powers, equal protection, cruel and unusual punish-
ment, principles of double jeopardy and vagueness, and
claims that they were unenforceable because they
operated to coerce guilty pleas.
G. 2C:35-19
State v. Roberson, 246 N.J. Super. 597 (App. Div.),
appeal dismissed, 126 N.J. 330 (1991).
The legislature did not unconstitutionally invade the
domain of the Supreme Court by enacting N.J.S.A.
2C:35-19, in that it establishes a pretrial procedure for
rendering admissible the results of a chemical analysis of
suspected CDS. Because the statute is not a rule of
evidence, it was not subject to the process whereby the
Supreme Court is required to initiate its adoption.
III. SUFFICIENCY OF EVIDENCE
A. Possession Generally
Possession is an act, within the meaning of the Code,
if the possessor knowingly procured or received the thing
possessed or was aware of his control thereof for a
sufficient period to have been able to terminate his
possession. N.J.S.A. 2C:2-1(c). Possession is to be
construed strictly as signifying intentional control and
dominion, State v. McCoy, 116 N.J. 293, 299 (1989), the
ability to affect physically and care for the item during a
span of time, State v. Davis, 68 N.J. 69, 82 (1975); State
v. Labato, 7 N.J. 137, 148 (1951), accompanied by
knowledge of its character. State v. McCoy, supra. See State
v. Pena, 301 N.J. Super, 158, 162-63 (App. Div.), certif.
denied, 151 N.J. 465 (1997).
The law recognizes two kinds of possession, actual
possession and constructive possession. A person is in
actual possession of a particular article or thing when he
knows what it is, he has knowledge of its character, and
he knowingly has it on his person at a given time. State
v. Montesano, 298 N.J. Super. 597, 612 (App. Div.),
certif. denied, 150 N.J. 27 (1997). Constructive
possession means possession in which the person does not
physically have the property. Although not physically on
one’s person, he is aware of the presence of the property,
and is able to exercise intentional control and dominion
over it. Id. at 613. Thus, physical or manual control of
the proscribed item is not required as long as there is 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
(1979). Moreover, possession can be jointly shared by
several persons. Id.B. Constructive Possession/Circumstantial Evidence
The leading cases in this area are State v. Palacio, 111
N.J. 543 (1988), and State v. Brown, 80 N.J. 587 (1979).In each of these cases the Supreme Court found
sufficient evidence from which a jury could reasonably
infer that defendant was in constructive possession of
CDS.In State v. Palacio, supra, defendant was a passenger
in a car where drugs were secreted. Based on the large
quantity of drugs seized, their purity and extraordinary
monetary value, the Court found that it was reasonable,
indeed likely, that the driver would travel with a
knowledgeable companion, defendant, rather than an
innocent passenger or stranger. The inference that the
driver was a drug smuggler was supported not only by the
large quantity, purity and value of the drugs, but by the
existence of a secret storage compartment in the car and
a slip of paper found in the driver’s wallet indicative of a
drug transaction. The court found further evidence of
complicity between the driver and the defendant
passenger based on their attempts to converse privately,
which supported the inference that the parties knew one
another, and based on the fact that since the driver was
from South Carolina and defendant had a Florida driver’s
license, they were traveling together.The court distinguished State v. Shipp, 216 N.J.
Super. 662 (App. Div. 1987), a case factually similar to
Palacio, but in which the defendant’s stepmother, a
passenger in the rear seat, was found in personal
possession of the CDS. The Appellate Division reversed
defendant’s conviction in Shipp, holding that
defendant’s presence in the automobile did not “suffice
to authorize an inference that he was sharing in the
intentional control and dominion over the contraband
material.” The Palacio Court rejected defendant’s
reliance on Shipp, supra, noting that, unlike Shipp, in
which defendant’s mother had the drugs in her handbag,
a location that suggested no knowledge on the part of
defendant, the CDS at issue in Palacio was stored in an
area of the car to which any occupant had free access.Likewise in State v. Brown, supra, the Court held that
there was sufficient evidence from which a jury could find
defendant constructively possessed CDS contained in a
pocket of a dress located in a bedroom closet. In so ruling,
it overruled State v. Sapp, 144 N.J. Super. 455 (App. Div.