HOUSING
FACILITIES, PARKS OR BUILDINGS
(N.J.S.A.
2C:35-7.1)[1] model jury charge
Count _______ of the indictment
charges the defendant with distributing a controlled dangerous substance in
proximity to Public Housing Facilities, Parks or Buildings.
(Read
Indictment)
The pertinent part of the statute (N.J.S.A.
2C:35-7.1) upon which this count of the indictment is based reads as follows:
Any person who violates [another
section of our law] by distributing 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.[2]
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 distributed
a controlled dangerous substance (or controlled substance analog). As I have
previously instructed you, the elements of distributing a controlled dangerous
substance are:[3]
(1) S______
in evidence is (insert appropriate CDS or controlled substance analog).
(2) The
defendant distributed S______ on the date alleged in the indictment.
(3) That the
defendant acted knowingly or purposely in distributing S______.
In addition to proving the elements
of distribution of a controlled dangerous substance, to establish the
defendant’s guilt on this count, the State must also prove beyond a reasonable
doubt that the distribution occurred:
[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 simply prove that when the
defendant distributed a controlled dangerous substance, 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 a controlled substance analog).
2.
That the defendant distributed
S______ on the date alleged in the indictment.
3.
That the defendant acted knowingly
in distributing S______.
4.
That when the defendant
distributed S______, 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 distribute [insert appropriate CDS] for
profit and that he/she did not 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 both 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 both 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 QUANTITY
OF MARIJUANA IS AN
ELEMENT OF THE OFFENSE)
If you have found the defendant guilty of distribution of
marijuana 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.
[1] This
instruction is meant to be given as a supplement to the instruction on
distribution of CDS. In cases where that charge is not present, definitions of
key terms must be incorporated here.
[2] When a
controlled dangerous substance analog is involved, refer to the definition
found in N.J.S.A. 2C:35-2.
[3] If applicable, lack of legal authorization
pursuant to N.J.S.A. 24:21-1 should be charged as an additional element.