New Jersey Drug Charges
POSSESSION OF A CONTROLLED DANGEROUS
SUBSTANCE
WITH INTENT TO DISTRIBUTE
(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
possess or have under his control with intent 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, e.g., heroin, cocaine, etc.) is a dangerous
substance prohibited by 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 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
(insert appropriate CDS or controlled substance analog).
2. The defendant possessed,
or had under (his/her) control, S_____ in evidence.
3. The defendant, when
(he/she) possessed or had under (his/her) control S_____ in
evidence, had the intent to distribute S_____ in evidence.
4. That the defendant acted
knowingly or purposefully in possessing or having under (his/her)
control with intent to distribute S_____ in evidence.
[when it is alleged that a controlled
substance analog was possessed with intent to distribute 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, that the defendant had under (his/her) control or possessed
S_____ in evidence, "possess" means (charge definition of
possession).
In regard to the third
element, that the defendant had the intent to distribute S_____ in
evidence, "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.
"Intent" means a purpose
to do something, a resolution to do a particular act or accomplish a
certain thing. Intent is a state of mind, and it is very rare that
intent is proven by witnesses who can testify that an accused said
(he/she) had a certain intent when (he/she) engaged in a particular
act. The intention may be gathered from a person's acts, conduct,
from all the person said and did at the particular time and place,
and from all of the surrounding circumstances.
You may consider any
evidence as to the quantity, purity, and packaging
of S _____ together with all the other evidence in the case to aid
you in your determination of the element of intent to distribute.
In regard to the fourth
element, the State must prove, as I have stated, that the defendant
acted knowingly or purposefully in having under (his/her) control or
possessing S_____ with intent to distribute.
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 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.
The terms "knowingly" and
"purposefully," like intent, refer to 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 four
elements of this offense are that:
1. S_____ in evidence is
(insert appropriate CDS or controlled substance analog).
2. The defendant possessed,
or had under (his/her) control, S_____ in evidence.
3. The defendant had the
intent to distribute S_____ in evidence.
4. That the defendant acted
knowingly or purposely in possessing or having under (his/her)
control with intent to distribute S_____ in evidence.
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
possession with intent to distribute 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).
See State v. Perez, 218 N.J.
Super. 478, 482-486 (App. Div. 1987).
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