CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE REQUIRES THE STATE TO PROVE INTENT TO EXERCISE PHYSICAL CONTROL

CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE REQUIRES THE STATE TO PROVE INTENT TO EXERCISE PHYSICAL CONTROL

        In State v. Reeds  197 NJ 280 (2009)  the NJ Supreme Court stated:

“Plainly, such possession can be constructive, meaning that "`although [a defendant] lacks physical or manual control, the circumstances permit a reasonable inference that [the defendant] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" State v. Lewis, 185 N.J. 363, 371 (2005) (quoting State v. Spivey, 179 N.J. 229, 236-37 (2004) (internal citation and quotation marks omitted)). 

              Mere presence in a car or house is not sufficient for constructive possession.

              "For this offense the state must prove three material elements.  First, it must be proved that the item is a controlled dangerous substance. Second, it must be proved that defendant either obtained or possessed the substance.  Third it must be proved that defendant acted knowingly or intentionally."  33 N.J. Practice §521 p.475.

              The state must prove that the defendant acted knowingly or intentionally.  The state must prove that defendant knew the nature and character of the item, and it must prove that defendant's purpose in possessing the substance.  33 N.J. Practice §520 p.471 (1982).

              Possession is the intentional control of an item accompanied by an awareness of its character.  Constructive possession is when the defendant is aware of the substance and has an intention to exercise control over the substance.  State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

              Joint possession is when people knowingly share control over the article.  State v. Raja, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

              It is an offense to knowingly or intentionally obtain or possess a controlled dangerous substance.  N.J.S.A. 24:21-20a.  "The state must prove knowledge or intent on the part of the defendant.  Knowledge means that the defendant was aware of the existence of the object and was aware of its character.  Intent means it was the defendant's purpose to obtain or possess the item while being aware of its character.  State v.   McMenamin, 133 N.J. Super. 521, 524, 337 A. 2d 630, 631 (App. Div. 1975); State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

              Mere presence in a premises with other persons where controlled dangerous substances are found is not sufficient to justify an inference that a particular defendant was in sole or joint possession of the substance.  State v. Sapp, 71 N.J. 476, 477, 366 A. 2d 334, 335 (1976), overruled on other grounds by State v. Brown, 80 N.J. 587, 404 A. 2d 1111 (1979).

              The state must prove that the defendant was aware of the character of the substance to prove that the defendant acted with knowledge.  State v. Reed, 34 N.J. 554, 557, 170 A. 2d 419, 421 (1961); State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

         " Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime.  It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice.  Presence is not in itself conclusive evidence of that fact.  Whether presence has any probative value depends upon the total circumstances.  To constitute guilt there must exist a community of purpose and actual participation in the crime committed." 

         "Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to establish a defendant’s guilt.  Nor is mere awareness of the conspiracy.  Nor would it be sufficient for the State to prove only that the defendant met with others, or that they discussed names and interests in common.  However, any of these factors, if present, may be taken into consideration along with all other relevant evidence in your deliberations."

         See also U.S. v. Idowu 157 F. 3d 265 (3rd Cir. 1998) - holding that joint / constructive / actual possession and knowledge that something illegal was going on is insufficient. Prosecution must prove that you had specific knowledge that the bag contained heroin and not something else illegal!

        Please forward to me all documents which you have in your possession or which are in the possession of any law enforcement agency or the complainant  pertaining to my client which prove he possessed any CDS. Demand is made for a speedy trial.   If the Prosecutor has any questions I would be glad to speak with them.