Under New Jersey law (as outlined in the statutes and in the criminal jury instructions), to “possess” an item, one must have a knowing, intentional control of that item accompanied by a knowledge of its character. So, a person who possesses an item must know or be aware that he possesses it and must know what it is.
Possession cannot merely be a passing control, fleeting or uncertain in its nature.
One must knowingly obtain or receive an item or be aware of his control of the item for a sufficient period of time to have been able to relinquish his control if he chose to do so.
The prosecution must prove beyond a reasonable doubt that a possessor acted knowingly in possessing the item. A person acts “knowingly” if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of the high probability of their existence. A person also acts knowingly as to a result of his conduct if he is aware that it is practically certain that that conduct will cause such a result.
A person may possess an item even though it was not physically on his person at the time of the arrest, if, at some time prior to his arrest, he had control and dominion over it.
Possession can actual or constructive. It can also be joint.
A person is in actual possession of an item when he knows what it is and knowingly has it on his person at a given time.
Constructive possession means possession in which the possessor does not physically have the item on his person but is aware that the item is present and is able to exercise intentional control over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is in constructive possession. This might occur if one places the item in a car, house or storage location, just as examples.
Possession may be sole or joint. If one person alone has actual or constructive possession of an item, possession is sole. If two or more persons share actual or constructive knowing possession of an item, possession is joint.
In trying to apply these New Jersey rules, the actual analysis of the facts of any specific case are critical as the concepts of actual or constructive possession, knowing possession and joint possession can be complex. A New Jersey drug crime attorney can assist you in comparing your facts against the legal definition of possession.
If law enforcement has other evidence regarding the possession of the CDs, then they do not have to find them in the actual possession or in the residence. Moreover, someone could be charged as a party to an offense - they helped another commit the offense but never actually possessed the CDs themselves.