POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE
WITH INTENT TO DISTRIBUTE[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 possess or have under his
control with intent 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, e.g., heroin,
cocaine, etc.) is a dangerous substance prohibited by 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. The defendant possessed, or had under his/her control, S_____ in evidence.
3. The defendant, when he/she possessed or had under his/her control S_____ in evidence, had the intent to distribute S_____ in evidence.
4. That the defendant acted knowingly or
purposefully in possessing or having under his/her control with intent to distribute S_____ in evidence.
[When it is alleged that a controlled substance analog
was possessed with intent to distribute 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, that the defendant had under his/her control or possessed S_____ in evidence, "possess" means
(charge definition of possession).
In
regard to the third element, that the defendant had the intent to distribute S_____
in evidence, "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]
"Intent"
means a purpose to do something, a resolution to do a particular act or
accomplish a certain thing. Intent is a
state of mind, and it is very rare that intent is proven by witnesses who can
testify that an accused said he/she had a certain
intent when he/she engaged in a
particular act. The intention may be
gathered from a person's acts, conduct, from all the person said and did at the
particular time and place, and from all of the surrounding circumstances.
You
may consider any evidence as to the quantity, purity, and packaging[6] of S _____
together with all the other evidence in the case to aid you in your
determination of the element of intent to distribute.
In
regard to the fourth element, the State must prove, as I have stated, that the
defendant acted knowingly or purposefully in having under his/her control or possessing S_____ with intent to distribute.
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.[7]
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.[8]
The
terms "knowingly" and "purposefully," like intent, refer to
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 four elements of this offense are that:
1. S_____ in evidence is (insert
appropriate CDS or controlled substance analog).
2. The defendant possessed, or had under his/her control, S_____ in evidence.
3. The defendant had the intent to
distribute S_____ in evidence.
4. That the defendant acted knowingly or
purposely in possessing or having under his/her control with
intent to distribute S_____ in evidence.
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.
[2] To be charged when the indictment
alleges possession with intent to distribute a controlled substance analog.
[4] This definition is taken from the
definitions of "distribute" and "deliver" set forth in N.J.S.A.
2C:35-2.
