New Jersey Drug Charges
Approved 3/26/01
DISTRIBUTING A
CONTROLLED SUBSTANCE:
PROXIMITY TO PUBLIC
HOUSING FACILITIES, PARKS OR BUILDINGS
(N.J.S.A.
2C:35-7.1)
Count _______ of the indictment charges the defendant
with distributing a controlled dangerous substance in proximity to
Public Housing Facilities, Parks or Buildings.
(Read Indictment)
The pertinent part of the statute (N.J.S.A.
2C:35-7.1) upon which this count of the indictment is based reads as
follows:
Any person who violates [another
section of our law] by distributing a controlled dangerous
substance [or controlled substance analog] while in, on or within
500 feet of the real property comprising a Public Housing Facility,
Public Park, or a Public Building is guilty of a crime.
As I have already explained, (Insert appropriate CDS,
e.g. heroin, cocaine, etc.) is a dangerous substance
prohibited by the statute.
In order for you to find the defendant guilty of this
count of the indictment, the State must first prove beyond a
reasonable doubt that the defendant knowingly or purposely
distributed a controlled dangerous substance (or controlled
substance analog). As I have previously instructed you, the elements
of distributing a controlled dangerous substance are:
(1) S______ in evidence is (insert appropriate
CDS or controlled substance analog).
(2) The defendant distributed S______ on the date
alleged in the indictment.
(3)
That the defendant acted knowingly or purposely in
distributing S______.
In addition to proving the elements of distribution of a
controlled dangerous substance, to establish the defendant’s guilt
on this count, the State must also prove beyond a reasonable doubt
that the distribution occurred:
[CHARGE AND DEFINE APPLICABLE TERM]
in (or within 500 feet of) any Public Housing Facility
OR
in (or within 500 feet of) any Public Park
OR
in (or within 500 feet of) any Public Building
“Public Housing Facility” means any dwelling, complex of dwellings,
accommodation, building, structure or facility and real property of
any nature appurtenant thereto and used in connection therewith,
which is owned by or leased to a local housing authority in
accordance with the “Local Redevelopment and Housing Law,” P.L.
1992, c.79 (C.40A:12A-1 et seq) for the purpose of providing living
accommodations to persons of low income.
“Public park” means a park, recreation facility or area or
playground owned or controlled by a State, county or local
government unit.
“Public
Building” means any publicly owned or leased library or museum.
The possibility that defendant may have been unaware
that the prohibited conduct took place in or within 500 feet of a
Public Housing Facility, Public Park or Public Building is not a
defense to this crime and shall not be considered by you in your
deliberations. I further instruct you that whether defendant
intended to make the distribution within 500 feet of the public
property is irrelevant. To prove this element, the State must simply
prove that when the defendant distributed a controlled dangerous
substance, (he/she) was in or within 500 feet of a Public Housing
Facility, Public Park or Public Building.
To
reiterate, in order for you to find the defendant guilty of this
count of the indictment, the State must prove all of the following
elements beyond a reasonable doubt:
1. S______ in evidence is (insert appropriate CDS) (or a
controlled substance analog).
2.
That the defendant distributed S______ on the date alleged
in the indictment.
3.
That the defendant acted knowingly in distributing S______.
4. That when the defendant distributed S______, (he/she) was
in or within 500 feet of a [charge as appropriate: Public
Housing Facility, Public Park or Public Building].
If you
find that the State has proven all of these elements beyond a
reasonable doubt, then you must return a verdict of guilty. On the
other hand, if you find that the State has failed to prove any of
these elements beyond a reasonable doubt, then you must return a
verdict of not guilty.
[SUBSTITUTE WHERE APPROPRIATE]
The Defendant, as part of (his/her) general denial of
guilt asserts the defense that (he/she) did not distribute [insert
appropriate CDS] for profit and that (he/she) did not
distribute [insert appropriate CDS] to a person 17
years or younger. In order for this defense to be available, the
defendant must prove by a preponderance of the evidence, that is, it
is more likely true than not, that:
(1) The offense did not involve distribution of
a controlled dangerous substance for profit
AND
(2) The offense did not involve distribution to a
person 17 years of age or younger
This
defense applies only to this charge and shall not affect your
verdict concerning any other count of the indictment.
If you find that the State has proven all the elements
of this crime beyond a reasonable doubt, and also find that the
defendant has failed to prove both of the elements of this defense
by a preponderance of the evidence, then you must return a verdict
of guilty. On the other hand, if you find that the State has failed
to prove any of the elements of the crime beyond a reasonable doubt,
or that defendant has proved both of the elements of the defense by
a preponderance of the evidence, then you must return a verdict of
not guilty.
(TO
BE UTILIZED IN CASES IN WHICH THE QUANTITY
OF
MARIJUANA IS AN ELEMENT OF THE OFFENSE)
If you
have found the defendant guilty of distribution of marijuana in or
within 500 feet of a Public Housing Facility, Public Park or Public
Building, you then must determine whether the State has proven
beyond a reasonable doubt that the quantity of marijuana involved
was:
One (1) ounce or more of marijuana including any
adulterants and dilutants. (Yes or No)
After
determining if the State has proven this quantity beyond a
reasonable doubt, you should mark the appropriate section of the
verdict sheet which will be supplied to you.
This
instruction is meant to be given as a supplement to the
instruction on distribution of CDS. In cases where that
charge is not present, definitions of key terms must be
incorporated here.
When a
controlled dangerous substance analog is involved, refer to
the definition found in N.J.S.A. 2C:35-2.
If
applicable, lack of legal authorization pursuant to
N.J.S.A. 24:21-1 should be charged as an additional
element.
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