New Jersey Drug Charges
DISTRIBUTION OF A CONTROLLED
DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35‑5)
Count of
the indictment charges the defendant as follows:
(Read Indictment)
The pertinent part of the
statute (N.J.S.A. 2C:35‑5) on which this indictment is based
reads as follows:
Except as authorized by [statute], it
shall be unlawful for any person knowingly or purposely ... to
distribute ... a controlled dangerous substance [or controlled
substance analog].
The various kinds of
substances are defined in another part of our statute. (Insert
appropriate CDS, eg. heroin, cocaine, etc.) is a dangerous
substance prohibited by the statute. (The defendant does not claim
legal authorization, so the exceptions in the statute are not
applicable in this case.)
The statute, read together with
the indictment, identifies the element which the State must prove
beyond a reasonable doubt to establish guilt of the defendant on
this (count of the) indictment. They are as follows:
1. S
in evidence is (insert appropriate CDS or controlled substance
analog).
2. That the
defendant distributed S date alleged in the
indictment.
3. That the
defendant acted knowingly or purposefully in distributing S
.
[when it is alleged that a
controlled substance analog has been distributed the following
definition of controlled substance analog should be charged]:
(In regard to the first
element, a "controlled substance analog" is a substance which (1)
has a chemical structure substantially similar to that of a
controlled dangerous substance and (2) was specifically designed to
produce an effect substantially similar to that of a controlled
substance.
In this case the indictment alleges that the defendant distributed
which is an analog of the controlled dangerous
substance . Thus, to establish this element the
State must prove beyond a reasonable doubt that has
a substantially similar chemical structure to the controlled
dangerous substance and that was
specifically designed to produce an effect substantially similar to
the controlled dangerous substance .)
In regard to the second
element, to "distribute" means the transfer, actual, constructive or
attempted,
from one person to another of a controlled dangerous substance (or
controlled substance analog). It is not necessary that the drugs be
transferred in exchange for payment or promise of payment of money
or anything of value.
In regard to the third
element, the State must prove, as I have stated, that the defendant
acted knowingly or purposefully in distributing S .
A person acts knowingly
with respect to the nature of (his/her) conduct or the attendant
circumstances if (he/she) is aware that (his/her) conduct is of that
nature, or that such circumstances exist, or (he/she) is aware of a
high probability of their existence. A person acts knowingly with
respect to a result of (his/her) conduct if (he/she) is aware that
it is practically certain that (his/her) conduct will cause such a
result. "Knowing," "with knowledge" or equivalent terms have the
same meaning.
A person acts purposely
with respect to the nature of (his/her) conduct or a result thereof
if it is (his/her) conscious object to engage in conduct of that
nature or to cause such a result. A person acts purposely with
respect to attendant circumstances if (he/she) is aware of the
existence of such circumstances or (he/she) believes or hopes that
they exist. "With purpose," designed," "with design" or equivalent
terms have the same meaning.
Remember that when we
speak of knowingly and purposely we are speaking of conditions of
the mind that cannot be seen. It is not necessary for the State to
prove the existence of such mental states by direct evidence such as
a statement by the defendant that (he/she) had particular knowledge
or a particular purpose. Knowledge and purpose as separate
propositions of proof do not commonly exist. They must ordinarily
be discovered as other mental states are from circumstantial
evidence; that is, by reference to the defendant's conduct, words or
acts and all the surrounding circumstances.
To reiterate, the three
elements of this offense are that:
1. S
in evidence is (insert appropriate CDS) (or a controlled
substance
analog).
2. That the
defendant distributed S alleged in the indictment.
3. That the
defendant acted knowingly or purposefully in distributing S
.
If you find that the State has
proven all 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 one of these elements beyond a
reasonable doubt, then you must return a verdict of not guilty.
N.J.S.A. 2C:35‑5
grades this offense for sentencing purposes by the type,
quantity and purity of the CDS involved. In certain cases,
the defendant is guilty of an offense regardless of the
quantity and purity of the CDS distributed. This charge is
sufficient for such cases. However, in cases in which the
quantity and/or purity of the CDS is an element of the
offense, N.J.S.A. 2C:35‑5c requires that this element
be determined by the jury. In such a case, this charge
would have to be supplemented to add this element. Please
see the supplementary model charge concerning this.
To be charged when the
indictment alleges distribution of a controlled substance
analog.
This definition is taken
from the definitions of "distribute" and "deliver" set forth
in N.J.S.A. 2C:35‑2.
State v. Heitzman,
209 N.J. Super. 617, 621 (App. Div. 1986), aff'd 107
N.J. 603 (1987).
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