POSSESSION OF A
CONTROLLED DANGEROUS SUBSTANCE WITH INTENT
TO DISTRIBUTE
IN PROXIMITY TO PUBLIC HOUSING FACILITIES,
PARKS OR
BUILDINGS[1]
(N.J.S.A.
2C:35-7.1) model jury charge
Count _______ of the indictment
charges the defendant with possession of a controlled dangerous substance with
intent to distribute in proximity to Public Housing Facilities, Parks or
Buildings.
(Read
Indictment)
The
pertinent part of the statute upon which this count of the indictment is based
reads as follows:
Any person who
violates [another section of our law] by possessing with intent to distribute a
controlled dangerous substance [or controlled substance analog] while in, on or
within 500 feet of the real property comprising a Public Housing Facility,
Public Park, or a Public Building is guilty of a crime.
As I have already explained, (Insert
appropriate CDS, e.g. heroin, cocaine, etc.) is a dangerous
substance prohibited by the statute.[2]
In order for you to find the
defendant guilty of this count of the indictment, the State must first prove
beyond a reasonable doubt that the defendant knowingly or purposely possessed
with intent to distribute a controlled dangerous substance (or controlled
substance analog). As I have previously instructed you, the elements of
possession with intent to distribute a controlled dangerous substance are:[3]
(1) S______
in evidence is (insert appropriate CDS or controlled substance analog)
(2) The
defendant possessed or had S______ under his/her
control
(3) The defendant had the purpose to
distribute S______ when he/she possessed
it or had it under his/her control.
In addition to proving the elements
of possession with intent to distribute a controlled dangerous substance, to
establish the defendant’s guilt on this count, the State must also prove beyond
a reasonable doubt that when the defendant possessed a controlled
dangerous substance with
intent to distribute, he/she was:
[CHARGE AND DEFINE
APPLICABLE TERM]
in (or within 500
feet of) any Public Housing Facility
OR
in (or within 500
feet of) any Public Park
OR
in (or within 500
feet of) any Public Building
“Public
Housing Facility” means any dwelling, complex of dwellings, accommodation,
building, structure or facility and real property of any nature appurtenant
thereto and used in connection therewith, which is owned by or leased to a
local housing authority in accordance with the “Local Redevelopment and Housing
Law,” [P.L. 1992, c.79 (C.40A:12A-1 et seq.)] for the purpose of
providing living accommodations to persons of low income.
“Public park” means a park, recreation
facility or area or playground owned or controlled by a State, county or local
government unit.
“Public Building” means any publicly
owned or leased library or museum.
The possibility that defendant may
have been unaware that the prohibited conduct took place in or within 500 feet
of a Public Housing Facility, Public Park or Public Building is not a defense
to this crime and shall not be considered by you in your deliberations. I further instruct you that whether defendant
intended to make the distribution within 500 feet of the public property is
irrelevant. To prove this element, the State must prove beyond a reasonable
doubt that when the defendant possessed a controlled dangerous substance with intent to distribute, he/she was in or within 500 feet of a Public Housing Facility, Public Park
or Public Building.
To reiterate, in order for you to
find the defendant guilty of this count of the indictment, the State must prove
all of the following elements beyond a reasonable doubt:
(1) S_______
in evidence is (insert appropriate CDS or controlled substance analog)
(2) The
defendant possessed or had S_______ under his/her
control
(3) The
defendant had the purpose to distribute S_______ when he/she possessed it or had it under his/her
control.
(4) That
when the defendant possessed S with the purpose to distribute it, he/she was in or within 500 feet of a [charge as appropriate: Public
Housing Facility, Public Park or Public Building].
If you find that the State has
proven all of 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.
[SUBSTITUTE
WHERE APPROPRIATE]
The Defendant, as part of his/her
general denial of guilt, asserts the defense that he/she did not possess with intent to distribute [insert
appropriate CDS] for profit and that he/she did not possess with intent to distribute [insert
appropriate CDS] to a person 17 years or younger. In order for this defense to be available,
the defendant must prove by a preponderance of the evidence, that is, it is
more likely true than not, that:
(1) The
offense did not involve distribution of a controlled dangerous substance for
profit
AND
(2) The
offense did not involve distribution to a person 17 years of age or younger
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 the elements of this crime beyond a
reasonable doubt, and also find that the defendant has failed to prove all of
the elements of this defense by a preponderance of the evidence, then you must
return a verdict of guilty. On the other
hand, if you find that the State has failed to prove any of the elements of the
crime beyond a reasonable doubt, or that defendant has proved all of the
elements of the defense by a preponderance of the evidence, then you must
return a verdict of not guilty.
(TO BE UTILIZED IN CASES IN WHICH THE QUANTITYOF
MARIJUANA IS AN ELEMENT OF THE OFFENSE)
If
you have found the defendant guilty of possession of marijuana with intent to
distribute in or within 500 feet of a Public Housing Facility, Public Park or Public
Building, you then must determine whether the State has proven beyond a
reasonable doubt that the quantity of marijuana involved was:
One
(1) ounce or more of marijuana including any adulterants and dilutants. (Yes
or No)
After
determining if the State has proven this quantity beyond a reasonable doubt,
you should mark the appropriate section of the verdict sheet which will be
supplied to you.
[1] This
instruction is meant to be given as a supplement to the instructions on
unlawful possession of CDS and possession of CDS with intent to distribute. In
cases where those charges are not present, definitions of key terms must be
incorporated here.
[2] When a
controlled dangerous substance analog is involved, refer to the definition
found in N.J.S.A. 2C:35-2.
[3] If applicable, lack of legal authorization
pursuant to N.J.S.A. 24:21-1 should be charged as an additional element.