On appeal from Superior Court, Law Division, Bergen County.
Pressler, Shebell and Skillman. Shebell, J.A.D., Dissenting.
[265 NJSuper Page 519] Defendants Arturo Whyte, Fitz Byfield and Barrington Aird were jointly tried and all were convicted of charges of possession of cocaine, N.J.S.A. 2C:35-10a(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The conviction of each for possession of cocaine was merged into his conviction for possession with intent to distribute, and on that conviction, Aird was sentenced to a a term of seven years subject to two and one-third years of parole ineligibility, Whyte to a term of eight years subject to two and two-thirds years of parole ineligibility, and Byfield to a term of ten years subject to three and one-third years
of parole ineligibility. Each was also sentenced to a concurrent three year term on the weapons conviction, and statutory D.E.D.R. penalties were imposed on each. Each filed a separate notice of appeal. We consolidate the appeals for purposes of this opinion.
All the convictions here were based on a constructive possession theory. These three defendants had been passengers in a vehicle being driven by codefendant Aburshar Abtar*fn1 when it was stopped for a moving traffic violation on Route 80 in Hackensack. The handgun and cocaine, which had been concealed in the van, were discovered by the officer during a roadside search. The primary issue on these appeals is whether the State's proofs were adequate to permit the jury to infer, beyond a reasonable doubt, that these three defendants were aware of the presence of the contraband in the vehicle in which they were passengers and that they had "an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." State v. Brown, 80 N.J. 587, 597, 404 A.2d 1111 (1979). Our careful review of this record satisfies us that the State's proofs were insufficient to warrant a constructive possession finding beyond a reasonable doubt. Hence we conclude that the trial Judge erred in denying defendants' motions for acquittal made under both R. 3:18-1 and 3:18-2.
The State's key witness was State Trooper Kevin Tormey who had made the initial stop of the vehicle, a custom van, and had then searched it. None of the back-up officers who were summoned to the scene testified. Tormey explained that he had stopped the vehicle because he had observed it cutting off another vehicle in a dangerous manner. He pulled his own vehicle behind the van and as he exited, he saw the driver of the van, later ascertained to be Abtar, approaching him. He instructed the driver to return to the front of the van, where their further
conversation took place. Upon being asked for his credentials and looking through his wallet, Abtar told the officer that he did not have a license and that the registration was in the car. The officer, observing Abtar's extreme nervousness and his evident desire to get back into the van, patted him down for weapons. During the pat-down, Abtar placed his hand in one of his pockets, apparently balling it into a fist. The officer instructed him to release whatever it was in the pocket which he had grabbed. A brief struggle ensued. At that point, the front passenger door of the van opened. Abtar then pulled away from the officer, ran around the front of the van to the open door, and dove to the floor, placing his hand underneath the seat. The officer, fearing that Abtar was either reaching for or concealing a weapon, drew his own weapon, ordered all four out of the van, and radioed for backup.
Each of the four occupants was patted down. None had any weapon on his person, and a later search of their persons after their arrest also disclosed no contraband. Officer Tormey, looking into the van to see if Abtar had placed anything in the floor when he dove into it, found four marijuana cigarettes in that location. At that point, he obtained both Abtar and Byfield's written consent to search the van.
The van had been specially outfitted. There were two captain's chairs in front and two more captain's chairs immediately behind them. Several feet behind the second row of captain's chairs was a bench seat with a raised back. Behind the bench seat were the rear doors of the van, which opened outward. Defendant Byfield had been sitting in the front passenger chair. Defendants Whyte and Aird had been sitting in the second row of captain's chairs, Whyte behind Byfield and Aird behind Abtar.
A search of the van revealed a plastic bag containing seven and three-quarter ounces of cocaine which had been concealed within the upholstery at the back of the rear left captain's chair. As we understand Trooper Tormey's description, there was an ashtray built into the rear of the seat for the convenience, apparently, of
persons who might be seated in the bench seat. The cocaine was stuffed into the seat behind the ashtray. A further search revealed two rolled-up brown paper bags between the rear of the bench seat and the rear doors. One bag contained a semiautomatic pistol and ammunition for it. The other contained drug paraphernalia, including plastic bags and razor blades. Although the two brown bags were concealed from ...