MAINTAINING OR OPERATING A
CONTROLLED DANGEROUS
SUBSTANCE PRODUCTION FACILITY
(N.J.S.A. 2C:35-4) model jury charge
Count
of the indictment charges the defendant with
the crime of maintaining or operating a controlled dangerous substance
production facility. That section of our statutes provides in pertinent part
that:
Any person who knowingly maintains or operates any
premises, place, or facility used for the manufacture of [choose appropriate
CDS or controlled substance analog] methamphetamine, lysergic acid
diethylamide, phencyclidine, or marijuana in an amount greater than five pounds
or ten plants of any substance listed in Schedule I or II or any drug or
substance which, when ingested, is metabolized or otherwise becomes a
controlled dangerous substance in the human body[1], or the
analog of any such substance, or any person who knowingly aids, promotes,
finances or otherwise participates in the maintenance or operations of such
premises, place or facility is guilty of a crime . . .
In
order to convict the defendant of this charge, the State must prove each of the
following elements beyond a reasonable doubt:
(1) That the defendant maintained or
operated, or aided, promoted, financed or otherwise participated in the
maintenance or operation of, a premises, place, or facility. To maintain means
to carry on, to keep up, to continue.[2] In order
for the State to prove that the defendant maintained the premises, place or
facility, there must be evidence of continuity in the use of the (name
location of facility) to manufacture (insert appropriate controlled
dangerous substance).[3]
(2) That the premises, place or facility was
used for the manufacture of [insert appropriate controlled dangerous
substance or controlled substance analog].
Manufacture means the production, preparation, propagation,
compounding, conversion or processing of a controlled dangerous substance or
controlled substance analog, either directly or by extraction from substances
of natural origin, or independently by means of chemical synthesis, and
includes any packaging or repackaging of the substance or labeling or
relabeling of its container.[4]
(3) That the defendant acted knowingly. 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. Knowledge is a condition of the mind that cannot be seen and
can only be determined by inference from conduct, words or acts. Therefore, it
is not necessary that witnesses be produced by the State to testify
that a defendant said that he/she knowingly did
something. His/Her knowledge may
be gathered from his/her acts and his/her conduct and from all he/she said and did
at the particular time and place and from all the surrounding circumstances
reflected in the testimony [and evidence adduced at trial].
If you
find that the State has proven each of these elements beyond a reasonable
doubt, then you must find the defendant guilty of the charge. If you find that
the State has failed to prove any of these elements beyond a reasonable doubt,
then you must find the defendant not guilty.
[3] When the allegation is that the
defendant was apprehended the first time that (he/she) operated a manufacturing
facility, the jury should be instructed that to convict the defendant, there must
be evidence that the defendant intended to operate the manufacturing facility
on more than one occasion. State v. Kittrell, 145 N.J. at 122.
