New Jersey Drug Charges
Approved 3-19-90
DISTRIBUTION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A.
2C:35‑11)
Count of the indictment charges the
defendant as follows:
(Read indictment)
The pertinent part of the statute (N.J.S.A.
2C:35‑11) on which this indictment is based reads as follows:
a. It is unlawful for any person to
distribute any substance which is not a controlled dangerous
substance or controlled substance analog:
[Read Appropriate Section or Sections of
the Statute]
(1) Upon the express or implied
representation to the recipient that the substance is a controlled
dangerous substance [or controlled substance analog]; or
(2) Upon the express or implied
representation to the recipient that the substance is of such
nature, appearance or effect that the recipient will be able to
distribute or use the substance as a controlled dangerous substance
[or controlled substance analog]; or
(3)
Upon circumstances which would lead a reasonable person to
believe that the substance is a controlled dangerous substance [or
controlled substance analog].
The statute, read together with the indictment,
identifies the elements 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
not a controlled dangerous substance or controlled substance analog.
2. That either:
A. The defendant made an
expressed or implied representation to the recipient that S
in evidence is a controlled dangerous substance,
specifically (e.g. cocaine)
or
B. The defendant made an
expressed or implied representation to the recipient that S
in evidence is of such nature, appearance or effect
that the recipient will be able to distribute or use S in
evidence as a controlled dangerous substance, specifically (e.g.,
cocaine)
or
C. The defendant
possessed or had under his control with intent to distribute S
in evidence under circumstances which would lead a
reasonable person to believe that the substance is a controlled
dangerous substance, specifically (e.g., cocaine).
3. The defendant distributed S
in evidence.
4. The defendant, acted knowingly in
distributing S in evidence.
As I have stated, the first element is that S
in evidence is not a controlled dangerous substance or
controlled substance analog. Controlled dangerous substances are
defined in another part of our law. A controlled substance analog
is a substance that (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 dangerous substance.
You have heard testimony in this case that S in
evidence is _____________. It is, of course, up to you to determine
whether this testimony is credible. However, I instruct you that
___________ is not a controlled dangerous substance. You have also
heard testimony that _____________ is not a controlled substance
analog in that it would not produce an effect substantially similar
to that of a controlled dangerous substance and that it was not
specifically designed to produce such an effect. Again, it is
solely up to you to determine whether this testimony is credible.
In regard to the second element, as I have instructed
you, you must decide whether the State has proven beyond a
reasonable doubt [charge appropriate section or sections}:
That
either:
A. The defendant made an expressed or
implied representation to the recipient that S in
evidence is a controlled dangerous substance, specifically (e.g.
cocaine)
or
B. The defendant made an expressed
or implied representation to the recipient that S in
evidence is of such nature, appearance or effect that the recipient
will be able to distribute or use S in evidence as a
controlled dangerous substance, specifically (e.g., cocaine)
or
C. The defendant possessed or had
under his control with intent to distribute S in
evidence under circumstances which would lead a reasonable person to
believe that the substance is a controlled dangerous substance,
specifically (e.g., cocaine).
[In determining whether the circumstances were such as
to lead a reasonable person to believe that S is
a controlled dangerous substance, specifically (e.g., cocaine),
you should of course consider all the evidence including whether S
was packaged in a manner normally used for the
unlawful distribution of controlled dangerous substances; whether
any distribution or attempted distribution of S was
accompanied by an exchange of or demand for money or other thing as
consideration for S and the value of the
consideration exceeded the reasonable value of S ;
and whether the physical appearance of S is
substantially the same as that of a specific controlled dangerous
substance.]
[Note: When it is charged that the substance is an
imitation of a controlled dangerous substance analog, the
following charge, rather than the one set forth above, should be
given as the instruction on the second element of the offense.]
In regard to the second element, you must decide whether
the State has proven beyond a reasonable doubt [charge appropriate
section or sections]:
A. The defendant made an expressed or
implied representation to the recipient that S in
evidence is a controlled substance analog, i.e., the
defendant expressly or impliedly represented that S in
evidence has a chemical structure substantially similar to (e.g.
cocaine) and that S in evidence was specifically
designed to produce an effect substantially similar to that of
(e.g. cocaine)
or
B. The defendant made an expressed
or implied representation to the intended recipient that S
is of such a nature or effect that the recipient
will be able to distribute or use S in
evidence as a controlled substance analog, i.e. the defendant
expressly or impliedly represented that the recipient will be able
to distribute or use S as a substance that has
a chemical structure substantially similar to (e.g., cocaine)
and as a substance that was specifically designed to produce an
effect substantially similar to (e.g. cocaine)
or
C. The defendant possessed or had
under his control with intent to distribute S in
evidence under circumstances which would lead a reasonable person to
believe that the S in evidence is a controlled
substance analog, i.e. that S in
evidence has a chemical structure substantially similar to that of (e.g.,
cocaine) and that S in evidence was
specifically designed to produce an effect substantially similar to
(e.g. cocaine).
[In determining whether the circumstances were such as
to lead a reasonable person to believe that S is a
controlled substance analog, you should of course, consider all the
evidence, including whether S was packaged in a
manner normally used for the unlawful distribution of controlled
dangerous substances or controlled substance analogs; whether any
distribution or attempted distribution of S was
accompanied by an exchange of or demand for money or other thing as
consideration for S , and the value of the
consideration exceeded the reasonable value of S ;
and whether the physical appearance of S is
substantially the same as that of a specific controlled dangerous
substance or controlled substance analog.]
In regard to the third element, that the defendant
distributed S in evidence, 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 fourth element, the State must prove,
as I have stated, that the defendant acted knowingly 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.
Remember that when we speak of knowingly, we are
speaking of a condition of the mind that cannot be seen. It is not
necessary for the State to prove the existence of such mental state
by direct evidence such as a statement by the defendant that
(he/she) had particular knowledge. Knowledge as a separate
proposition of proof does not commonly exist. It 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.
It should be noted that the law provides that it shall
not be a defense that the defendant mistakenly believed a substance
to be a controlled dangerous substance [or controlled substance
analog.]
Thus, if you were to find that the defendant acted knowingly in
distributing S in evidence but mistakenly believed
that S in evidence was a controlled dangerous
substance [or controlled substance analog], as opposed to an
imitation controlled dangerous substance [or imitation controlled
substance analog], the defendant's mistaken belief as to the
character of S evidence
would not prevent you from finding that the defendant acted
knowingly in distributing S
in evidence.
To reiterate, the four elements of this offense are that
1. S in
evidence is not a controlled dangerous substance or controlled
substance analog.
2. A. The defendant made an
expressed or implied representation to the recipient that S
in evidence is a controlled dangerous substance,
specifically (e.g. cocaine)
or
B. The defendant made an
expressed or implied representation to the recipient that S
in evidence is of such nature, appearance or effect
that the recipient will be able to distribute or use S
in evidence as a controlled dangerous substance,
specifically (e.g., cocaine)
or
C. The defendant
possessed or had under his control with intent to distribute S
in evidence under circumstances which would lead a
reasonable person to believe that the substance is a controlled
dangerous substance, specifically (e.g., cocaine).
3. The defendant distributed S
in evidence.
4. The defendant acted knowingly in
distributing S in evidence.
If you find that the State had proven all these elements
beyond a reasonable doubt, then you must return a verdict of
guilty. On the other hand, if you find the State has failed to
prove any of these elements beyond a reasonable doubt, then you must
return a verdict of not guilty.
The statute provides that this offense may be committed in
three ways; that is by representation that the substance is
a CDS, by representation that the substance can be used or
distributed as a CDS, and under circumstances under which a
reasonable person would believe the substance to be a CDS.
The circumstances of the case will determine which one (or
more) of these sections should be charged.
The statute does not specify a mental element. (Compare
N.J.S.A. 2C:35-5 which specifies a knowingly or
purposefully distribution of CDS.) Nonetheless, in light of
N.J.S.A. 2C:2-2c(3) it would seem that a knowing
distribution is required.
N.J.S.A. 2C:35-11a(3)(a) through (c). This language
only should be charged when the third alternative is
applicable.
N.J.S.A. 2C:35-11a(3)(a) through (c). This language
should only be charged when the third alternative is
applicable.
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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