UNLAWFUL
POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE
Count of the indictment charges the defendant with
unlawful possession of a controlled dangerous substance.
(Read Count)
The statute upon which
this count of the indictment is based states in pertinent part:
It is unlawful for any
person knowingly or purposely, to obtain or to possess, actually or
constructively, a controlled dangerous substance [or controlled dangerous
substance analog].[2]
In order for you to find defendant
guilty of the charge, the State must prove the following elements beyond a
reasonable doubt:
1. S
is a
controlled dangerous substance.
OR
1. S
is a controlled substance analog.
2. That
the defendant possessed or obtained S .
3. That the defendant acted knowingly or
purposely in possessing or obtaining S _____.
The first element that the State must
prove beyond a reasonable doubt is that S ____ is CDS. Here, the State alleges that defendant
possessed (name of controlled dangerous substance).
OR
The first element that the State
must prove beyond a reasonable doubt is that S ____ is a controlled dangerous
substance analog.
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 .
The
second element that the State must prove beyond a reasonable doubt is that defendant
possessed or obtained S _________. To "obtain"
means to acquire, to get, to procure.
To “possess” an item under the law, one must have a
knowing, intentional control of that item accompanied by knowledge of its
character. So, a person who possesses an
item such as (
IDENTIFY RELEVANT ITEM(S)) must know or be aware that he/she
possesses it/them, and he/she
must know what it is that he/she
possesses or controls (that it is ).
[WHERE APPLICABLE, charge: Possession
cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to “possess” an item, one
must knowingly procure or receive an item or be aware of his/her
control thereof for a sufficient period of time to have been able to relinquish
his/her control if he/she
chose to do so.
The
State must prove beyond a reasonable doubt that a possessor acted knowingly in
possessing the item. 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 the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he/she is
aware that it is practically certain that
conduct will cause such a result.
Knowing, with knowledge, or equivalent terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by
inferences from conduct, words or acts. Therefore, it is not necessary for the
State to produce witnesses to testify that a particular defendant stated, for example,
that he/she acted
with knowledge when he/she had
control over a particular thing. It is
within your power to find that proof of knowledge has been furnished beyond a
reasonable doubt by inference which may arise from the nature of the acts and
the surrounding circumstances.
A
person may possess (an item) even though it was not physically on
his/her person at the time of the arrest, if he/she had in
fact, at some time prior to his/her arrest and control over it.
Possession
means a conscious, knowing possession, either actual or constructive.
[CHARGE
THOSE FOLLOWING PARAGRAPHS WHICH APPLY TO YOUR CASE]
ACTUAL POSSESSION
A person is in
actual possession of an item when he/she
first, knows what it is: that is, he/she has knowledge of its character, and second, knowingly has
it on his/her
person at a given time.
Possession may be
constructive instead of actual. As I
just stated, a person who, with knowledge of its character, knowingly has
direct physical control over an item at a given time is in actual possession of
it.
Constructive
possession means possession in which the possessor does not physically have the
item on his or her person but is aware that the item is present and is able to and
has the intention to exercise control over it.
So, someone who has knowledge of the character of an item and knowingly
has both the power and the intention at a given time to exercise control over
it, either directly or through another person or persons, is then in
constructive possession of that item.
JOINT POSSESSION
Possession may be
sole or joint. If one person alone has
actual or constructive possession of an item, possession is sole. If two or more persons share actual or
constructive knowing possession of an item, possession is joint.
[RESUMPTION OF MAIN CHARGE]
The third element that the State
must prove beyond a reasonable doubt is that the defendant acted knowingly or
purposefully in obtaining or possessing S . 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.[5]
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.[6]
Knowledge and purpose are conditions of
the mind. They cannot be seen and can
only be determined by inferences from conduct, words or acts. Therefore, it is
not necessary for the State to produce witnesses to testify that a particular
defendant stated, for example, that he/she acted with knowledge
when he/she had control over a
particular thing. It is within your
power to find that proof of knowledge has been furnished beyond a reasonable
doubt by inference which may arise from the nature of the acts and the
surrounding circumstances.
If you find that the State has
proven all of these elements beyond a reasonable doubt, then you must return a
verdict of guilty. 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.[7]
[1] To be used when the quantity of the CDS is not an element
of the offense. With the exception of
marijuana and hashish, possession of any amount of CDS is a crime. Therefore, it is not necessary for the jury
to make a finding as to quantity. In
cases involving marijuana and hashish, there is the additional element of
quantity ‑ 50 grams in respect to marijuana and 5 grams in respect to hashish. N.J.S.A.
2C:35‑10a(3). Possession of lesser
amounts of these drugs is a disorderly persons offense. N.J.S.A. 2C:35‑10a(4). Thus, in a marijuana or hashish possession
case, these additional elements must be charged, and when appropriate a charge
on the lesser included disorderly persons offense must be given. The jury should be instructed that in the
event they find the defendant guilty, they should determine whether the State
has proven beyond a reasonable doubt the specified quantity was possessed.
[2] To be charged when the indictment alleges possession of a
controlled dangerous substance analog.
[4] In State v. Spivey, 179 N.J. 229 (2004), the New Jersey Supreme
Court affirmed a conviction under N.J.S.A. 2C:39-4.1(a), Possession of a
Firearm While Committing Certain Drug Offenses.
There, the Court noted that the statute suggests a temporal and spatial
link between possession of the firearm and the drugs. The Court held: “The evidence must permit the
jury to infer that the firearm was accessible for use in the commission of the
[drug] crime.” In the appropriate case,
therefore, the possession charge may be supplemented by this language.
[7] N.J.S.A. 2C:35‑10 provides that if this offense is
committed on, or within 1,000 feet of school property or a school bus, and if
the defendant is not sentenced to a term of imprisonment, the defendant's
sentence must include 100 hours of community service. It is an open question whether the
mandatory community service sentencing provision of N.J.S.A. 2C:35-10(a)
would be considered an element of the offense that would then be required to be
found by a jury prior to imposition.
