(2C:35-5)
Count of the indictment charges the defendant as follows:
(Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35-5) on which this indictment is based reads as follows:
Except as authorized by (statute), it shall be unlawful for any person knowingly or purposely ... to possess or have under his control with intent to ... distribute a controlled dangerous substance (or controlled substance analog).2
The various kinds of substances are defined in another part of our statute. (Insert appropriate CDS, e.g., heroin, cocaine, etc.) is a dangerous substance prohibited by statute. (The defendant does not claim legal authorization, so the exceptions in the statute are not applicable in this case.)
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 controlled substance analog).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. The defendant, when (he/she) possessed or had under (his/her) control S in evidence, had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposefully in possessing or having under (his/her) control with intent to distribute S in evidence.
[when it is alleged that a controlled substance analog was possessed with intent to distribute the following definition of controlled substance analog should be charged]:
1N.J.S.A. 2C:35-5 grades this offense for sentencing purposes by the type, quantity and purity of the CDS involved. In certain cases, the defendant is guilty of an offense regardless of the quantity and purity of the CDS distributed. This charge is sufficient for such cases. However, in cases in which the quantity and/or purity of the CDS is an element of the offense, N.J.S.A. 2C:35-5c requires that this element be determined by the jury. In such a case, this charge would have to be supplemented to add this element. Please see the supplementary model charge concerning this.
2To be charged when the indictment alleges possession with intent to distribute a controlled substance analog.
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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.3 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, that the defendant had under (his/her) control or possessed S in evidence, "possess" means (charge definition of possession).
In regard to the third element, that the defendant had the intent to distribute S in evidence, "distribute" means the transfer, actual, constructive or attempted,4 from one person to another of a controlled dangerous substance (or controlled substance analog). It is not necessary that the drugs be transferred in exchange for payment or promise of payment of money or anything of value.5
"Intent" means a purpose to do something, a resolution to do a particular act or accomplish a certain thing. Intent is a state of mind, and it is very rare that intent is proven by witnesses who can testify that an accused said (he/she) had a certain intent when (he/she) engaged in a particular act. The intention may be gathered from a person's acts, conduct, from all the person said and did at the particular time and place, and from all of the surrounding circumstances.
You may consider any evidence as to the quantity, purity, and packaging6 of S together with all the other evidence in the case to aid you in your determination of the element of intent to distribute.
3N.J.S.A. 2C:35-2.
4This definition is taken from the definitions of "distribute" and "deliver" set forth in N.J.S.A. 2C:35-2.
5State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff'd 107 N.J. 603 (1987).
6See State v. Perez, 218 N.J. Super. 478, 482-486 (App. Div. 1987).
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In regard to the fourth element, the State must prove, as I have stated, that the defendant acted knowingly or purposefully in having under (his/her) control or possessing S with intent to distribute.
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.7
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 of (he/she) believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.8
The terms "knowingly" and "purposefully," like intent, refer to 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 four elements of this offense are that:
1. S in evidence is (insert appropriate CDS or controlled substance analog).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. The defendant had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposely in possessing or having under (his/her) control with intent to distribute S in evidence.
7N.J.S.A. 2C:2-2b(1).
8N.J.S.A. 2C:2-2b(2)
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If you find that the State had 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 of these elements beyond a reasonable doubt, then you must return a verdict of not guilty.
