Merely having constructive possession of drugs with the intent to distribute in a drug-free park zone is sufficient to uphold a conviction under N.J.S.A. 2C:37-7.1a, which makes it a crime to distribute, dispense, or possess with the intent to distribute a controlled substance while in, on or within 500 feet of a public park, among other places.  In a 5-2 decision in State v. Lewis, the New Jersey Supreme Court stated that if a defendant “constructively possesses” the drugs, then the defendant may be convicted under the Code so long as a direct relationship exists between the drugs and the drug-free zone.  The court stated that a nexus exists “if the defendant conspires or attempts to distribute or sell drugs within the zone, even if the drugs are not within the zone and delivery is intended outside the zone.” 

            In Lewis, a police officer first observed defendant meet with a man in a drug-free park zone.  After conversing with the man, defendant walked to a nearby location outside the zone, retrieved a bag from under a log, removed some items from the bag, and returned to the man.  The man gave defendant money in exchange for the items in the bag.  A second purchaser later approached defendant, and defendant once again walked over to the stash location and returned to complete the transaction.  After arresting the defendant, officers investigated the stash location, where they found a storage bag containing twenty-three vials of marijuana and two clear bags with twenty bags of crack cocaine.  While the drug exchanges between defendant and the purchasers took place within 500 feet of a public park, the stash location was not within 500 feet of the park. 

            Under the Code, possession is “an act within the meaning of this section, if 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.  In finding that defendant possessed the drugs within the meaning of N.J.S.A. 2C:37-7.1a, the court found that a person may constructively possess an object where “although he lacks ‘physical or manual control,’ the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.”  Citing State v. Schmidt, 110 N.J. 258, 270 (1988).  Furthermore, the court found that the Legislature did not limit the statute to those who physically possess the drugs in the zone, nor that the drugs be in or within 500 feet of the public area.  Rather, a defendant violates N.J.S.A. 2C:37-7.1 whether the drugs are actually possessed on the person or the drugs are constructively possessed and located outside the park zone.