On certification to the Superior Court, Appellate Division, whose opinion is reported at 358 N.J. Super. 578 (2003).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
ALBIN, J., writing for the Court.
Shawn L. Spivey was arrested outside his apartment building as police began a search of his apartment and uncovered a sizeable stash of drugs and a loaded gun. The Court must determine whether that evidence was sufficient to convict Spivey on the charge of possession of a firearm "while in the course of" possessing with intent to distribute a controlled dangerous substance within 500 feet of a public park. N.J.S.A. 2C:39-4.1a.
On September 9, 1998, two teams of officers of the Plainfield Police Department executed a no-knock warrant to search the person and home of Spivey. Spivey lived in a second-floor apartment in Plainfield with his wife, co-defendant Niki Harrison, and their two young children. The officers wore windbreaker jackets with the insignia "Police" on the front and back. One team sighted Spivey across the street and immediately moved to secure him while the other team forced its way into the apartment. Spivey resisted as police attempted to detain him, knocking one officer to the ground unconscious. Spivey was arrested, handcuffed, and brought to the apartment.
Inside the apartment, the officers found Harrison in the kitchen and their five-year-old son hiding under a bed in one bedroom. In a search of the apartment, they found a blue bag containing approximately 700 grams of marijuana, a box containing twenty vials of cocaine, $7,000 in cash, and paraphernalia used for measuring and distributing drugs. The officers also retrieved from a kitchen cabinet a.22 caliber revolver loaded with five hollow point bullets. The apartment was located less than 500 feet from a public park.
Spivey and Harrison testified that they had no knowledge that drugs, paraphernalia, and a handgun were in the apartment. They explained that the $7,000 in cash was the proceeds of the sale of several pit bulls. Spivey also claimed that he resisted because he was unaware he was being arrested by police officers, and that police planted the drugs and weapon in retaliation for a prior altercation that Spivey had with a Plainfield police officer.
The jury convicted Spivey of a number of drug-related offenses, including possession of a firearm while in the course of committing a drug offense within 500 feet of a public park, a second-degree offense. Spivey received consecutive sentences on several charges for an aggregate term of thirty-two years with fifteen years of parole ineligibility. Spivey raised a number of issues on appeal, but the Appellate Division found only one to have sufficient merit to warrant discussion - the claim that the trial court erred in denying his motion for a judgment of acquittal on the charge of possession of a firearm while in the course of committing a drug offense within 500 feet of a public park. The Appellate Division panel, in a well-reasoned opinion by Judge Wecker, upheld Spivey's convictions. It found that the State satisfied its burden of proof under N.J.S.A. 2C:39-4.1a by showing that Spivey jointly and constructively possessed both the drugs and the firearm, which were in close proximity to each other. The Supreme Court granted Spivey's petition for certification.
HELD The physical and temporal proximity of the handgun and the drugs permitted the jury to infer that Spivey constructively possessed the weapon with the purpose of protecting himself and the drugs stored throughout the apartment.
1. Spivey argues that to sustain a conviction of possession of a firearm while in the course of committing a drug offense the State must prove that he actually possessed the weapon or constructively possessed it in close physical proximity to his person at the time he committed the predicate drug offense. In support, Spivey notes that N.J.S.A. 2C39-4.1a requires that the person have the firearm "in his possession while in the course of committing, attempting to commit, or conspiring to commit" the drug offense. A person constructively possesses an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence and intends and has the capacity to exercise control or dominion over it during a span of time. A person who leaves an item at home retains constructive possession of it so long as he has the intent and ability to exercise control over it some time in the future. The evidence here permitted the jury to draw the reasonable inference that Spivey had the intention and capacity to exercise dominion over the revolver found in the apartment. (pp. 6-9)
2. Next, the Court must determine whether the evidence supports the jury finding that Spivey possessed the firearm "while in the course of committing" the drug offense. Just as the jury could infer that Spivey possessed the drugs with the intent to distribute, so too the jury could infer that he possessed the gun with the intent to further that criminal scheme. The evidence must permit the jury to infer that the firearm was accessible for use in the commission of the crime. The closer in proximity a firearm is to drugs, the stronger and more natural the inference that the two are related to a common purpose. In this case, the jury could reasonably infer that Spivey possessed the firearm stored in his kitchen cabinet with the purpose of protecting himself and the drugs found throughout the apartment. The physical and temporal proximity of the weapon and the drugs permit that inference. (pp. 9-13)
3. The Supreme Court finds no abuse of discretion in the limitations placed on Spivey's attempts to present evidence of alleged prior police misconduct. Nor was there any error in allowing the State to introduce Spivey's three prior criminal convictions to impeach him. Finally, the trial court did not abuse its discretion in running three sentences consecutive to one another. (pp. 13-20)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, and WALLACE join in JUSTICE ALBIN's opinion. JUSTICES LONG and VERNIERO did not participate.
The opinion of the court was delivered by: ...