dissenting.
The Court reverses defendant’s four possession-based convictions, holding that the Appellate Division erred in relying on a theory of vicarious liability not charged by the trial court, and concluding that the proofs were legally insufficient to establish constructive possession. Ante at 272. The Court recognizes that narcotics possession and distribution offenses may be prosecuted on a constructive possession theory where the defendant controls “a companion who actually possesses the contraband,” id. at 272, including situations where, as here, the companion is transporting the drugs from one locale to another. See id. at 275. However, the majority holds that the State’s evidence in this case demonstrated only a “casual relationship” between Schmidt and Athan, and thus fell short of “the kind of control over the cocaine that our cases and examples contemplate.” Id. at 273. In my view, the evidence of defendant’s control over the narcotics was sufficient to submit to the jury the counts charging possession and possession with intent to distribute. Thus, while I am in full agreement with the Court’s treatment of the vicarious liability issue, I would affirm defendant’s convictions.
The Court’s thoughtful discussion of constructive possession uncovers the doctrine’s legal and philosophical foundations, ante at 266-70, and concludes that “there is a considerable degree of latitude within which courts may seek to expand the legal fiction of constructive possession in order to achieve the *277ends of justice.” Id. at 269-70. As put aptly by one court, “[i]t would be odd if a dealer could not be guilty of possession, merely because he had the resources to hire a flunky to have custody of the drugs.” United States v. Manzella, 791 F.2d 1263, 1266 (7th Cir.1986). Consistent with this notion the Legislature has expressly extended the reach of this State’s criminal possession and distribution statutes to include more than just those defendants found to have actually possessed a controlled dangerous substance. See N.J.S.A. 24:21-19 (“unlawful * * * to possess or have under his control with intent to manufacture, distribute, or dispose * * *”); N.J.S.A. 24:21-20 (“unlawful * * * to possess, actually or constructively, a controlled dangerous substance * * *”). Prior to this case we had dealt with the constructive possession doctrine in State v. Brown, 80 N.J. 587, 597 (1979), where we held that in a prosecution for narcotics possession and distribution, constructive possession could be established by proof of “an intention to exercise control over [the drugs] manifested in circumstances where it is reasonable to infer that the capacity to do so exists.”
The Court’s discussion also demonstrates the fact-sensitive nature of the constructive possession inquiry. Whether or not a specific defendant possessed the requisite dominion and control over the drugs through another person is likely to turn on facts and circumstances peculiar to each case. See ante at 268-69 (citing cases exemplifying wide range of potential constructive possession settings). In such a context, it is unwise for courts to attempt to identify specific factual conditions that are necessary as a matter of law to sustain a finding of control. Such efforts are likely to result in artificial rules that will “inevitably invade the traditional province of the jury to assess the significance of circumstantial evidence, and to determine whether it eliminates all reasonable doubt as to whether the accused had that power [to control the drugs].” United States v. Staten, 581 F.2d 878, 883 (D.C.Cir.1978). Such an invasion of the jury’s province is threatened here by the Court’s suggestion that in drug shipment cases, constructive possession may be *278submitted to the jury only in certain categorical circumstances, as in the ease of a defendant who is a drug overlord. Ante at 273, 274-75 n. 3. The Court’s very effort to isolate such “categories” of cases emphasizes that dominion and control, the hallmarks of constructive possession, are fact-sensitive concepts, and therefore far more appropriate for determination by a jury.
The role of an appellate court in reviewing the sufficiency of the evidence requires that we view the State’s evidence in its entirety, along with all favorable inferences that could reasonably be drawn therefrom, e.g., State v. Brown, supra, 80 N.J. at 591, and ask, in the context of a conviction founded on constructive possession, “whether the fact-finder [could] reasonably conclude from the proof that the accused likely had some appreciable ability to guide the destiny of the drug.” United States v. Staten, supra, 581 F.2d at 883; see also id. at 884; Wheeler v. United States, 494 A.2d 170, 172 (D.C.App. 1985). State and federal courts agree that the requisite dominion and control over the contraband may be found even though the evidence reveals that it was exercised only “through others,” United States v. Raper, 676 F.2d 841, 847 (D.C.Cir.1982), and have consistently sustained possessory convictions based on proofs of control over those in actual possession. See United States v. Brantley, 733 F.2d 1429, 1433-34 & n. 8 (11th Cir.1984) (defendant, “by virtue of his dominion and control,” constructively possessed shipment of drugs in actual possession of codefendant hired to pick up the drugs in South Carolina and drive them to new hiding spot in Georgia), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Martorano, 709 F.2d 863, 869-71 (3rd Cir.) (defendant constructively possessed drugs in van when paid agent, subject to his control, took actual possession of van and prepared to drive away), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983); Archer v. Commonwealth, 225 Va. 416, 303 S.E.2d 863, 864 (1983) (constructive possession established where defendant arranged drug sale and directed someone else to retrieve and *279transfer drugs); State v. Wooten, 55 N.C.App. 530, 286 S.E.2d 635, 639 (1982) (same); cf. United States v. Manzella, supra, 791 F.2d at 1266-67 (reversing possessory conviction where evidence showed defendant attempted to arrange major drug sale but had no control over drugs possessed by supplier).
Indeed, unlike the facts before the Court today, in many cases convictions premised on constructive possession have been sustained even though the defendant never had, or never intended to have, actual possession of the narcotics. E.g., United States v. Dupuy, 760 F.2d 1492, 1500 (9th Cir.1985) (conviction sustained where defendant arranged drug transaction and helped negotiate value of cocaine to be traded for marijuana); United States v. Martorano, supra, 709 F.2d at 865-71; United States v. Moreno, 649 F.2d 309, 313 (5th Cir.1981) (defendant never in actual possession constructively possessed drugs by control over paid agents); United States v. Raper, supra, 676 F.2d at 847-48 (defendant possessed drugs in actual possession of helper by virtue of control over disposition); United States v. Valentin, 569 F.2d 1069, 1071 (9th Cir.1978) (defendant constructively possessed drug shipment when brother delivered it to air freight office addressed to him); cf. State v. Kimbrough, 109 N.J.Super. 57, 64 (App.Div.1970) (constructive possession of stolen goods established where defendant “intentionally obtains a measure of control or dominion over the custody of the stolen property even though physical possession is in another”).
The evidence in this case established that the defendant paid an intermediary to transport his cocaine from Florida, through New Jersey, to a destination in New York where defendant was waiting for him. Defendant supplied the intermediary with a rental car, and was to have provided him with a plane ticket back to Florida after the drugs had been delivered. After New Jersey police officers stopped the car and discovered the drugs, defendant was called and traveled to New Jersey in order to rescue the shipment and his couriers. In my view, these proofs justified submitting to the jury the question whether defend*280ant’s capacity to exercise control over the cocaine was sufficient to sustain convictions for possession.1 I would affirm defendant’s convictions.
GARIBALDI, J., joins in this opinion.
For reversal—Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK and O’HERN—5.
For affirmance—Justices GARIBALDI and STEIN—2.
The trial court instructed the jury that a person is in constructive possession of something when "although not in actual possession!,] with knowledge of its character [he] knowingly has both the power and the intention at a given time to exercise control over [it] through another person or persons."