DISTRIBUTING OR DISPENSING CONTROLLED
DANGEROUS SUBSTANCES NEAR OR ON SCHOOL PROPERTY USED FOR SCHOOL PURPOSES
(N.J.S.A. 2C:35-7) model jury charge
The defendant is charged with (distributing) (dispensing)
a controlled dangerous substance near or on school property, used for school
purposes. The statute upon which this
charge is based reads, in its pertinent part, as follows:
Any
person who violates [another section of our law] by distributing or dispensing
a controlled dangerous substance [or controlled substance analog] while on any
school property used for school purposes which is owned by any elementary or
secondary school or school board, or within 1,000 feet of any school property
or school bus, or while on any school bus, is guilty of a crime...
In order
for you to find the defendant guilty of this charge, the State must first prove
beyond a reasonable doubt that the defendant knowingly or purposely distributed
or dispensed a controlled dangerous substance (or controlled substance
analog). As I have previously instructed
you, the elements of distributing or dispensing a controlled dangerous
substance are:
(1)
S_______ is (insert appropriate controlled dangerous substance or controlled
substance analog)
(2) That the defendant distributed
S_______ on the date alleged in the indictment.
(3) That the defendant acted
knowingly or purposely in doing so.
In
addition to proving the distribution or dispensing, the State must also prove
beyond a reasonable doubt that this act occurred:
(CHARGE APPROPRIATE TERM)
on (or within 1,000 feet of) any school property
OR
on (or within 1,000 feet of) a school bus.
The
term school property means any property which is used for school purposes and
is owned by or leased to an elementary school, secondary school or school
board.[1] The 1,000 feet
zone extends from the outermost boundary of the school property and not from
the school building itself. It does not
matter whether the school is public, private or parochial. It is also no defense to this charge that no
juveniles were present on the school property at the time of the offense, or
that the school was not in session.
The
possibility that defendant may have been unaware that the prohibited conduct
took place on or within 1,000 feet of school property is not a defense to this
crime[2] and shall not be considered by you in your
deliberations.
(CHARGE WHERE APPROPRIATE)
[It
is affirmative defense that the crime took place entirely within a private
residence. This defense does not apply
if any person 17 years or younger was present anywhere in the residence at any
time during the commission of the offense or if the offense was committed for
profit. This defense must be proven by
the defendant by a preponderance of the evidence. Therefore, if you find that it is more likely
than not that:
(1) The offense took place totally within a private residence; and
(2) no person 17 years of age or younger was
present anywhere in the residence at any time during the commission of the
offense; and
(3) the offense was not committed for profit,
then you must find the defendant not guilty.
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 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.
[1] Where there is a question whether the
property was used for school purposes charge the following:
"In addition to determining
whether property is school property, you must determine the purpose for which
it is used. You must decide whether the
property is regularly, consistently, and actually used for school purposes, and
whether the property's appearance would give an objectively reasonable person
reason to know that it was used regularly, consistently, and actually for
school purposes." State v. Ivory,
124 N.J. 582, 587, 592 (1991).
[2] The statute eliminates this defense
only in cases involving school property and does not eliminate such a defense
in cases in which the prohibited conduct occurred on or within 1,000 feet of a
school bus.