1975), rev’d o.b., 71 N.J. 476 (1976), to the extent that
Sapp failed to give appropriate weight to the availability
of the inferences to be drawn from all of the surrounding
circumstances. The Court in Brown stated that weight
should be given to the following inculpatory
circumstances: that defendant resided in the dwelling,
that he had control over the premises and there was no
showing that defendant shared the apartment with
persons other than his wife, the presence of narcotics in
the bedroom, the close proximity of defendant to the
narcotics, the incriminatory potential of the drugs, and
the contemporaneous occurrence of other drug-related
activity. The Court rejected as dispositive defendant’s
lack of ownership of the dress where the heroin was
discovered, reasoning that possession can be constructive
rather than actual. As long as there is an intention to
exercise control over the item manifested under
circumstances where it is reasonable to infer that the
capacity to do so exists, then a person may be found to be
in constructive possession.
In State v. Cofield, 127 N.J. 328 (1992), the Supreme
Court found that there was no abuse of discretion by the
trial court in ruling that evidence of a subsequent illegal
drug incident was relevant and admissible for
establishing defendant’s constructive possession of illegal
drugs during an earlier incident for which defendant was
on trial. There was sufficient relevance between the two
incidents in that they occurred in the same location, were
similar in kind, and were connected closely enough in
time so as to allow the jury to make the connection
regarding the element of possession. See also State in the
Interest of J.M., 57 N.J. 442 (1971); State v. Hurdle, 311
N.J. Super. 89 (App. Div. 1998); State v. Binns, 222 N.J.
Super, 583 (App. Div.), certif. denied, 111 N.J. 624
(1988); State v. Meneses, 219 N.J. Super. 483 (App. Div.
1987), certif. denied, 110 N.J. 156 (1988).
However, in State v. Schmidt, 110 N.J. 258 (1988),
the Court found insufficient evidence that defendant
constructively possessed drugs found in the trunk of a car
driven by a drug courier. Although defendant was an
alleged leader in a Tampa, Florida-based narcotics
operation that transported cocaine from Florida to New
York, the Court found that the State in this case had only
established a casual relationship between the defendant
and the courier, namely that the courier had worked on
defendant’s boat, and that he had simply been instructed
to drive a car from Florida to New York which was
insufficient to impute knowledge to defendant of the
existence of the drugs. While acknowledging that a
charge of constructive possession may be premised on a
defendant’s control of a companion who actually
possesses the contraband, the Court found lacking
evidence of the kind of control over the cocaine that “our
cases and examples contemplate.” The Court further
held that defendant’s conviction for possession of cocaine
could not be upheld on the basis of vicarious liability
under a theory of conspiracy, where the jury was not
instructed that it could find defendant guilty of
possession as an accomplice or a conspirator, but was
solely charged on conspiracy as a substantive crime. See
also State v. Roldan, 314 N.J. Super. 173 (App. Div.
1998); State v. Miller, 273 N.J. Super. 192 (App. Div.
1994); State v. Whyte, 265 N.J. Super. 518 (App. Div.
1992), aff’d, 133 N.J. 481 (1993); State v. Milton, 255
N.J. Super. 514 (App. Div. 1992); State v. Jackson, 326
N.J. Super. 276 (App. Div. 1999).IV. TRIAL-RELATED ISSUES
A. Elements/Basis for Prosecution
1. School zone offense
In State v. Ivory, 124 N.J. 582 (1991), the Supreme
Court held that where the park in which defendant
possessed narcotics was owned by the school board, and
contained athletic fields regularly used for public and
parochial school athletics, it constituted a “school
property used for school purposes” within meaning of
N.J.S.A. 2C:35-7, notwithstanding that the property
was leased by the municipality, and was also used for non-
school recreational purposes. Also, § 7 does not require
that defendant intend to distribute the narcotics on or
within 1,000 feet of school property in order to be found
guilty of this offense. See also State v. Bethea, 243 N.J.
Super. 280 (App. Div.), certif. denied, 122 N.J. 401
(1990), where it was held that a defendant did not have
to intend to distribute the drugs within the school zone
in order to be convicted under N.J.S.A. 2C:35- 7.But compare, State v. Belnavis, 311 N.J. Super. 195
(App. Div. 1998), where the appellate court found that
it did not constitute “school property... owned by or
leased to any... school or school board” pursuant to
N.J.S.A. 2C:35-7 where the property was neither owned,
leased nor used exclusively by the school but was merely
used by a school board for school activities. The court
concluded that no proof existed that defendant’s conduct
occurred within 1,000 feet of property regularly,
consistently, and actually used for school purposes, and
ownership or leasing is a prerequisite under the statute.Likewise, in State v. Tarver, 272 N.J. Super. 414
(App. Div. 1994), the Appellate Division ruled that the