IN
N.J.S.A. 2C:35-5
(To be utilized in
cases in which the quantity
of the CDS is an
element of the offense) model jury charge
[THE FOLLOWING
SHOULD BE CHARGED ONLY WHEN THE INDICTMENT
OR ACCUSATION
ALLEGES AGGREGATION OF INDIVIDUAL ACTS]
[You may
aggregate (insert the appropriate CDS or Controlled Substance analog) when you
find that separate amounts of the (insert the appropriate CDS or Controlled
Substance analog) were obtained/possessed or distributed or manufactured
according to a scheme or course of conduct either by one or several, or all of
the defendants. If you determine that
the (insert the appropriate CDS or Controlled Substance analog) was
obtained/possessed or distributed or manufactured according to a scheme or
course of conduct, by one, several, or all of the defendants, the weight
amounts may be added together to form a single total amount. Each defendant in the scheme or course of
conduct may be found guilty of possession/distribution/manufacture of the
aggregate quantity. The mere fact that
more than one person may be present in the same location with a controlled
dangerous substance is not enough to aggregate to all of the parties without
circumstantial evidence or statements of the defendants to show a common scheme
or joint possession.
Therefore, you should consider
everything each defendant did and said at the time and place and all the
surrounding circumstances.][2]
[THE FOLLOWING IS
TO BE CHARGED WHEN HEROIN OR COCAINE (OR
THEIR ANALOGS) IS
INVOLVED:
N.J.S.A.
2C:35-5(b)(1) - (3)]
Specifically, you must determine
which one of the following quantities have been proven:
1. Five
(5) ounces or more[3]
of (insert appropriate CDS or controlled substance analog), including any
adulterants or dilutants, (and included within this quantity were at least 3.5
grams free base drug).[4]
or
2. One-half
ounce or more, (but less than five (5) ounces),[5] of
(insert appropriate CDS or controlled substance analog) including any
adulterants or dilutants, (and included within this quantity were at least 3.5
grams or pure free base drug).[6]
or
3. Less
than one-half (½) ounce of (insert appropriate CDS or controlled substance
analog), including any adulterants or dilutants (and included within this
quantity were less than 3.5 grams of pure free base drug or an undetermined
amount of pure free base drug.) [7]
After determining which one of these
quantities the State has proven beyond a reasonable doubt, you should mark the
appropriate section of the verdict sheet which will be supplied to you.
[THE FOLLOWING IS
TO BE CHARGED WHEN A SCHEDULE I OR II DRUG (OR
ITS ANALOGS) OTHER
THAN HEROIN ORCOCAINE IS INVOLVED N.J.S.A.
2C:35-5b(4) AND
(5)]
Specifically, you must determine
whether the State has proven beyond a reasonable doubt that the quantity of the
(insert appropriate CDS or controlled substance analog) was one (1) ounce or
more, including any adulterants or dilutants, (and included within this
quantity were at least 3.5 grams of pure free base drug).[8] There will be a space on the verdict sheet on
which you should mark your decision in this regard.
[THE FOLLOWING IS
TO BE CHARGED WHEN LSD OR PHENCYCLIDINE (OR
THEIR ANALOGS) IS
INVOLVED: N.J.S.A.
2C:35-5(b)(6) AND
(7)]
Specifically, you must determine
whether the State has proven beyond a reasonable doubt that the quantity of the
(LSD or its analog) (phencyclidine or its analog) was (100 milligrams) (10
grams) or more including any adulterants or dilutants. There will be space on the verdict sheet on
which you should mark your decision in this regard.
[THE FOLLOWING IS
TO BE CHARGED WHEN METHAMPHETAMINE (OR ITS ANALOG) IS INVOLVED: N.J.S.A. 2C:35-5(b)(8) AND (9)]
Specifically, you must determine
whether the State has proven beyond a reasonable doubt that the quantity of the
methamphetamine (or its analog) was one (1) ounce or more, including any
adulterants or dilutants, (and included in this quantity were at least 3.5
grams pure free base drug).[9] There will be space on the verdict sheet on
which you should mark your decision in this regard.
[THE FOLLOWING IS
TO BE CHARGED WHEN MARIJUANA OR HASHISH IS
INVOLVED N.J.S.A. 2C:35-5(b)(10) - (12)]
Specifically, you must determine
which one of the following quantities has been proven:
1. (Five
(5) pounds) (One (1) pound) or more of (marijuana) (hashish) including any
adulterants or dilutants.[10]
or
2. (One
(1) ounce) (Five (5) grams) or more of (marijuana) (hashish) (but less than
(five (5) pounds) (one (1) pound),[11]
including any adulterants and dilutants.
or
3. Less
than (one (1) ounce) (five (5) grams) of (marijuana) (hashish) including any
adulterants and dilutants.
After
determining which one of these quantities the State has proven beyond a
reasonable doubt, you should mark the appropriate section of the verdict sheet
which will be supplied to you.
[3] This
quantity makes the offense a first degree crime. N.J.S.A. 2C:35-5b(1). In cases in which only a second degree
offense is charged (N.J.S.A. 2C:35-5b(2), this portion of the charge
should not be given. In such a second
degree case, the jury should simply be instructed to determine whether the
State has proven beyond a reasonable doubt that quantity was one-half (½) ounce
or more, including any adulterants or dilutants, (and included within this
quantity were at least 3.5 grams of pure free base drug (see footnote 4 below).
[4] As
originally enacted, N.J.S.A. 2C:35-5b(1) - (3); N.J.S.A.
2C:35-5(4) and (5); and N.J.S.A. 2C:35-5b(8) and (9) required that the
State prove that there was at least 3.5 grams pure free base drug to elevate
the degree of the crime. On June 28,
1988, L. 1988, L. 1988 c. 44 was enacted. This law made a number of amendments to the
Comprehensive Drug Reform Act. Among
these amendments were provisions deleting the requirements for proof of at
least 3.5 grams of pure free base drug.
Accordingly, this language should be charged only in cases occurring before
June 28, 1988. For cases occurring on or
after this date, the language should not be charged.
[5] The
language "but less than five (5) ounces" should be used in cases in
which a first degree offense is charged.
There is no need to include this language when only a second degree
offense is charged.
[6] As
originally enacted, N.J.S.A. 2C:35-5b(1) - (3); N.J.S.A.
2C:35-5(4) and (5); and N.J.S.A. 2C:35-5b(8) and (9) required that the
State prove that there was at least 3.5 grams pure free base drug to elevate the
degree of the crime. On June 28, 1988, L.
1988, L. 1988 c. 44 was enacted.
This law made a number of amendments to the Comprehensive Drug Reform
Act. Among these amendments were
provisions deleting the requirements for proof of at least 3.5 grams of pure
free base drug. Accordingly, this
language should be charged only in cases occurring before June 28, 1988. For cases occurring on or after this date,
the language should not be charged.
[10] This
quantity makes the offense a second degree crime. N.J.S.A. 2C:35-5b(10). In cases in which only a third degree offense
is charged (N.J.S.A. 2C:35-5b(11), this portion of the charge should not
be given. In such a third degree case,
the jury should simply be instructed to determine whether the State has proven
beyond a reasonable doubt that quantity was one (1) ounce or more in the case
of marijuana or (5) grams or more in the case of hashish.
[11] The
language "but less than (five (5) pounds) (1) pound): should be used in cases
in which a second degree offense is charged.
There is no need to include this language when a third degree offense is
charged.