DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE[1]
(N.J.S.A. 2C:35‑5) model jury charge
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 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, eg. heroin, cocaine, etc.) is a dangerous substance
prohibited by the 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 element 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. That
the defendant distributed S date alleged in the indictment.
3. That
the defendant acted knowingly or purposefully in distributing S .
[When it is alleged that a controlled substance analog
has been distributed 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.[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, to "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]
In
regard to the third element, the State must prove, as I have stated, that the
defendant acted knowingly or purposefully in distributing 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/she 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.[6]
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.[7]
Remember
that 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 a
controlled substance
analog).
2. That
the defendant distributed S alleged in the indictment.
3. That
the defendant acted knowingly or purposefully in distributing S .
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.
[1] N.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.
[4] This definition is taken from the
definitions of "distribute" and "deliver" set forth in N.J.S.A.
2C:35‑2.