injury,” N.J.S.A. 2C:11-3a(3)(d). State v. McClain, 263
N.J. Super. 488, 495-96 (App. Div. 1993), certif. denied,
134 N.J. 477 (1993).
III. “MERE PRESENCE”
While it is true that “mere presence” at the scene of
the crime does not in itself conclusively prove guilt, it is
a circumstance to be considered with the other evidence
in determining accomplice status under N.J.S.A. 2C:2-
6c(1). State v. Dale, 271 N.J. Super. 334, 338 (App. Div.
1994). Nor does the failure of a spectator to interfere
make him a participant in the crime. State v. Bielkiewicz,
267 N.J. Super. 520, 531 (App. Div. 1993).
IV. AIDING AND ABETTING
Under the Code, an aider and abettor is treated as an
accomplice. N.J.S.A. 2C:2-6c(1)(b).
Defendant who drove the getaway vehicle could be
convicted of aiding and abetting an armed robbery, even
if the defendant was unaware that his companions were
carrying a gun or about their plans for robbery until they
committed robbery and returned to his vehicle. State v.
Baker, 303 N.J. Super. 411 (App. Div. 1997), certif.
denied, 151 N.J. 470 (1997).
A person cannot be an accomplice to a crime that has
already been completed. Thus, a defendant could not be
convicted of possession of cocaine or possession of cocaine
with the intent to distribute under a theory of accomplice
liability, because all of his activities in furtherance of the
drug conspiracy occurred after the codefendant’s
criminal possession of the cocaine had ended as a result of
its seizure by the State Police. State v. Roldan, 314 N.J.
Super. 173, 189 (App. Div. 1998).
An accessory after the fact may face prosecution for
obstruction, N.J.S.A. 2C:29-1, or hindering apprehen-
sion or prosecution of another, N.J.S.A. 2C:29-3.
V. RELATIONSHIP TO CAPITAL MURDER
The United States Supreme Court has upheld capital
murder statutes permitting a sentence of death for felony
murder based on accomplice liability. Those strict
liability crimes occurred without the capitally convicted
defendants sharing the intent to kill or the intent to
inflict serious bodily injury upon the victims. See Tison
v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d
127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982).In New Jersey, however, accomplice liability murder,
as well as serious bodily injury murder and felony
murder, is a noncapital form of murder that does not
subject a defendant to a penalty-phase trial even though
the jury has convicted the defendant of murder. State v.
Cooper, 151 N.J. 326, 419 (1997); State v. Moore, 113
N.J. 239, 300-03 (1988). With the exceptions of
murder for hire or the “drug kingpin,” a conviction based
on a theory of vicarious liability cannot subject the
defendant to death-penalty proceedings. State v. Chew,
150 N.J. 30, 74 (1997).Accomplice liability murder is an alternative and not
a lesser included form of murder. As such, in capital cases
that present a jury question whether a defendant is guilty
of death-eligible own-conduct murder or accomplice
liability murder, the trial court, after it instructs the jury
on the elements of the charged offenses, must instruct the
jury to first determine whether defendant is guilty of
purposeful or knowing murder. Only if the jury
unanimously finds defendant guilty of that offense
should it then determine whether defendant committed
the murder “by his own conduct” or, alternatively, as an
accomplice. Because those alternatives are mutually
exclusive, the jury should consider them simultaneously,
rather than acquitting defendant of one before
considering the other. The trial court must also make
clear to the jury that it need not be unanimous on the
own-conduct determination and that it must inform the
jury of the legal consequences of the own-conduct
finding. State v. Feaster, 156 N.J. 1 (1998).VI. POSSESSION
Possession for purposes of criminal liability can be
actual or constructive. Constructive possession can be
shared jointly and does not require physical control. State
v. Brown, 80 N.J. 587 (1979); State v. Shipp, 216 N.J.
Super. 662 (App. Div. 1987). Ordinarily, “mere
presence” of a person is insufficient to constitute criminal
possession. The court will look to the total circumstances
to find possession. In Shipp, supra, the Appellate Division
found that defendant’s presence in the car with his
stepmother, who possessed heroin in her handbag, was
sufficient to prove possession. See also State v. Miller, 273
N.J. Super. 192 (App. Div. 1994); State v. Whyte, 265
N.J. Super. 518 (App. Div. 1992), aff’d o.b. 133 N.J. 481
(1993); State v. Jackson, 326 N.J. Super. 276 (App. Div.
1999).