POSSESSION OF AN IMITATION CONTROLLED
DANGEROUS SUBSTANCE
WITH INTENT TO
DISTRIBUTE
(N.J.S.A. 2C:35‑11) 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:35‑11)
on which this indictment is based reads as follows:
a. It
is unlawful for any person . . . to possess or have under his control with
intent to distribute any substance which is not a controlled dangerous
substance or controlled substance analog:
[Read Appropriate
Section or Section of the Statute][1]
(1) Upon the express or implied representation to
the recipient that the substance is a controlled dangerous substance [or
controlled substance analog]; or
(2) Upon the express or implied representation to
the recipient that the substance is of such nature, appearance or effect that
the recipient will be able to distribute or use the substance as a controlled
dangerous substance [or controlled substance analog]; or
(3) Under circumstances which would lead a
reasonable person to believe that the substance is a controlled dangerous
substance [or controlled substance analog].
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 not a controlled dangerous
substance or controlled substance analog.
2. A. The defendant
made an expressed or implied representation to the recipient that S in evidence is a controlled dangerous
substance, specifically (e.g., cocaine)
or
B. The defendant made an expressed or
implied representation to the recipient that S in evidence is of such nature, appearance or
effect that the recipient will be able to distribute or use S in evidence as a controlled dangerous
substance, specifically (e.g., cocaine).
or
C. The defendant possessed or had under his/her control with intent to
distribute S in evidence under circumstances which would
lead a reasonable person to believe that the substance is a controlled
dangerous substance, specifically (e.g., cocaine).
3. The defendant possessed, or had under his/her control, S in evidence.
4. The defendant, when he/she possessed or had under his/her control S________ in
evidence, had the intent to distribute S in evidence.
As I have stated, the first element is that S in evidence is not a controlled dangerous
substance or controlled substance analog.
Controlled dangerous substances are defined in another part of our
law. A controlled substance analog is a
substance that (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 dangerous substance.[2] You have
heard testimony in this case that S in evidence is . It is, of course, up to you to
determine whether this testimony is credible.
However, I instruct you that is not a controlled dangerous substance. You have also heard testimony that is not a controlled substance analog in that
it would not produce an effect substantially similar to that of a controlled
dangerous substance and that it was not specifically designed to produce such
an effect. Again, it is solely up to you
to determine whether this testimony is credible.
In regard to the second element as I
have instructed you, you must decide whether the State has proven beyond a
reasonable doubt (charge appropriate section or sections):
That either:
A. The defendant made an expressed or
implied representation to the recipient that S in evidence is a controlled dangerous
substance, specifically (e.g., cocaine)
or
B. The defendant made an expressed or
implied representation to the recipient that S in evidence is of such nature, appearance or
effect that the recipient will be able to distribute or use S in evidence as a controlled dangerous
substance, specifically (e.g., cocaine).
or
C. The defendant possessed or had under his/her control with intent to
distribute S in evidence
under circumstances which would lead a reasonable person to believe that the
substance is a controlled dangerous substance, specifically (e.g., cocaine).
[In determining whether the circumstances were such as to
lead a reasonable person to believe that S is a controlled dangerous substance,
specifically (e.g., cocaine), you should of course consider all the
evidence including whether S was packaged in a manner normally used for the
unlawful distribution of controlled dangerous substances; whether any
distribution or attempted distribution of S was accompanied by an exchange of or demand
for money or other thing as consideration for S and the value of the consideration exceeded
the reasonable value of S and
whether the physical appearance of S is substantially the same as that of a
specific controlled dangerous substance.[3]]
[Note: When it is charged that the substance is an
imitation of a controlled dangerous substance analog, the following
charge, rather than the one set forth above, should be given as the instruction
on the second element of the offense.]
In regard to the second element as I have instructed you,
you must decide whether the State has proven beyond a reasonable doubt [charge
appropriate section or sections]:
A. The defendant made an expressed or
implied representation to the recipient that S in evidence is a controlled substance analog, i.e.
the defendant expressly or impliedly represented that S in evidence has a chemical structure
substantially similar to (e.g. cocaine) and that S in evidence was specifically designed
to produce an effect substantially similar to that of (e.g. cocaine).
or
B. The defendant made an expressed or
implied representation to the intended recipient that S is of such a nature or effect that the
recipient will be able to distribute or use S in evidence as a controlled substance analog, i.e.
the defendant expressly or impliedly represented that the recipient will be
able to distribute or use S as a substance that has a chemical structure
substantially similar to (e.g. cocaine) and as a substance that was
specifically designed to produce an effect substantially similar to (e.g.
cocaine).
or
C. The defendant possessed or had under his/her control with intent to
distribute S in evidence under circumstances which would
lead a reasonable person to believe that the S in evidence is a controlled substance analog, i.e.
that S in evidence is a controlled structure
substantially similar to that of (e.g. cocaine) that S in evidence was specifically designed to
produce an effect substantially similar to (e.g. cocaine).
[In determining whether the circumstances were such as to
lead a reasonable person to believe that S is a controlled substance analog, you should,
of course, consider all the evidence, including whether S was packaged in a manner normally used for the
unlawful distribution of controlled dangerous substances or controlled
substance analogues; whether any distribution or attempted distribution of S was accompanied by an exchange of or demand
for money or other thing as consideration for S , and the value of the consideration
exceeded the reasonable value of S ; and whether the physical
appearance of S is substantially the same as that of a
specific controlled dangerous substance or controlled substance analog.[4]
In regard to the third element, that the defendant
possessed or had under his/her control S in evidence, "possess" means
(charge definition of possession).
It should be noted that the law provides that it shall
not be a defense that the defendant mistakenly believed a substance to be a
controlled dangerous substance [or controlled substance analog].[5] Thus, if you were to find that the defendant
exercised or intended to exercise dominion and control over S in evidence but mistakenly believed that S in evidence was a controlled dangerous
substance [or controlled substance analog], the defendant's mistaken belief as
to the character of S in evidence would not prevent you from finding
that he/she knowingly possessed S in evidence.
In regard to the fourth element, that the defendant had
the intent to distribute S in evidence, "distribute" means the
transfer, actual, constructive or attempted, from one person to another of an
item.[6] It is not necessary that the item be
transferred in exchange for payment or promise of payment of money or anything
of value.[7]
"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
act, 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 and
packing of S together with all of the other evidence in the
case to aid you in your determination of the element of intent to distribute.[8]
To reiterate, the four elements of
this offense are that:
1. S in evidence is not a controlled dangerous
substance or controlled dangerous analog.
2. A.
The defendant made an expressed or implied representation to the
recipient that S in evidence is a controlled dangerous
substance, specifically (e.g., cocaine)
or
B. The defendant made an expressed or implied
representation to the recipient that S in evidence is of such nature, appearance or
effect that the recipient will be able to distribute or use S in evidence as a controlled dangerous
substance, specifically (e.g., cocaine).
or
C. Defendant possessed or had under his/her control with intent to
distribute S in evidence under circumstances which would
lead a reasonable person to believe that the substance is a controlled
dangerous substance, specifically (e.g., cocaine).
3. The defendant possessed or had under his/her control, S______ in
evidence; and
4. The defendant had the intent to
distribute S in evidence.
If you find that the State had proven all these elements
beyond a reasonable doubt, then you must return a verdict of guilty. On the
other hand, if you find the State has failed to prove any of these elements
beyond a reasonable doubt, then you must return a verdict of not guilty.
[1] The
statute provides that this offense may be committed in three ways; that is by
representation that the substance is a CDS, by representation that the
substance can be used or distributed as a CDS, and under circumstances under
which a reasonable person would believe the substance to be a CDS. The circumstances of the case will determine
which one (or more) of these sections should be charged.
[3] N.J.S.A.
2C:35‑11a(3)(a) through (c). This
language only should be charged when the third alternative is applicable.
[4] N.J.S.A.
2C:35-11A(3)(A) through (C). This language only should be charged when the
third alternative is applicable.
[6] This
definition is taken from the definitions of "distribute" and
"deliver" set forth in N.J.S.A. 2C:35‑2.