally * * * to possess, actually or constructively, a controlled dangerous substance". The unqualified term "possess" as used in this statute signifies an intentional control and dominion of a proscribed narcotic drug accompanied by knowledge of its character. See 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), cert. den. 51 N.J. 582 (1968). See also State v. Humphreys , 54 N.J. 406, 413-414 (1969). Actual physical manual control of the proscribed drug is not required if the intention to exercise dominion and control over it is manifested in circumstances where it is reasonable to infer that the capacity to do so exists. State v. Rajnai , 132 N.J. Super. 530 536 (App. Div. 1975); State v. Bozeyowski , 77 N.J. Super. 49, 51 (App. Div. 1962), cert. den. 374 U.S. 851, 83 S. Ct. 1916, 10 L. Ed. 2d 1071 (1963); State v. Brown , 67 N.J. Super. 450, 455 (App. Div. 1961); State v. Campisi , 42 N.J. Super. 138, 145 (App. Div. 1956), rev'd on other
grounds 23 N.J. 513 (1957). Moreover, possession need not be exclusive but may be jointly exercised by two or more persons. State v. Rajnai, supra; State v. Puckett , 67 N.J. Super. 365, 376 (App. Div. 1960), aff'd 34 N.J. 574 (1961). See also 28 C.J.S. Drugs and Narcotics Supplement § 209, at 308-311.
The standard to be applied in determining a motion for judgment of acquittal under R. 3:18-1 at the conclusion of the State's case is set forth in State v. Reyes , 50 N.J. 454 (1967), as follows:
[T]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. R.R. 3:7-6. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably ...