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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
UNLAWFUL POSSESSION OF A CONTROLLED
DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35‑10)
(To be used in cases in which the quantity of CDS is not an element
of the offense)
Count of the indictment charges the
defendant as follows:
(Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35‑10) on
which this indictment is based reads as follows:
It is unlawful for any person knowingly or purposely, to obtain or
to possess, actually or constructively, a controlled dangerous
substance [or controlled dangerous substance analog].
The various kinds of controlled dangerous substances are
defined in another part of our statute. (Insert appropriate CDS,
e.g., heroin, cocaine, etc.) is a controlled dangerous substance
prohibited by statute.
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 in cases in which it is alleged that a controlled substance
analog was possessed, charge as follows:]
2. S in evidence is
a controlled substance analog.
3. That the defendant possessed or
obtained S in evidence.
4. That the defendant acted knowingly or purposely in
possessing or obtaining S in evidence.
[when it is alleged that a controlled substance analog has been
possessed, 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, "obtain" means to
acquire, to get, to procure. "Possess" means to [charge definition
of possession].
In regard to the third element, the State must prove, as
I have stated, that the defendant acted knowingly or purposefully in
obtaining or possession S . 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.
Remember then 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.
To reiterate, the three elements of this offense are
that:
1. S in evidence is (insert appropriate
CDS) (or controlled dangerous substance analog).
2. The defendant possessed or
obtained S in evidence.
3. The defendant acted knowingly or purposely in possessing
or obtaining 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.
Note:
Because the mandatory community service provision contained in
N.J.S.A. 2C:35‑10a(4) prescribes a form of enhanced punishment,
rather than defining a separate substantive offense, the official
commentary to the Comprehensive Drug Reform Act (Laws 1987, Chapter
106), states that the determination of whether the person committed
the offense while on school property or a school bus, or within
1,000 feet of school property, will be made by the court at the time
of sentencing. See The Criminal Justice Quarterly,
Vol. 9, No. 3, Fall 1987.
With the exception of marijuana and hashish, possession of
any amount of CDS is a crime. Therefore, it is not
necessary for the jury to make a finding as to quantity. In
cases involving marijuana and hashish, there is the
additional element of quantity ‑ 50 grams in respect to
marijuana and 5 grams in respect to hashish. N.J.S.A.
2C:35‑10a(3). Possession of lesser amounts of these drugs
is a disorderly persons offense. N.J.S.A.
2C:35‑10a(4). Thus, in a marijuana or hashish possession
case, these additional elements must be charged, and when
appropriate a charge on the lesser included disorderly
persons offense must be given. The jury should be
instructed that in the event they find the defendant guilty,
they should determine whether the State has proven beyond a
reasonable doubt the specified quantity was possessed.
To be charged when the indictment alleges possession of a
controlled dangerous substance analog.
N.J.S.A. 2C:35‑10 provides that if this offense is
committed on, or within 1,000 feet of school property or a
school bus, and if the defendant is not sentenced to a term
of imprisonment, the defendant's sentence must include 100
hours of community service. It should be noted that this
provision, unlike N.J.S.A. 2C:35‑7, not create a
separate offense, or an element of an offense to be
determined by a jury. Rather, the provision simply creates
an enhanced sentence. Therefore, the judge at sentencing is
to make the determination of whether the offense was within
a school zone. See the Official Commentary to the
Comprehensive Drug Reform Act of 1986 (reprinted in 9
Criminal Justice Quarterly at p. 160 (Fall, 1987) which
states:
"Because the mandatory community service provision of this
section prescribes a form of enhanced punishment, rather
than defining a separate substantive offense, it is intended
that the determination of whether the person committed the
offense while on school property or a school bus or within
1,000 feet of school property, will be made by the court at
the time of sentencing."
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