On appeal from Superior Court, Law Division, Bergen County.
Before Judges Skillman, Kestin and Wefing.
The opinion of the court was delivered by
Defendant appeals from his convictions for first degree possession of cocaine with intent to distribute and third degree possession. Our review of the record and the arguments advanced discloses that the State's proofs were inadequate to establish defendant's constructive possession of the drugs. Defendant's R. 3:18-1 motion for a judgment of acquital should, therefore, have been granted. His convictions must, accordingly, be reversed.
This defendant was the front seat passenger in an automobile under the hood of which the police found a white plastic bag containing a brick of cocaine weighing more than 500 grams (17.7 ounces). The car had been stopped for exceeding the speed limit and another motor vehicle infraction. The police saw the plastic bag through the hood vent after discovering, in plain view when the glove compartment was opened by the driver, a box containing
a scale with apparent drug residue in its bowl. The box had a label reading "twin beam gram scale".
We have today affirmed the codefendant's convictions because the circumstances placed him, as the driver in control of the car, in actual possession of the cocaine; and established facts from which a jury might fairly infer knowing possession, as the jury in this case did. State v. Binns, 222 N.J. Super. 583, 537 A.2d 764 (App. Div.), certif. denied, 111 N.J. 624 (1988).
This defendant was in an entirely different position, however. The fact that he was the front seat passenger was, by itself, insufficient to establish any fair inference of intentional dominion and control. Few other facts were shown by the State's proofs that had any capacity to establish a direct connection between this defendant and the cocaine. All that remained on the level of defendant's personal involvement with the drugs were the implications which arose from defendant having become nervous, agitated, shaking and upset when one of the state troopers discovered the bag of apparent cocaine under the hood, and from the discovery of $678 in cash on his person at the time of arrest.
A defendant's mere presence at a location where illicit drugs are discovered does not permit an inference that he knew of and had control over the drugs so as to be guilty of possession. State v. Brown, 80 N.J. 587, 593, 404 A.2d 1111 (1979). Nevertheless, other attendant circumstances or statements of the defendant may permit such an inference to be drawn when considered together with his presence. State v. Palacio, 111 N.J. 543, 550-52, 545 A.2d 764 (1988). Such matters are fact-sensitive, Id. at 557 (Stein, J., Dissenting), and require close analysis.
The facts in this case are a far cry from those in Palacio, supra, on the basis of which five members of the Supreme Court concluded that sufficient facts existed to support a finding of constructive possession based on an inference of knowing possession. The defendant there did not respond to a question ...