On certification to the Superior Court, Appellate Division.
(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).
On March 30, 2001, a Camden police officer conducting a surveillance in the area of Thorndyke Avenue and Marlton Pike saw defendant James Lewis converse with a man, walk to a nearby location, retrieve some items from a bag under a log, and exchange the items for money. The officer saw Lewis engage in a similar transaction with a second man. Lewis was arrested. At the stash location, the police found a storage bag containing twenty-three vials of marijuana and two sandwich bags, each bag containing twenty bags of crack cocaine. The area where the officer observed Lewis make his exchanges was within 500 feet of Eutaw Park. The location of the stash of marijuana and cocaine was not within 500 feet of the park.
Lewis was convicted of a number of drug offenses, the most serious of which was second-degree distribution or possession of cocaine with intent to distribute while within 500 feet of a public park. Lewis was sentenced to an extended term of ten years with a four-year parole ineligibility term. The Appellate Division affirmed Lewis's conviction. This Court granted certification.
A person who possesses cocaine with intent to distribute while in, on or within 500 feet of a public park is guilty of a crime of the second degree. The question before the Court is whether a defendant may be lawfully convicted under that statute if the defendant is located in the park zone but the drugs are not.
HELD: A defendant may constructively possess a controlled dangerous substance that is located outside the zone while he is in the zone; the judgment of conviction is affirmed.
1. The applicable portion of N.J.S.A. 2C: 35-5a(1) makes it unlawful for any person knowingly to distribute or to possess or have under his control with the intent to distribute a controlled dangerous substance. The plain meaning of the park zone penal provision, N.J.S.A. 2C: 35-7.1a is that anyone violating N.J.S.A 2C: 35-5 by distributing or possessing with intent to distribute a controlled dangerous substance while in, on or within 500 feet of a public park is guilty of a crime of the second degree. Thus, we must consider N.J.S.A. 2C:35-5 and the law on possession. (pp. 7-9)
2. We reject Lewis's contention that a conviction under N.J.S.A 2C: 35-7.1 only may be sustained if the drugs are actually located within the park zone. The provision's declaration that a person possessing drugs with the intent to distribute while in on, or within a park will be subject to greater punishment demonstrates that the Legislature concentrated on the person's location. The statute does not limit the type of possession -- actual or constructive -- that qualifies, nor does it expressly require that the drugs possessed by defendant be in, on or within 500 feet of the public area. Our jurisprudence recognizes that possession may be actual or constructive. We find nothing in the language or history of the statute that would lead us to conclude that the Legislature sought to limit the statute to actual possession of the drugs in the park zone. A defendant who conducts a portion of a scheme to distribute drugs while in, on, or within 500 feet of a public park violates N.J.S.A. 2C:37-7.1, whether the drugs are actually on the person or are constructively possessed and located outside the park zone. (pp. 13-14)
3. A contrary result would influence drug dealers to distribute controlled dangerous substances within a school or park zone, but to maintain their stash of drugs outside the zone. The Legislature did not intend that type of conduct to escape the harsher penalties for drug activity within park or school zones. (p. 14)
4. The result we reach does not preclude a defendant from alleging that drugs recovered outside the zone lack a sufficient nexus to the zone to constitute a violation. A defendant's constructive possession of a drug must bear some direct relationship to the drug-free zone. Here, the physical and temporal proximity of Lewis's cocaine and marijuana stash were sufficient for the jury to conclude that Lewis constructively possessed the cocaine while in the park. (pp. 15-16)
The judgment of conviction is AFFIRMED.
JUSTICE LaVECCHIA, filing a DISSENTING opinion in which JUSTICE ALBIN joins, would reverse the conviction; an examination of extrinsic sources does not resolve whether the Legislature intended the prosecution of a person who stands within the park zone but possesses drugs located outside the zone to fall within this penal provision; the rule of lenity requires that the ambiguity be resolved in defendant's favor
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI and RIVERA-SOTO join in JUSTICE WALLACE's opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which JUSTICE ALBIN joins.
The opinion of the court was delivered by: Justice Wallace, Jr.
Argued September 12, 2005
A person who possesses cocaine with intent to distribute while in, on, or within 500 feet of a public park is guilty of a crime of the second degree. N.J.S.A. 2C:35-7.1. The question before us is whether a defendant may be lawfully convicted under that statute if he is located in the park zone, but the drugs are not. We hold that a defendant may constructively possess a controlled dangerous substance that is located outside the zone while he is within the zone. We affirm the judgment of conviction.
The State presented evidence demonstrating that on the evening of March 30, 2001, Camden Police Officer Edward Pinero was conducting surveillance in the area of Thorndyke Avenue and Marlton Pike, as a result of complaints about drug activity. Pinero was assigned to observe the area with binoculars while other officers waited nearby to assist him. At approximately 6:45 p.m., Pinero noticed defendant, who walked from Thorndyke Avenue and stood in a well-lit area. Subsequently, a man stopped his vehicle on the street, exited, and approached defendant. After conversing with the man, defendant walked to a nearby location, retrieved a bag from under a log, removed some items from the bag, and returned to the man. Pinero noticed that the man gave defendant money in exchange for items from the bag. After the man drove away, Pinero radioed his backup to detain the suspected buyer, but the police were unsuccessful.
Pinero then observed a second male approach defendant. Defendant again walked to the nearby location, retrieved some items from the same bag, and returned to the waiting customer. After observing the second transaction, Pinero instructed the backup officers to detain defendant and the buyer. As the officers approached and identified themselves, defendant attempted to walk away. While he was walking away, defendant placed his arm around a woman passing by him, and dropped something to the ground. Police Officer Alicea placed defendant under arrest, walked to the area where defendant dropped something, and found three vials of suspected marijuana.
Pinero subsequently investigated the suspected stash location and found a storage bag containing twenty-three vials of marijuana and two clear sandwich bags, each containing twenty heat-sealed bags of suspected crack cocaine. The vials of marijuana found at the stash were identical to the three vials defendant had discarded. The area where Pinero observed defendant exchange a substance for money from the suspected buyer was within 500 feet of Eutaw Park. However, the location of the stash of marijuana and cocaine was not within 500 feet of the park.
At trial, Investigator Pete Slusser testified as an expert in narcotics packaging and distribution. He explained that the area of Marlton Pike and Thorndyke is a drug area. Based on hypothetical questions, he opined that someone conducting sales from a stash location as described in the testimony possessed those drugs for distribution. Additionally, he stated that the possession of forty bags of cocaine and twenty-six vials of marijuana was consistent with an intent to distribute rather than with personal consumption.
At the conclusion of the State's case, defendant moved for an acquittal of second-degree possession with intent to distribute cocaine in a park zone because the evidence established that the cocaine stash was not within 500 feet of a public park. The trial court denied the motion because there was sufficient evidence for the jury to conclude that defendant, who was within 500 feet of Eutaw Park, controlled the drugs located outside of the park zone.
The jury convicted defendant of fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12) (count one); third-degree distribution or possession of marijuana with intent to distribute while within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (count five); and second-degree ...