(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 manufacture ... 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 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 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.
That the defendant manufactured S on the date alleged in the
indictment.
3. That the defendant acted knowingly or
purposefully in manufacturing
S__________.
[When it is
alleged that a controlled substance analog has been manufactured 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 manufactured 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 "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 or natural origin, or independently by means of
chemical synthesis, or by a combination of extraction and chemical synthesis, and
includes any packaging or repackaging of the substance or labeling or re‑labeling
of its contained, except that this term does not include the preparation of
compounding of a controlled dangerous substance (or controlled substance)
analog by an individual for his/her own use or the preparation, compounding, packaging, or labeling of a
controlled dangerous substance: (1) by a practitioner as an incident to his/her administering or dispensing of a controlled dangerous substance or controlled
substance analog in the course of his/her professional practice, or (2) by a practitioner (or under his/her supervision) for the purpose of, or as an incident to, research,
teaching or chemical analysis and not for sale.[4]
In
this regard the term "practitioner" means a physician, dentist,
veterinarian, scientific investigator, laboratory, pharmacy, hospital or other
person licensed, registered, or otherwise permitted to distribute, dispense, conduct
research with respect to, or administer a controlled dangerous substance (or
controlled substance analog) in the course of professional practice or research
in this State.[5]
In
regard to the third element, the State must prove, as I have stated, that the
defendant acted knowingly or purposefully in manufacturing 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 were 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 manufactured S on the date alleged in the indictment.
3. That the defendant acted knowingly or
purposefully in manufacturing
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 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 manufactured. 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.