Opinion
No. A-2601-04T4
Submitted May 17, 2006
Decided August 4, 2006
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-05-0627.
Before Judges Parker and Grall.
Yvonne Smith Segars, Public Defender, attorney for appellant (Jean B. Bennett, Designated Counsel, on the brief).
James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jane E. Hendry, Senior Assistant Prosecutor, of counsel and on the brief).
Defendant Orlando Santiago appeals from a judgment of conviction entered on October 29, 2004 after a jury found him guilty of third degree possession of a controlled dangerous substance (CDS),N.J.S.A. 2C:35-10a(1); third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and third degree possession with intent to distribute in a school zone,N.J.S.A. 2C:35-7 and -5a. Counts one and two were merged into count three and defendant was sentenced to a term of five years subject to three years parole ineligibility.
In this case, only one witness testified. Paterson Police Officer Manuel Avila had been assigned to the narcotics division for ten years. On June 26, 2003, at 8:00 p.m., he was conducting an undercover investigation in the area of 248 Park Avenue in Paterson. The building in question is a four-story multi-unit apartment building. The officer testified that when he entered the building he saw a black woman coming out of apartment "O" holding several small plastic baggies that he believed contained crack cocaine. Avila detained the woman and when he looked into the apartment, he saw a dark-skinned Hispanic man, later identified as defendant. Avila sent his partner, Detective Anthony DeMarco, into the apartment to secure defendant. They then called for backup to secure the premises while they obtained a search warrant. The woman, Tonya Hill, did not reside in apartment "O".
After obtaining the search warrant, Avila proceeded to search the apartment and found thirty-five plastic baggies containing suspected crack cocaine under the cushion of the couch where defendant had been seated when Avila first looked into the apartment. The thirty-five baggies were identical to the ones Hill had in her possession while Avila detained her. One hundred sixty seven dollars in cash and a key to the apartment were found on defendant's person. Defendant did not live in the apartment and there was no testimony that defendant was involved in any drug transaction at the time the officers observed him.
Defendant's motion to suppress was denied and the matter was tried to the jury. In this appeal, he argues:
POINT ONE
THE DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT SHOULD HAVE BEEN GRANTED BECAUSE THE EVIDENCE WAS INSUFFICIENT TO FIND THAT THE DEFENDANT WAS IN POSSESSION EITHER ACTUAL OR CONSTRUCTIVE OF THE SEIZED NARCOTICS
POINT TWO
THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AFTER THE STATE'S CASE SHOULD HAVE BEEN GRANTED
POINT THREE
THE SEARCH OF THE DEFENDANT WAS ILLEGAL AND VIOLATED HIS FOURTH AMENDMENT RIGHTS AND ANY EVIDENCE SEIZED FROM THE DEFENDANT SHOULD BE EXCLUDED
POINT FOUR
THE SENTENCE IMPOSED BY THE COURT BELOW VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED
POINT FIVE
ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE
We have carefully considered the record in light of defendant's arguments and we are satisfied that the arguments, except for the sentencing argument, lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following.
In his first two points, defendant contends that the trial court erred in denying his motions for a judgment of acquittal and for judgment notwithstanding the verdict (JNOV). In essence, defendant argues that the evidence was insufficient to support a verdict of guilty on constructive possession.
The standard for reviewing a claim that the evidence is insufficient to support a verdict was articulated by the Supreme Court in State v. Reyes, 50 N.J. 454, 459 (1967):
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
"[C]onstructive possession cannot be based on mere presence at the place where contraband is located. There must be other circumstances or statements of defendant permitting the inference of defendant's control of the contraband." State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd, 133 N.J. 481 (1993). N.J.S.A. 2C:35-10a provides that it is "unlawful for any person, knowingly or purposely . . . to possess, actually or constructively, a controlled dangerous substance." Possession requires that "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:2-1c. Thus, "criminal possession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by knowledge of its character."State v. Brown, 80 N.J. 587, 597 (1979) (citations omitted); seeState v. Schmidt, 110 N.J. 258, 268 (1988). "`[P]hysical 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. Shipp, 216 N.J. Super. 662, 664 (App.Div. 1987) (quotingBrown, supra, 80 N.J. at 597). "Ownership in conjunction with possession is not a required element of the possessory crime; one can knowingly control something without owning it and be guilty of unlawful possession." Brown, supra,80 N.J. at 598. "Proof of possession may be by circumstantial evidence as well as direct evidence." State v. Rajnai, 132 N.J. Super. 530, 536 (App.Div. 1975); State v. Foreshaw, 245 N.J. Super. 166, 186 (App. Div.), certif. denied, 126 N.J. 327 (1991). Possession need not be actual but may be constructive, and "need not be exclusive but may be jointly exercised by two or more persons." Rajnai, supra,132 N.J. Super. at 536; see Foreshaw, supra, 244 N.J. Super. at 186.
Our review of the record convinces us that the State presented sufficient evidence to support the jury verdict for constructive possession. Unlike the automobile cases upon which defendant relies, the evidence here, albeit it circumstantial, led to a reasonable inference that defendant was in constructive possession of the cocaine seized from the apartment.
Defendant next argues that the trial judge erred in denying his motion to suppress. We disagree. Detective Avila testified that when he went to the building at 248 Park Avenue, the front door was not locked and he entered into a common hallway where he first saw Hill leaving apartment "O" holding three baggies of what he, in his experience, believed was crack cocaine. While standing in the common hallway, he looked into apartment "O" and saw defendant. Clearly, Avila had probable cause to detain Hill based upon his observation of the bags in her hand, and after observing defendant inside the apartment, had probable cause to obtain a search warrant for the apartment.
It is undisputed that exigent circumstances justified warrantless entry into the apartment. Defendant observed the officers detain Hill and examine the bags in her hand. If the officers had not secured the apartment, defendant would have had the opportunity to destroy evidence. Thus, exigent circumstances supported a warrantless entry by the police.State v. Hutchins, 116 N.J. 457, 460 (1989); State v. Josey,290 N.J. Super. 17, 24-30 (App.Div.), certif. denied, 146 N.J. 497 (1996);State v. Stanton, 265 N.J. Super. 383, 386 (App.Div. 1993); State v. Alvarez, 238 N.J. Super. 560, 567-70 (App.Div. 1990). The officers "had a right to be in the common hallway and what fell into plain view from that vantage point was not a search." State v. Jordan,115 N.J. Super. 73, 75 (App.Div.), certif. denied, 59 N.J. 293 (1971). It gave the police probable cause to arrest Hill and seize the bags.Ibid.
While the officers arguably had a constitutional basis to search the apartment without a warrant, they elected to secure defendant and obtain the warrant based upon Avila's observations.
[T]he police conducted themselves properly and with due regard for the defendant's constitutional rights. After the police had prevented the defendant from destroying the evidence, they refrained from searching the defendant's apartment until a warrant had been obtained. Holding invalid the reasonable, proper and sensible actions of the police in this case would unduly "frustrate effective law enforcement" and hamper government in its "primary mission" to protect against crime.
[Josey, supra, 290 N.J. Super. at 31 (quoting State v. Davis, 50 N.J. 16, 22 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968).]
The motion to suppress was properly denied.
Finally, the State acknowledges that defendant's sentence to a maximum term of five years on a third degree offense violates the dictates ofState v. Natale, 184 N.J. 458 (2005).
Accordingly, we remand for resentencing in accordance withNatale.
Defendant's conviction is affirmed, but the matter is remanded for resentencing.