On appeal from the Superior Court, Law Division, Salem County.
Morton I. Greenberg and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
[205 NJSuper Page 257] A two-count indictment was returned in Salem County charging defendant, Jose F. Palacio, and Juan G. Londono, with possession of a controlled dangerous substance, cocaine, contrary to the provisions of N.J.S.A. 24:21-20(a)(1) (count one) and possession of a controlled dangerous substance, cocaine, with intent to distribute, contrary to the provisions of N.J.S.A. 24:21-19(a)(1) (count two). Defendant's case was severed for trial from that against Londono and at a jury trial defendant
was found guilty on both counts of the indictment. Subsequently defendant successfully moved for a judgment of acquittal. The State appeals from the order granting this acquittal. See R. 2:3-1(b).
The germane facts of the case are as follows. On July 26, 1984 at about 7:20 p.m., State Trooper Andrew Mastella stopped a vehicle driven by Londono for speeding on U.S. Route 40 in Pennsville Township, New Jersey. Defendant was a passenger in the Londono car seated in the front right seat. The trooper spoke to Londono in English and Londono responded in that language. Mastella asked Londono to produce his license and registration and when Londono pulled his license from his wallet Mastella saw what appeared to be a drug transaction slip in the wallet. Mastella ascertained that Londono was from Greenville, South Carolina.
Mastella in English asked defendant for some identification prompting defendant to hand him a Florida driver's license correctly identifying him as Jose F. Palacio. After Londono and defendant got out of the vehicle Mastella attempted unsuccessfully to question them regarding the alleged drug transaction slip. Both appeared to Mastella to be "overly nervous," and defendant, who was sweating and walking in circles, turned away from the officer when questioned.
After two other officers stopped to assist Mastella, Londono signed a consent to search form. Londono and defendant were then directed to sit on the guard rail in front of the car. It was apparent to the officers that defendant by complying with the direction demonstrated he had some command of English.
Officer Mastella conducted a search of the vehicle in the course of which he found 15 pounds of what he thought was cocaine secreted in a compartment behind the back of the rear seat. During the search defendant and Londono exhibited extreme interest in what Mastella was doing and spoke to each other in Spanish. Police laboratory tests confirmed that the
substance seized was cocaine. There was testimony establishing the obvious fact that the large quantity of cocaine was indicative of possession for purposes of distribution. The street value of the cocaine was approximately $960,000 or more.
Following the return of the verdict defendant made the motion for an acquittal notwithstanding the verdict. In granting the motion the judge reasoned that the State had not established the nature of defendant's relationship to Londono nor did it show how long defendant had been in the car or whether he knew of the presence of the cocaine. The judge further pointed out that the cocaine was not observable by a passenger. Thus in the judge's view the State had established nothing more than defendant's presence at the scene of the offense, an inadequate basis on which to predicate a conviction. Accordingly the judge entered an order of acquittal and this appeal followed.
The substantive principles in possession of contraband cases were set forth by the Supreme Court in State v. Brown, 80 N.J. 587 (1979). There the court reiterated the rule of State v. Sapp, 71 N.J. 476 (1976), rev'g on dissenting opinion 144 N.J. Super. 455, 460 (App.Div.1975), that when a defendant is one of several persons found on premises where illicit drugs are discovered it may not be inferred he knew of the presence of or had control of the drugs unless there are other circumstances or statements of the defendant tending to permit such an inference to be drawn. 80 N.J. at 593-594. The court also said that possession may be constructive rather than actual and it stated physical or manual control of the proscribed item is not required as long as the defendant has an intention to exercise control over it manifested in circumstances ...