State v. Richards

• Court: New Jersey Superior Court – Appellate Division
• Citation: 155 N.J.Super. 106,382 A.2d 407
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert RICHARDS, Defendant-Appellant.
• Decision Date: 04 January 1978

Page 106

155 N.J.Super. 106 382 A.2d 407 STATE of New Jersey, Plaintiff-Respondent,
v.
Robert RICHARDS, Defendant-Appellant. Superior Court of New Jersey, Appellate Division. Argued Oct. 11, 1977.
Decided Jan. 4, 1978.

[382 A.2d 408]

Page 109

John A. Yacovelle, Cherry Hill, for defendant-appellant.

Larry R. Etzweiler, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen.).

Before Judges CONFORD, MICHELS and PRESSLER.

The opinion of the court was delivered by

PRESSLER, J. A. D.

Defendant Robert Richards was convicted by a jury of possession of a substantial quantity of marijuana and of possession thereof with intent to distribute in violation of N.J.S.A. 24:21-20(a)(3) and 24:21-19(a)(1), respectively. He appeals on the single ground that the trial judge erred in denying his motion for judgment of acquittal at the conclusion of the State's case. ¹

It is well settled that the motion for judgment of acquittal must be granted if the State's evidence, both direct and circumstantial,[382 A.2d 409] viewed in its entirety and giving the State the benefit of all evidence favorable to it and all favorable inferences which could reasonably be drawn therefrom, could not permit a reasonable jury to find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-459, 236 A.2d 385 (1967). While the rule is thus readily stated, its application can be an inordinately difficult task in a case as close as we find this one to be. The specific question requiring determination here is whether the facts proved by the State raise the permissible inference or merely the speculation that defendant's constructive possession of the marijuana

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was, as is statutorily required, either knowing or intentional. See State v. DiRienzo, 53 N.J. 360, 377, 251 A.2d 99 (1969).

The State's proofs, viewed in their entirety and most favorably to its theory of guilt, present the following factual picture. In late October or early November 1973 Police Lieutenant Paradise of Pine Hill, New Jersey, received a telephone call from a Los Angeles police officer advising him that the authorities there had intercepted a 35-pound package while in United Parcel Service (UPS) custody, which contained 15 large plastic bags of marijuana. The package, whose transit had originated in California, was addressed to a David Speigal at a fictitious California address. The shipping label bore defendant's name as the sender and his return address shown thereon was his actual residence in Pine Hill, New Jersey. Lieutenant Paradise was further advised that the Los Angeles police were sending the package to him for further police action in New Jersey. It arrived on November 5 in an outer wrapping provided by the Los Angeles Police Department, removal of which left the package as originally sealed, labeled and sent. At about noon on November 9, a Friday, the package was delivered to defendant's apartment by Detective Booker of the Pine Hill Police Department pursuant to arrangements made by the Pine Hill police and UPS. Detective Booker, dressed in a UPS uniform and provided with a UPS delivery receipt pad, was driven to the apartment in a UPS truck by a uniformed UPS employee. He brought the package to the apartment door, which was promptly opened for him by defendant's wife, who signed for the package but declined Detective Booker's offer to carry it up the stairs for her. Accordingly, he left the package just inside the doorway of the apartment at the bottom of the staircase.

The UPS truck had been followed by an unmarked police surveillance van. Both the front and rear of the apartment, which was a second-floor unit in a typical garden apartment complex served by its own interior streets, was kept under constant surveillance by Pine Hill police officers from the

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moment the package was delivered shortly after noon on Friday until 11 a. m. the following Monday morning when a search warrant was obtained and executed. The results of the surveillance consisted in totality of these observations: About 20 minutes after the delivery, plaintiff's wife emerged from the apartment and drove away. The apartment was apparently unoccupied and nobody either entered it or left it or was seen in its immediate vicinity until 7:30 on Saturday evening, when an unidentified woman drove up in front of the apartment, entered it and emerged shortly thereafter with a small white poodle, which she took away with her. Two hours later an automobile occupied by five people stopped in front of the apartment for about a minute and then drove approximately 100 feet further on to where the surveillance van was parked. One of the male passengers, not defendant, got out, walked around the van, looked into it several times, and then reentered the vehicle which once again pulled up in front of the apartment. After about another minute it left the apartment complex. The van was unoccupied, the surveillance being then conducted from a vacant apartment across the street from defendant's apartment. Lieutenant Paradise, who was in the vacant apartment, observed the movements of the automobile and the inquisitive passenger and radioed a patrol car stationed outside the complex, directing the patrol officer to stop the car to give the operator a summons [382 A.2d 410] because of a defective light, and to ascertain the identity of the occupants. Two of the occupants were defendant and his wife, who apparently identified themselves with credentials listing addresses different from the Pine Hill apartment. The car was searched, nothing incriminating was found and it proceeded on its way. No activity of any other kind was observed by the surveillance team in or near the apartment for the balance of the weekend.

No one returning to the apartment by Monday morning, a search warrant was then obtained and executed by Lieutenant Paradise and others from his department, including Detective

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Booker, who ascertained that the package he had delivered the previous Friday was exactly where he had left it and apparently untouched. The search of the apartment yielded the discovery of three pipes and a roach clip (a marijuana holder). A laboratory analysis of the residue of the pipes showed that one contained ordinary tobacco, one contained less than a thousandth of a gram of marijuana and the other contained a residue...