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New Jersey Drug Charges
Approved 9/15/97
STRICT LIABILITY FOR DRUG INDUCED
DEATHS
(N.J.S.A. 2C:35-9)
(Count ________ of) the
indictment charges the defendant as follows:
(Read Indictment)
The pertinent part of the
statute (N.J.S.A. 2C:35-9) on which this indictment is based
reads as follows:
Any person who {manufactures}
{distributes} or {dispenses} {methamphetamine}, {lysergic acid
diethylamide}, {phencyclidine} or {any other controlled dangerous
substance classified in Schedules I or II} or {any controlled
substance analog thereof} is strictly liable for a death which
results from the injection, inhalation, or ingestion of that
substance and is guilty of a . . . crime.
This 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. The elements are that:
1. The defendant
{manufactured}, {distributed} or {dispensed} {methamphetamine},
{lysergic acid diethylamide}, {phencyclidine} or {any . . .
controlled dangerous substance classified in Schedules I or II} or
{any controlled substance analog thereof);
2. The defendant acted knowingly
or purposefully in {manufacturing}, {dispensing} or {distributing}
the {insert appropriate substance};
3. {Insert name of alleged
victim} injected, inhaled, or ingested the {insert appropriate
substance} {manufactured}, {distributed} or {dispensed} by the
defendant;
4. {Insert name of alleged
victim} died as a result of injecting, inhaling, or ingesting the
{insert appropriate substance} {manufactured}, {distributed} or
{dispensed} by the defendant. That is, the defendant’s act of
(manufacturing) (distributing) or (dispensing) the (insert
appropriate substance) caused (the name of alleged victim)’s death.
{When it is alleged that a Schedule I
or II controlled dangerous substance, other than those specifically
identified in the statute, i.e. methamphetamine, L.S.D., or
phencyclidine was involved, the following should be charged}
With respect to the first
element, the State, as I have said, must prove beyond a reasonable
doubt that the defendant {manufactured}, {distributed} or
{dispensed} a Schedule I or II controlled dangerous substance.
Here, the State alleges the defendant {manufactured}, {distributed}
or {dispensed} {insert appropriate substance, e.g. heroin,
cocaine, etc.). (Insert appropriate substance) is a Schedule I or
II controlled dangerous substance.
{When it is alleged that a controlled
substance analog was involved, the following definition of
controlled substance analog should be charged}
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.
In this case, the indictment alleges that the defendant
{manufactured}, {distributed} or {dispensed} ______________ which is
an analog of ________________, which is a Schedule I or II
controlled dangerous substance. Thus, to establish this part of the
first element, the State must prove beyond a reasonable doubt that
__________ has a substantially similar chemical structure to the
dangerous substance _____________, and that ________________ was
specifically designed to produce an effect substantially similar to
the controlled dangerous substance _______________, which is a
Schedule I or II controlled dangerous substance.
{If the
indictment alleges the defendant manufactured the CDS, charge the
following definition of manufacture}
“Manufacture” means the
production, preparation, propagation, compounding, conversion or
processing of {insert appropriate substance} either directly or by
extraction from substances of natural origin, or independently by
means of chemical synthesis, or by a combination of extraction and
chemical synthesis, and includes any packaging or repackaging of the
substance or labeling or re-labeling of its container, except that
this term does not include the preparation or compounding of a
controlled dangerous substance ( or controlled substance analog) by
an individual for (his/her) own use or the preparation, compounding,
packaging, or labeling of a controlled dangerous substance: (1) by a
practitioner as an incident to (his/her) administering or dispensing
of a controlled dangerous substance or controlled substance analog
in the course of (his/her) professional practice, or (2) by a
practitioner (or under his/her supervision) for the purpose of, or
as an incident to, research, teaching or chemical analysis and not
for sale.
In this regard, the term
“practitioner” means a physician, dentist, veterinarian, scientific
investigator, laboratory, pharmacy, hospital or other person
licensed, registered, or otherwise permitted to distribute,
dispense, conduct research with respect to, or administer a
controlled dangerous substance (or controlled substance analog) in
the course of professional practice or research in this State.
{If the indictment alleges that the defendant distributed the CDS
charge the following definition of distribution.}
With respect to the first
element, to “distribute” means the transfer, actual, constructive or
attempted, from one person to another of {insert appropriate
substance}.
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 second
element, the State must prove beyond a reasonable doubt that the
defendant acted knowingly or purposefully in {manufacturing},
{distributing}, or {dispensing} the {insert appropriate substance}.
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) 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.
In regard to the third element,
the State must prove beyond a reasonable doubt, as I have said, that
{insert name of alleged victim} injected, inhaled, or ingested the
{insert appropriate substance} {manufactured}, {distributed}, or
{dispensed} by the defendant.
The fourth element is
that {insert name of alleged victim} died as a result of injecting,
inhaling, or ingesting the {insert appropriate substance}
{manufactured}, {distributed}, or {dispensed} by the defendant. To
prove this element, the State must prove that the defendant’s act of
{manufacturing}, {distributing}, or {dispensing} the {insert
appropriate substance} caused {insert name of alleged victim}’s
death. In order for the State to prove this element, the State must
prove, beyond a reasonable doubt, the following:
First, the State must prove that
the injection, inhalation or ingestion of the {insert appropriate
substance} is an antecedent, that is a preceding act, but for which
the death would not have occurred; in other words, that the death
would not have occurred without the injection, inhalation, or
ingestion of the {insert appropriate substance}.
Second, the State must
prove that the death was not too remote in its occurrence as to have
a just bearing on defendant’s liability, and,
Third, the State must
prove that the death was not too dependent upon conduct
of another person which was unrelated to the {injection},
{inhalation}, {ingestion} of the {insert appropriate substance} or
to its effect as to have a just bearing on the defendant’s
liability.
In determining whether
the death was not too remote or not too dependent upon the conduct
of another person, you should consider, among all other factors
suggested by the evidence,
whether causes other than the {injection}, {ingestion}, {inhalation}
of the {insert appropriate substance} contributed to the death, and
if so, then the number and nature of such cause or causes.
You should also consider how drug-induced deaths normally occur in
comparison with how this death actually occurred,,
or, in other words, whether the State has proven beyond a reasonable
doubt that the death did not occur in such an unusual manner that it
would be unjust to find the defendant responsible for the death.
You should also consider, if you find them relevant, the length of
time between defendant’s act of {manufacturing}, {distributing},
{dispensing} the {insert appropriate substance} and the place of
{insert name of decedent}’s death.
The fact that {insert
alleged victim’s name} contributed to (his/her) own death by
(his/her) purposeful, knowing, reckless, or negligent injection,
inhalation, or ingestion of the {appropriate substance}, or by
(his/her) consenting to the administration of {insert appropriate
substance} by another is not a defense to prosecution for this
offense.
Thus, {insert name of alleged victim}’s conduct of injecting,
inhaling, or ingesting the {insert appropriate substance} or
consenting to its administration by another does not make the death
too remote or too dependent upon the conduct of another to have a
just bearing on defendant’s liability.
{At this point in the charge the Court should explain the
relationship of the remoteness issue to the facts of the case, if it
has not already done so. If the State’s and defendant’s versions of
the facts differ, the charge should include appropriate instructions
with respect to each party’s position}.
In summary, in order for the
State to prove the defendant’s guilt under this (count of the)
indictment, the State must prove four elements:
1. That the defendant
{manufactured}, {distributed}, or {dispensed} {insert appropriate
substance};
2. That the defendant
did so knowingly or purposefully;
3. That {insert name of alleged
victim} injected, inhaled, or ingested the {insert appropriate
substance}, and
4. That {insert name of
alleged victim} died as a result of injecting, inhaling, or
ingesting the {insert appropriate substance} {manufactured},
{distributed}, or {dispensed} by the defendant. In other words,
that the defendant’s act of {manufacturing}, {distributing}, or
{dispensing} the {insert appropriate substance} caused the victim’s
death; that is, but for {insert name of alleged victim}’s injection,
inhalation, or ingestion of the {insert appropriate substance},
(he/she) would not have died, and the death was not too remote in
its occurrence or too dependent upon the conduct of another person
which was unrelated to the injection, inhalation or ingestion of the
{insert appropriate substance} or its effect as to have a just
bearing on the defendant’s liability.
If you find that the State has
proven all of these elements beyond a reasonable doubt then you must
find the defendant guilty. On the other hand, if you find the State
has failed to prove beyond a reasonable doubt any of these elements,
then you must find the defendant not guilty.
Based on the State’s allegations, the
appropriate act or acts and substance or substances should
be selected.
Again, based on the State’s
allegations, the appropriate act or acts and substance or
substances should be selected.
Most indictments containing a drug
induced death count will also include a count for the
predicate offense of manufacturing or distributing the
drug. Therefore, the jury may well have been instructed
beforehand on the elements of manufacturing or distributing
a CDS. Under these circumstances, it will probably be
sufficient to direct the jury’s attention to the previously
given definition of these terms and to direct them to
utilize that definition in deciding this count. See
State v. Maldonado, 137 N.J. 536, 577 (1994)
(trial court instructed jury: “You will rely upon the law
that I have referred to before when I charged to you the law
that applies to a distribution of cocaine”, but then went on
to “remind” the jury of the definition of distribution.)
For the sake of completeness and because the court may wish
to reinforce the definition of these terms, this model
charge incorporates the full definition of the elements of
manufacturing and distributing CDS.
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).
In Cannel, Criminal Code
Annotated, at p. 681 (1996-1997 ed), N.J.S.A.
2C:35-9b2(b) is erroneously reproduced to read “too
dependent upon control of another.” (emphasis
added). The correct term is conduct not control.
See West, New Jersey Statutes Annotated,
2C:35-9b2(b) (1995), see also State v.
Maldonado, supra, 137 N.J. at 544 and the
1987 legislative commentary to N.J.S.A. 2C:35-9,
which is reprinted in Cannel, supra, at 683.
State v. Maldonado, supra,
at 570.
See Cannel, Criminal
Code Annotated, at pp. 682-684 (1996-1997 ed); note,
however, that State v. Maldonado, supra,
indicates in dictum that coerced or unknowing
consumption of drugs may be exculpatory. 137 N.J. at
572, n.5.
State v. Maldonado, supra,
137 N.J. at 576.
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