New Jersey Drug Charges
Approved 3/26/01
POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO
DISTRIBUTE IN PROXIMITY TO PUBLIC HOUSING FACILITIES, PARKS OR
BUILDINGS
(N.J.S.A.
2C:35-7.1)
Count _______ of the indictment charges the defendant
with possession of a controlled dangerous substance with intent to
distribute in proximity to Public Housing Facilities, Parks or
Buildings.
(Read Indictment)
The pertinent part of the statute
upon which this count of the indictment is based reads as follows:
Any person who violates [another section of our law] by possessing
with intent to distribute a controlled dangerous substance [or
controlled substance analog] while in, on or within 500 feet of the
real property comprising a Public Housing Facility, Public Park, or
a Public Building is guilty of a crime.
As I have already explained, (Insert appropriate CDS,
e.g. heroin, cocaine, etc.) is a dangerous substance
prohibited by the statute.
In order for you to find the defendant guilty of this
count of the indictment, the State must first prove beyond a
reasonable doubt that the defendant knowingly or purposely possessed
with intent to distribute a controlled dangerous substance (or
controlled substance analog). As I have previously instructed you,
the elements of possession with intent to distribute a controlled
dangerous substance are:
(1) S______ in evidence is (insert appropriate
CDS or controlled substance analog)
(2) The defendant possessed or had S______ under
(his/her) control
(3) The
defendant had the purpose to distribute S______ when (he/she)
possessed it or had it under (his/her) control.
In
addition to proving the elements of possession with intent to
distribute a controlled dangerous substance, to establish the
defendant’s guilt on this count, the State must also prove beyond a
reasonable doubt that when the defendant possessed a controlled
dangerous substance with intent to distribute, (he/she) was:
[CHARGE AND DEFINE APPLICABLE TERM]
in (or
within 500 feet of) any Public Housing Facility
OR
in (or
within 500 feet of) any Public Park
OR
in (or
within 500 feet of) any Public Building
“Public Housing Facility” means
any dwelling, complex of dwellings, accommodation, building,
structure or facility and real property of any nature appurtenant
thereto and used in connection therewith, which is owned by or
leased to a local housing authority in accordance with the “Local
Redevelopment and Housing Law,” [P.L. 1992, c.79 (C.40A:12A-1 et seq)]
for the purpose of providing living accommodations to persons of low
income.
“Public park” means a park, recreation facility or area
or playground owned or controlled by a State, county or local
government unit.
“Public Building” means any publicly owned or leased
library or museum.
The possibility that defendant may have been unaware
that the prohibited conduct took place in or within 500 feet of a
Public Housing Facility, Public Park or Public Building is not a
defense to this crime and shall not be considered by you in your
deliberations. I further instruct you that whether defendant
intended to make the distribution within 500 feet of the public
property is irrelevant. To prove this element, the State must prove
beyond a reasonable doubt that when the defendant possessed a
controlled dangerous substance with intent to distribute, (he/she)
was in or within 500 feet of a Public Housing Facility, Public Park
or Public Building.
To reiterate, in order for you to find the defendant
guilty of this count of the indictment, the State must prove all of
the following elements beyond a reasonable doubt:
(1) S_______ in evidence is (insert appropriate
CDS or controlled substance analog)
(2) The defendant possessed or had S_______.
under (his/her) control
(3) The defendant had the purpose to distribute
S_______ when (he/she) possessed it or had it under (his/her)
control.
(4.) That when the defendant possessed S
with the purpose to distribute it, (he/she) was in or
within 500 feet of a [charge as appropriate: Public Housing
Facility, Public Park or Public Building].
If you find that the State has proven all of 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 of these elements beyond a reasonable doubt, then you
must return a verdict of not guilty.
[SUBSTITUTE WHERE APPROPRIATE]
The Defendant, as part of (his/her) general denial of
guilt, asserts the defense that (he/she) did not possess with intent
to distribute [insert appropriate CDS] for profit and
that (he/she) did not possess with intent to distribute [insert
appropriate CDS] to a person 17 years or younger. In order
for this defense to be available, the defendant must prove by a
preponderance of the evidence, that is, it is more likely true than
not, that:
(1) The offense did not involve
distribution of a controlled dangerous substance for profit
AND
(2) The offense did not involve distribution to a
person 17 years of age or younger
This
defense applies only to this charge and shall not affect your
verdict concerning any other count of the indictment.
If you
find that the State has proven all the elements of this crime beyond
a reasonable doubt, and also find that the defendant has failed to
prove all of the elements of this defense by a preponderance of the
evidence, then you must return a verdict of guilty. On the other
hand, if you find that the State has failed to prove any of the
elements of the crime beyond a reasonable doubt, or that defendant
has proved all of the elements of the defense by a preponderance of
the evidence, then you must return a verdict of not guilty.
(TO BE UTILIZED IN CASES IN WHICH THE
QUANTITYOF MARIJUANA IS AN ELEMENT OF THE OFFENSE)
If you
have found the defendant guilty of possession of marijuana with
intent to distribute in or within 500 feet of a Public Housing
Facility, Public Park or Public Building, you then must determine
whether the State has proven beyond a reasonable doubt that the
quantity of marijuana involved was:
One (1)
ounce or more of marijuana including any adulterants and dilutants.
(Yes or No)
After determining if the State
has proven this quantity beyond a reasonable doubt, you should mark
the appropriate section of the verdict sheet which will be supplied
to you.
This
instruction is meant to be given as a supplement to the
instructions on unlawful possession of CDS and possession of
CDS with intent to distribute. In cases where those charges
are not present, definitions of key terms must be
incorporated here.
When a
controlled dangerous substance analog is involved, refer to
the definition found in N.J.S.A. 2C:35-2.
If
applicable, lack of legal authorization pursuant to
N.J.S.A. 24:21-1 should be charged as an additional
element.
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