New Jersey Drug Charges
Revised 2/3/92
SUPPLEMENTAL CHARGE TO OFFENSES SET FORTH
IN N.J.S.A. 2C:35-5
(To
be utilized in cases in which the quantity
of
the CDS is an element of the offense)
If you have found the defendant guilty of (possession
of) (distributing) (possessing with intent to distribute) (insert
appropriate CDS or controlled substance analog), you then must
determine the quantity of (insert appropriate CDS or controlled
substance analog) involved. It is the State's burden to prove
beyond a reasonable doubt the quantity of (insert appropriate CDS or
controlled substance analog) involved.
The State need not prove defendant's knowledge of the quantity of
the drugs, so long as it proves beyond a reasonable doubt that
defendant knowingly possessed the controlled dangerous substance.
[THE FOLLOWING SHOULD BE CHARGED ONLY WHEN THE INDICTMENT OR
ACCUSATION ALLEGES AGGREGATION OF INDIVIDUAL ACTS]
[You may aggregate (insert the
appropriate CDS or Controlled Substance analog) when you find that
separate amounts of the (insert the appropriate CDS or Controlled
Substance analog) were obtained/possessed or distributed or
manufactured according to a scheme or course of conduct either by
one or several, or all of the defendants. If you determine that the
(insert the appropriate CDS or Controlled Substance analog) was
obtained/possessed or distributed or manufactured according to a
scheme or course of conduct, by one, several, or all of the
defendants, the weight amounts may be added together to form a
single total amount. Each defendant in the scheme or course of
conduct may be found guilty of possession/distribution/manufacture
of the aggregate quantity. The mere fact that more than one person
may be present in the same location with a controlled dangerous
substance is not enough to aggregate to all of the parties without
circumstantial evidence or statements of the defendants to show a
common scheme or joint possession.
Therefore, you should consider everything each defendant
did and said at the time and place and all the surrounding
circumstances.]
[THE FOLLOWING IS TO BE CHARGED WHEN HEROIN OR COCAINE (OR THEIR
ANALOGS) IS INVOLVED:
N.J.S.A. 2C:35-5(b)(1) - (3)]
Specifically, you must determine which one of the
following quantities have been proven:
1. Five (5) ounces or more
of (insert appropriate CDS or controlled substance analog),
including any adulterants or dilutants, (and included within this
quantity were at least 3.5 grams free base drug).
or
2. One-half ounce or more, (but less than five
(5) ounces),
of (insert appropriate CDS or controlled substance analog) including
any adulterants or dilutants, (and included within this quantity
were at least 3.5 grams or pure free base drug).
or
3. Less than one-half (½) ounce of (insert
appropriate CDS or controlled substance analog), including any
adulterants or dilutants (and included within this quantity were
less than 3.5 grams of pure free base drug or an undetermined amount
of pure free base drug.)
After determining which one of these quantities the
State has proven beyond a reasonable doubt, you should mark the
appropriate section of the verdict sheet which will be supplied to
you.
[THE FOLLOWING IS TO BE CHARGED WHEN A SCHEDULE I OR II DRUG (OR ITS
ANALOGS) OTHER THAN HEROIN ORCOCAINE IS INVOLVED N.J.S.A.
2C:35-5b(4) AND (5)]
Specifically, you must determine whether the State has
proven beyond a reasonable doubt that the quantity of the (insert
appropriate CDS or controlled substance analog) was one (1) ounce or
more, including any adulterants or dilutants, (and included within
this quantity were at least 3.5 grams of pure free base drug).
There will be a space on the verdict sheet on which you should mark
your decision in this regard.
[THE FOLLOWING IS TO BE CHARGED WHEN LSD OR PHENCYCLIDINE (OR THEIR
ANALOGS) IS INVOLVED: N.J.S.A.
2C:35-5(b)(6) AND (7)
Specifically, you must determine whether the State has
proven beyond a reasonable doubt that the quantity of the (LSD or
its analog) (phencyclidine or its analog) was (100 milligrams) (10
grams) or more including any adulterants or dilutants. There will
be space on the verdict sheet on which you should mark your decision
in this regard.
[THE FOLLOWING IS TO BE CHARGED WHEN
METHAMPHETAMINE (OR ITS ANALOG) IS INVOLVED:
N.J.S.A. 2C:35-5(b)(8) AND (9)]
Specifically, you must determine whether the State has
proven beyond a reasonable doubt that the quantity of the
methamphetamine (or its analog) was one (1) ounce or more, including
any adulterants or dilutants, (and included in this quantity were at
least 3.5 grams pure free base drug).
There will be space on the verdict sheet on which you should mark
your decision in this regard.
[THE FOLLOWING IS TO BE CHARGED WHEN MARIJUANA OR HASHISH IS
INVOLVED
N.J.S.A. 2C:35-5(b)(10) - (12)]
Specifically, you must determine which one of the
following quantities has been proven:
1. (Five (5) pounds) (One (1) pound) or more of
(marijuana) (hashish) including any adulterants or dilutants.
or
2. (One (1) ounce) (Five (5) grams) or more of
(marijuana) (hashish) (but less than (five (5) pounds) (one (1)
pound),
including any adulterants and dilutants.
or
3. Less than (one (1) ounce) (five (5) grams) of
(marijuana) (hashish) including any adulterants and dilutants.
After determining which one of
these quantities the State has proven beyond a reasonable doubt, you
should mark the appropriate section of the verdict sheet which will
be supplied to you.
State
v. Torres, 236
N.J. Super. 6 (App. Div. 1989).
State
v. Curry and Lawrence,
245 N.J. Super. 278, (Law Div. 1989).
This
quantity makes the offense a first degree crime. N.J.S.A.
2C:35-5b(1). In cases in which only a second degree offense
is charged (N.J.S.A. 2C:35-5b(2), this portion of the
charge should not be given. In such a second degree case,
the jury should simply be instructed to determine whether
the State has proven beyond a reasonable doubt that quantity
was one-half (½) ounce or more, including any adulterants or
dilutants, (and included within this quantity were at least
3.5 grams of pure free base drug (see footnote 4 below).
As
originally enacted, N.J.S.A. 2C:35-5b(1) - (3);
N.J.S.A. 2C:35-5(4) and (5); and N.J.S.A.
2C:35-5b(8) and (9) required that the State prove that there
was at least 3.5 grams pure free base drug to elevate the
degree of the crime. On June 28, 1988, L. 1988, L.
1988 c. 44 was enacted. This law made a number of
amendments to the Comprehensive Drug Reform Act. Among
these amendments were provisions deleting the requirements
for proof of at least 3.5 grams of pure free base drug.
Accordingly, this language should be charged only in cases
occurring before June 28, 1988. For cases occurring on or
after this date, the language should not be charged.
The
language "but less than five (5) ounces" should be used in
cases in which a first degree offense is charged. There is
no need to include this language when only a second degree
offense is charged.
This
quantity makes the offense a second degree crime.
N.J.S.A. 2C:35-5b(10). In cases in which only a third
degree offense is charged (N.J.S.A. 2C:35-5b(11),
this portion of the charge should not be given. In such a
third degree case, the jury should simply be instructed to
determine whether the State has proven beyond a reasonable
doubt that quantity was one (1) ounce or more in the case of
marijuana or (5) grams or more in the case of hashish.
The
language "but less than (five (5) pounds) (1) pound): should
be used in cases in which a second degree offense is
charged. There is no need to include this language when a
third degree offense is charged.
|
