*1 testimony. weight assign much to his when it decides how Zargha- Dr. alleged do not render appeal, the inconsistencies this therefore, testimony, improp- His was opinion inadmissible. mi’s erly excluded.
IV. stated, judgments trial For the reasons we reverse and remand to the trial court Appellate and the Division court complaint. reinstatement PORITZ and remandment—Chief Justice
For reversal and ALBIN, LaVECCHIA, ZAZZALI, LONG, WALLACE Justices and RIVERA-SOTO—7.
Opposed—None.
Justice JR. delivered the *3 possesses with intent to distribute while A who cocaine in, on, a of a of crime or within 500 feet question us is degree. 2C:35-7.1. The before second lawfully convicted under that statute whether a defendant not. hold if located in the but the are We he is danger- may constructively possess a controlled that a defendant the zone while he is within that is located outside ous substance judgment affirm of conviction. the zone. We
I. demonstrating presented that on the eve- The State evidence 30,2001, ning Police Edward Pinero was of March Camden Officer Thomdyke conducting in Avenue and surveillance the area Pike, activity. complaints as a result of about Marlton binoculars while assigned to observe the area with Pinero was nearby approximately him. At 6:45 officers waited to assist other defendant, Thorndyke Ave- p.m., who walked from Pinero noticed Subsequently, stopped a man his and in a well-lit area. nue stood street, exited, After approached defendant. vehicle on the and location, nearby man, conversing walked to a with the defendant bag log, from removed some items from the retrieved under bag, gave and returned to the man. Pinero noticed that the man money exchange bag. for items from After defendant away, backup suspect- man drove Pinero radioed his to detain the buyer, police ed but the were unsuccessful. approach
Pinero then observed second male defendant. De- location, again nearby fendant walked to the retrieved some items bag, waiting from the same and returned to the customer. After transaction, observing backup the second Pinero instructed the buyer. to detain officers defendant As the officers themselves, approached attempted and identified defendant away. walking away, placed walk he was his arm While him, passing by dropped something around a woman to the arrest, ground. placed Police Officer Alicea defendant under dropped something, walked to the area where defendant suspected marijuana. found three vials of investigated subsequently suspected Pinero stash location storage bag containing twenty-three marijua- and found vials of bags, containing twenty na and two clear sandwich each heat- bags suspected marijuana sealed crack cocaine. The vials of found at the stash were identical to the three vials defendant had exchange discarded. The area where Pinero observed defendant money suspected buyer substance for from the was within 500 feet However, marijuana of Eutaw Park. the location of the stash park. and cocaine was not within 500 feet of the trial, Investigator expert At Pete Slusser testified as an packaging explained narcotics and distribution. He that the area *4 Thorndyke hypo- of Marlton Pike and is a area. Based on questions, opined conducting thetical he someone sales from a testimony possessed drugs stash location as described in the those Additionally, for possession distribution. he stated that the forty bags twenty-six marijuana of cocaine and vials of was personal consistent an with intent to distribute rather than with consumption. case,
At the conclusion of the State’s for an moved acquittal second-degree possession with intent to distribute park cocaine in a zone because the evidence established that the public cocaine stash park. was not within 500 feet of a trial The court denied the motion because there was sufficient evidence for jury defendant, to conclude that who was within 500 feet of Park, drugs Eutaw park controlled the located outside of the zone. jury fourth-degree possession The convicted defendant of marijuana distribute, 2C:35-5a(l) b(12) with intent to N.J.S.A (count one); third-degree possession marijuana distribution with intent to public park, distribute while within 500 feet of a (count three); third-degree possession N.J.S.A. 2C:35-7.1 of co- 2C:35-10a(l) caine, (count four); third-degree possession 2C:35-5a(l) distribute, b(3) of cocaine with intent to N.J.S.A (count five); second-degree possession distribution or of co- with caine intent to distribute while within 500 feet of a (count seven). park, N.J.S.A 2C:35-7.1 sentencing, At granted the trial court the State’s motion to impose an persistent extended sentence because defendant awas consent, prosecutor’s merged offender. With the the court second-degree park convictions into the imposed zone offense and years four-year period an extended term of ten parole with ineligibility. arguments appeal. Appellate
Defendant raised four arguments Division found those to be without merit and affirmed. addressing defendant’s claim that the zone statute re- quires proof possession of actual of the within the panel held that both constructive and actual were adequate purposes for panel of N.J.S.A 2C:35-7.1. The concluded jury’s finding constructively possessed that defendant cocaine located outside of the zone while he was within the zone was sufficient to find him zone offense. certification, granted petition We defendant’s limited to the issue of “whether defendant’s conviction under N.J.S.A. 2C:35- 7.1a can be based on a constructive located *5 place.” drug transaction took public park in which the outside that it can and conclude A.2d 985 We affirm.
II. express language of N.J.S.A. that contends under Defendant 2C:35-7.1, to distrib- possession with intent cannot be he was not located park zone the cocaine cocaine within a because ute supports law his argues that our case that zone. He location culpability is the factor position that the determinative urges that person. He drugs, not the location of statute, N.J.S.A. enacting in the school zone Legislative intent 2C:35-7.1, statute, 2C:35-7, was zone areas, and, therefore, drug-free around certain create zones only drugs are apply when the statutes intended those zones. physically located within language of the statute responds that the clear The State impose crim- Legislature intended to added that the demonstrates located the zone responsibility on a defendant who is inal Simply intent to distribute. possesses distributes or cocaine with that focuses on the location put, the State contends the statute defendant, drugs. that the statute not The State notes type possession—actual or constructive—that limits the neither physically in the require it that the qualifies, nor does Moreover, argues although our Su- the State zone. relevant, drug’s it has explained location is preme has Court relevant. the location of the defendant is less never held Further, recognizes defendant’s State relationship to and not be so some direct must bear fairly said to any such that a cannot be divorced of nexus violated the statute. have
III. legislative contend that the Both defendant and the State posi supports respective 2C:35-7.1 their intent behind N.J.S.A part: provides pertinent N.J.S.A 2C:35-7.1a tions. distributing, dispensing who violates subsection a. of Any person N.J.S. 2C:35-5 by possessing or with intent distribute controlled substance con- analog trolled substance while in, or within 500 the real property feet of *6 comprising housing building public or a is facility, public of a park, public degree, of degree crime the second it is a crime of except the third if the marijuana. violation involved less than one of ounce added).] (emphasis [ 2C:35-5a(l) applicable portion
The of N.J.S.A. makes it unlawful any person knowingly for purposely manufacture, “[t]o distrib- dispense, ute or possess or to or have under his control with intent manufacture, dispense, distribute or dangerous controlled substance or analog.” controlled substance goal
Our
in construing a statute “is to discern and
Legislature’s
Brannon,
effectuate the
intent.” State v.
178 N.J.
500, 505,
(2004).
842 A.2d
by
148
considering
plain
We start
the
language
582,
of the
Ivory,
585,
statute. State v.
124 N.J.
(1991).
A
clear,
.2d205
language
If the
interpret
is
we
the statute
plain
consistent
meaning.
with its
meaning
Ibid. If the
of the text
ambiguous,
is
we
construe
criminal
in
favor of the
Reiner,
307, 311,
defendant. State v.
180 N.J.
The Code of Criminal Justice
declares that “when
language
provision]
susceptible
differing
[of
is
construc-
tion it shall
interpreted
general
purposes
further the
stated
special
this section and
purposes
particular provision
2C:l-2c;
Hill,
involved.”
270,
N.J.S.A
See also State v.
155 N.J.
2,
(1998);
275 n.
Bridges,
402,
A.2d 311
State v.
131 N.J.
406-
07,
(1993);
In Act of Reform provide ... strict declared its “intention incapacitation culpable punishment, deterrence and most drug stating also the policy is “[i]t and offenders” special protection perils to children from this State to afford 2C:35-l.lc; Bridges, drug trafficking____” supra, 131 N.J.S.A 1; Commentary Compre to the N.J. 621 A.2d see Official (Laws 106), Drug Chapter 9 Crim. Just. hensive Act Reform 1987) (Fall (“It Q. 149,157 drug upon thus is incumbent traffickers parks] proximity public to ascertain their to schools [and operations illegal specially from remove their activities these areas____”). (school protected purpose 20:37-7 N.J.S.A zone) zone) (public essentially and N.J.S.A. 2C:35-7.1a those, children, in protect predominantly around same: parks exposure drug schools and from to the culture and perils trafficking. purpose, furtherance of that *7 Legislature punishment possess mandated for those who or severe drugs safety by in the zones statutes. distribute established those anyone plain meaning The of N.J.SA 2C:35-7.1a is that violat- ing distributing by “possessing or N.J.SA 20:35-5 with intent to dangerous distribute a controlled substance or controlled sub- in, analog public park while on or within 500 of a stance feet” Thus, degree. of a crime second N.J.S.A. 2C:35-7.1a. possession. we must consider N.J.S.A 2C:35-5 and the law on manufacture, it unlawful N.J.S.A 20:35-5 makes distribute “[t]o possess dispense, or or to or have under his control with intent to manufacture, dispense, a distribute or controlled sub- analog.” or controlled that stance substance The Code declares act, section, “[possession meaning is an within the of this if the knowingly procured possessor thing possessed or or received the period was aware of his control thereof for a sufficient have possession.” been his able terminate N.J.SA. 2C:2-lc. Re- cently, we stated object
an v. actually Schmidt, or State 110 N.J. constructively possessed. (1988); A.2d v. 258, 270, 1256, Stewart, 596, 540 1262 State 96 N.J. 477 A.2d 603, (1984). object A 300, 303-04 an when he has or person actually possesses physical
371
manual control of it.
v. Brown,
587,
State
404 A.2d
1116
597,
1111,
object
although
A
an
he lacks
or
possesses
when,
person constructively
“physical
manual
a
control,” the circumstances
reasonable inference that
has
he
permit
knowledge of its
and intends and has the
to exercise
presence,
capacity
physical
during
control or dominion
it
a
Schmidt,
over
of time.
110 N.J. at
span
supra,
270,
at
540 A.2d
1262.
(2004).]
[State v.
179
N.J.
reduce around schools. [Id. 205.] 592 594-95, at A.2d posses supra, the constructive Spivey, addressed issue of we 2C:39-Ala, penalizes the in which
sion
the context of
committing certain
a
while in the course of
possession of
firearm
offenses,
possession
a
drug
such as
with intent
distribute
within 500 feet
a
zone.
controlled
substance
239,
The
arrested
at
Before the defendant the State failed constructively possessed it in “actually possessed weapon he or proximity physical close to his the time he committed drug predicate stating person may offense.” Ibid. After physical possession object, of an we sufficient have actual found jury constructively evidence for the to find that the defendant Next, possessed drugs. firearm and Id. at A.2d 512. adequate support we whether the evidence was considered jury finding possessed firearm in the defendant “while committing” light course of in offense the defendant’s was, apartment. his it arrest outside Ibid. We concluded declar- ing that suggest language [t]he does not must be in close statutory weapon violation of Had to defendant to constitute a N.J.S.A 2C:39-4.1a. proximity committing” “armed with a firearm while the course of a specified read different____The might language “while course crime, the outcome in the committing’ suggest, does link between the however, temporal spatial distribute____ drugs that intended of the firearm and the drugs, stronger a firearm is to and more natural closer proximity that the two related to a common inference are purpose.
373 [Id 239-40, 512.] 844A.2d matter, present reject
In the we defendant’s contention a only may conviction under N.J.S.A. if 20:35-7.1 be sustained the drugs actually park are located within the do read zone. We not Legislature the statute to be so limited. The did not restrict the physically reach of the to who possess drugs those the plain within the language zone. The in- N.J.S.A. 3C:35-7.1 any in, person structs that who violates N.J.S.A on 2C:35-5 “while park or within 500 of public second-degree feet” a a is, person crime. That possessing drugs declaration that a in, with “while on park distribute or within” a zone subject greater will punishment demonstrates that Legislature person’s concentrated location.
Moreover, the not type possession— statute does limit the actual or qualifies, expressly require constructive—that nor does it drugs in, possessed by on, that the defendant be or within 500 feet public jurisprudence Our recognizes area. Spivey, supra, be actual or constructive. N.J. at nothing plain history A.2d 512. We find language or the the statute that Legislature would lead us to conclude that the sought to limit the actual drugs statute to park a zone. We conclude that defendant who portion conducts a in, on, drugs of a scheme distribute while within 500 feet a 2C:37-7.1, park drugs violates N.J.S.A. whether the are actually possessed drugs constructively on the or the are possessed park and located outside the zone. view, contrary our result would influence dealers park
distribute controlled substances within school or to maintain drugs but their stash of outside the zone. Surely, type did not intend that of conduct to escape penalties drug activity park the harsher zone or a school zone. concedes, agree,
The State and we that the result we reach does preclude not alleging defendant from that the recovered outside the zone lacked a sufficient nexus to the zone to must pursuant to 2C:35-7.1a. There a violation N.J.S.A constitute permit zone to connection between be some constructively possessed the that defendant reasonable inference *10 drug-free the zone. drugs distribute them within with intent to drugs, although by the location of the a is not limited Such nexus stronger drugs closer the to be the the be drawn inference 237-40, supra, N.J. at 844 A.2d Spivey, to zone. are See event, drug any possession of a defendant’s constructive 512. relationship drug-free and not to the zone must some direct bear fairly he said to any nexus that or she cannot be so divorced 2C:35-7.1. have violated N.J.S.A. constructively drugs in possess his example, person
For could However, goes public park away. if he to a or apartment one mile exercise, an connection there is not obvious a school zone to drugs apartment in his of the between the constructive hand, zone. the nexus presence within the other and his On attempts or sell conspires if distribute exists the defendant zone, drugs if the are not within the zone even delivery is outside the zone. intended defendant, occasions, Here, met that two there was evidence zone, his location purchaser park in the walked to stash with zone, complete the transaction. The outside the and returned unknown, while in drug kind of in the first transaction was sold marijuana. drug The evidence the second transaction the was nearby marijuana and cocaine stash contained both that, depending on the supported the reasonable inference by buyer, to distribute cocaine requested defendant intended marijuana park zone. within the Investiga- Further, testimony presented expert State conducting sales from a stash of the tor Slusser that someone drugs for distribution. quantity possessed in this matter those physical temporal proximity of cocaine and The defendant’s marijuana jury sufficient for the to conclude that stash were park constructively in the possessed the cocaine while defendant, Therefore, drugs in who sold zone. we conclude park zone from stash located outside that N.J.S.A. violated 2C:37-7.1a. judgment Appellate
We affirm the Division. LaVECCHIA, dissenting. Justice charged Defendant with with was distribute “in, a controlled substance on or within 500 feet of a public park.” majority judicially expanded has the five- hundred-foot to include zone the area where defen- justify dant’s stash of was found order to defendant’s accept I interpretation conviction. Because cannot strained 2C:35-7.1(a) majority uphold allows defen- conviction, dant’s zone I dissent. must agree I majority there with was sufficient evidence to support marijuana, his defendant’s conviction for distribution of *11 marijuana possessed for the amount of he person on his when public park, he was within five hundred of a and for feet marijuana constructively possessed, amount he of and cocaine public stored in his stash. For his actions within a zone and marijuana person for of the amounts and cocaine found on and his constructively possessed, that he defendant was convicted of distribute, fourth-degree possession marijuana of with to intent b(12) (count 2C:35-5a(l) one); contrary to N.J.S.A. third- degree possession marijuana of distribution to with public park, contrary within of a distribute while 500 feet to 2C:35-10a(l) (count three); third-degree possession N.J.S.A. of 2C:35-10a(l) (count cocaine, contrary four); to N.J.S.A. and third- degree possession distribute, contrary of cocaine with intent to to 2C:35-51(1) b(3) (count five). majority N.J.S.A. and I The part company appeal willing uphold in this because the Court is to second-degree posses- an additional conviction for distribution or sion of with cocaine intent to distribute while within five hundred (count public park contrary feet of a to N.J.S.A 20:35-7.1 seven), second-degree when the cocaine in that conviction involved “in, park].” public not feet [a
was on or within 500 added). (emphasis 2C:35-7.1 for contraband possession
The
calls
to be
public park.
The
protecting
five-hundred-foot zone
a
Ibid.
second-degree park
on
stash
cocaine
which rests defendant’s
outside of
five-hundred-foot zone.
zone conviction was located
Nevertheless,
majority upholds that conviction based on
application
novel
constructive
relocates
constructively possessed
to
defendant is situated.
cocaine where
single
majority cannot
to a
in this State where
The
cite
case
possessed
thing, constructively possessed, is
at a
deemed to
thing
At oral
location other than where the
itself is located.
argument,
single
that it
not cite
case
the State conceded
could
support
proposition
either.
spin
majority gives
principle
The novel
supported by
v.
Spivey,
constructive
is not
State
Spivey,
apart-
N.J.
Spivey simply provides support approach no for the to construc- today by tive my taken perspective, the Court. From saving one count of multiple this defendant’s convictions is of small significance. large What looms uncertainty is the that now will be constructively east over where a possessed possessed. item is Is the location of an constructively possessed item now a movable target, sometimes where the is located and other times actually where the item is? The constructively location of a possessed susceptible item should not be manipulation made penalties. maximize criminal I approach believe the better is to plain language follow the of the statute if itself. Even I were to assume that there is argue ambiguity, some room to I would lenity conclude that the rule of favors defendant because neither language legislative history nor supports this statute majority’s conclusion. here, 2C:35-7.1(a), N.J.S.A issue provides distributing, dispensing who violates subsection a. of N. [a]ny person J.S.2C:35-5 by possessing dangerous or with intent to distribute a controlled substance or con- analog trolled substance while on or within 500 in, feet of the real property comprising housing building public or a is facility, public park, of a degree, degree crime of the second it is a crime the third if except marijuana.
violation than involved less one ounce Subsection a. of N.J.S.A 2C:35-5 provides: (C.24:21-l seq.), as authorized c. 226 Except by P.L.1970, et it shall be unlawful for knowingly or any person purposely: (1) To distribute or or to manufacture, or have under his control dispense, possess dangerous
with intent or manufacture, distribute a controlled dispense, sub- analog; stance or controlled substance (2) To create, distribute, or or have under his control with possess distribute, a counterfeit controlled substance. construction, statutory Under the rules of language if the unambiguous clear and only on its face and admits of one reason- meaning able application, unambiguous manner of then those *13 378 meaning. literal v. are consistent with their State
words
enforced
(2004).
however,
Reiner,
307, 311,
If,
180
N.J.S.A.
and was modeled after
2C:35-7.1
resembles
zones).
(creating drug-free
general
school
2C:35-7
respects,
purpose:
both enactments share a similar
to create
drug-free
by imposing
penal
zones around certain areas
enhanced
upon
engage
ties
those who
activities within those areas.
Parker,
N.J.Super.
415, 424,
See State v.
strong support drug-free for the creation of zones does not mean drugs physically may that swept located outside of those zones be clearly within the statute’s reach. statute describes argue Indeed, one could an such of the statute renders interpretation language distributing, dispensing possessing with intent superfluous "by analog” to distribute a controlled substance or controlled substance contained 2C:35-7.1, in because that under 2C:35- activity already proscribed 5. feet”) (“500 penalties enhanced will the area -withinwhich
precisely avoid, by Legislature to intent pertain. presume an We and, respect in consequently, their vagueness penal statutes impreci consequences of such negative application, because process by failing due Vague laws offend constitutional sion. Valentin, give adequate notice. See State v. A 519 .2d322 history legislative
Although undoubtedly true that it is Drug Reform Act of 1986 evinces surrounding Comprehensive campaign against wage aggressive an strong legislative desire to enough. drug-related activity, general is not Ibid. by implication or (stating “[pjenal cannot extended laws intendment.”). is the answer to the Nowhere those materials question that this must now resolve: whether precise Court purview to include within the of 2C:35-7.1 intended person possessory for a offence under prosecution of a physically public park when that stands constructively possesses drugs located outside of the zone but *15 statutorily drug-free zone. Because an examination defined question resolve the of whether extrinsic sources does not circumstances, I am com- legislative prohibition applies in these lenity requires penal that pelled to to the rule of resort strictly ambiguities interpreted in and be statutes be construed of criminal defendants. favor lenity requirement of due
The rule of
“has at its heart
process.
punished
for a crime unless both
No one shall
clearly
positive
punishment
and its
are
set forth
law.”
crime
DeMarco,
25, 36,
Suspension
For dissent. would (count reverse defendant’s conviction under N.J.S.A 2C:35-7.1 seven). I would hold the cocaine that defendant constructive- ly possessed kept was located where the cocaine stash was that, therefore, defendant cannot be convicted of apply that cocaine under N.J.S.A. 2C:35-7.1. The statute does not “in, precise perimeter when the are not on or within” the drug-free zones delineated the act. joins Justice ALBIN in this dissent. LONG, For Justice PORITZ Justices affirmance—Chief
ZAZZALI, WALLACE, and RIVERA-SOTO—5. For reversal—Justices LaVECCHIA and ALBIN—2.