POSSESSION WITH INTENT
TO DISTRIBUTE
CONTROLLED DANGEROUS
SUBSTANCES NEAR OR ON SCHOOL PROPERTY
USED FOR SCHOOL PURPOSES
(N.J.S.A. 2C:35-7) model jury charge
The defendant is charged with
possessing with intent to distribute a controlled dangerous substance near or
on school property, used for school purposes.
The statute upon which this charge is based reads, in its pertinent
part, 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 on any
school property used for school purposes which is owned by any elementary or
secondary school or school board, or within 1,000 feet of any school property
or school bus, or while on any school bus, is guilty of a crime. . .
In order for you to find the
defendant guilty of this charge, 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 are:
1. S_______
in evidence is (insert appropriate CDS or CDS analog.)
2. The
defendant possessed or had under his/her
control S_______.
had it under his/her
control.
4. That
the defendant acted knowingly or purposely in doing so.
In addition to proving the possession
with intent to distribute, the State must also prove beyond a reasonable doubt
that this act occurred:
(CHARGE
APPROPRIATE TERM)
on (or
within 1,000 feet of) any school property
OR
on (or
within 1,000 feet of) a school bus.
The
term school property means any property which is used for school purposes and
is owned by or leased to an elementary school, secondary school or school
board.[1] The 1,000 feet zone extends from the
outermost boundary of the school property and not from the school building
itself. It does not matter whether the
school is public, private or parochial.
It is also no defense to this charge that no juveniles were present on
the school property at the time of the offense, or that the school was not in
session.
The possibility that defendant may
have been unaware that the prohibited conduct took place on or within 1,000
feet of school property is not a defense to this crime[2] and
shall not be considered by you in your deliberations. I further charge you that whether the
defendant intended to make the distribution within 1,000 feet of the school is
irrelevant.
(CHARGE
WHERE APPROPRIATE)
[It is an affirmative defense that
the crime took place entirely within a private residence. This defense does not apply if any person 17
years or younger was present anywhere in the residence at any time during the
commission of the offense or if the offense was committed for profit. This defense must be proven by the defendant
by a preponderance of the evidence.
Therefore, if you find that it is more likely than not that:
1. The offense took place totally within a private residence;
and
2. no person 17 years of age or younger was present anywhere in
the residence at any time during the commission of the offense; and
3. the offense was not committed for profit, then you must find
the defendant not guilty.
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
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] Where
there is a question whether the property was used for school purposes charge
the following:
"In addition to determining whether
property is school property, you must determine the purpose for which it is
used. You must decide whether the
property is regularly, consistently, and actually used for school purposes, and
whether the property's appearance would give an objectively reasonable person
reason to know that it was used regularly, consistently, and actually for
school purposes." State v. Ivory,
124 N.J. 582, 587, 592 (1991).
[2] The
statute eliminates this defense only in cases involving school property and
does not eliminate such a defense in cases in which the prohibited conduct
occurred on or within 1,000 feet of a school bus.