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HARK & HARK
New Jersey Criminal Lawyer
1101 Marlton Pike West
Cherry Hill, NJ 08002
(866) 427-5529
Practicing in all NJ Counties
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New Jersey Drug Charges
Revised 12/11/00
MAINTAINING OR OPERATING A CONTROLLED DANGEROUS
SUBSTANCE PRODUCTION FACILITY
(N.J.S.A. 2C:35-4)
Count of
the indictment charges the defendant with the crime of maintaining
or operating a controlled dangerous substance production facility.
That section of our statutes provides in pertinent part that:
Any person who knowingly maintains or
operates any premises, place, or facility used for the manufacture
of [choose appropriate CDS or controlled substance analog]
methamphetamine, lysergic acid diethylamide, phencyclidine, or
marijuana in an amount greater than five pounds or ten plants of any
substance listed in Schedule I or II or any drug or substance which,
when ingested, is metabolized or otherwise becomes a controlled
dangerous substance in the human body,
or the analog of any such substance, or any person who knowingly
aids, promotes, finances or otherwise participates in the
maintenance or operations of such premises, place or facility is
guilty of a crime . . .
In order to convict the
defendant of this charge, the State must prove each of the following
elements beyond a reasonable doubt:
1). That the
defendant maintained or operated, or aided, promoted, financed or
otherwise participated in the maintenance or operation of, a
premises, place, or facility. To maintain means to carry on, to keep
up, to continue.
In order for the State to prove that the defendant maintained the
premises, place or facility, there must be evidence of continuity in
the use of the (name location of facility) to manufacture
(insert appropriate controlled dangerous substance).
2). That the
premises, place or facility was used for the manufacture of
[insert appropriate controlled dangerous substance or controlled
substance analog]. Manufacture means the production,
preparation, propagation, compounding, conversion or processing of a
controlled dangerous substance or controlled substance analog,
either directly or by extraction from substances of natural origin,
or independently by means of chemical synthesis, and includes any
packaging or repackaging of the substance or labeling or relabeling
of its container.
3). That the
defendant acted knowingly. 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. Knowledge is a condition of the mind that cannot be
seen and can only be determined by inference from conduct, words or
acts. Therefore, it is not necessary that witnesses be produced by
the State to testify that a defendant said that (he/she) knowingly
did something. (His/her) knowledge may be gathered from (his/her)
acts and (his/her) conduct and from all (he/she) said and did at the
particular time and place and from all the surrounding circumstances
reflected in the testimony [and evidence adduced at trial].
If you find that the State has
proven each of these elements beyond a reasonable doubt, then you
must find the defendant guilty of the charge. If you find that the
State has failed to prove any of these elements beyond a reasonable
doubt, then you must find the defendant not guilty.
See N.J.S.A. 2C:35-2 (effective
August 19, 1999).
State v. Kittrell, 145 N.J.
112, 122 (1996).
When the allegation is that the
defendant was apprehended the first time that (he/she)
operated a manufacturing facility, the jury should be
instructed that to convict the defendant, there must be
evidence that the defendant intended to operate the
manufacturing facility on more than one occasion. State
v. Kittrell, 145 N.J. at 122.
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