POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT
TO DISTRIBUTE (NJSA 2C:35-5) 2017 law
If someone is
Indicted for Possession of Drugs with Intent to Distribute, the Judge will read
portions of the following to the Jury. They are called request to charge.
Count of the
indictment charges the defendant as follows:
(Judge Reads Indictment)
The pertinent
part of the statute (N.J.S.A. 2C:35-5)1 on which this indictment is based reads
as follows:
Except as authorized by (statute), it shall be unlawful for
any person knowingly or purposely ... to possess or have under his control with
intent to ... distribute a controlled dangerous substance (or controlled
substance analog).2
The various
kinds of substances are defined in another part of our statute. (Insert
appropriate CDS, e.g., heroin, cocaine, etc.) is a dangerous substance
prohibited by statute. (The defendant
does not claim legal authorization, so the exceptions in the statute are not
applicable in this case.)
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. The substance in evidence is (insert appropriate CDS or
controlled substance analog).
2. The defendant possessed, or had under (his/her) control,
S in evidence. 3. The defendant, when
(he/she) possessed or had under (his/her) control S in evidence, had the intent to distribute
S in evidence.
4. That the defendant acted knowingly or purposefully in
possessing or having under(his/her) control with intent to distribute S in
evidence.
[when it is
alleged that a controlled substance analog was possessed with intent to
distribute the following definition of controlled substance analog should be
charged]:
In regard to
the first element, 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.
In regard to
the second element, that the defendant had under (his/her) control or possessed
S in evidence, "possess" means (charge definition of
possession). In regard to the third
element, that the defendant had the intent to distribute S in evidence,
"distribute" means the transfer, actual, constructive or attempted,4
from one person to another of a controlled dangerous substance (or controlled
substance analog). It is not necessary that the drugs be transferred in
exchange for payment or promise of payment of money or anything of value.
5 "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 acts, 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, purity, and packaging6 of S together
with all the other evidence in the case to aid you in your determination of the
element of intent to distribute. In
regard to the fourth element, the State must prove, as I have stated, that the
defendant acted knowingly or purposefully in having under (his/her) control or
possessing S with intent to distribute.
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 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.7
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 of
(he/she) believes or hopes that they exist.
"With purpose," "designed," "with design"
or equivalent terms have the same meaning.8 The terms "knowingly" and
"purposefully," like intent, refer to conditions of the mind that
cannot be seen. It is not necessary for the State to prove the existence of
such mental states by direct evidence such as a statement by the defendant that
(he/she) had particular knowledge or a particular purpose. Knowledge and
purpose as separate propositions of
proof do not commonly exist. They must ordinarily be
discovered as other mental states are from circumstantial evidence; that is, by
reference to the defendant's conduct, words or acts and all the surrounding
circumstances.
To reiterate,
the four elements of this offense are that:
1. The
substance in evidence is (insert appropriate CDS or controlled substance
analog).
2. The defendant
possessed, or had under (his/her) control, S in evidence.
3. The
defendant had the intent to distribute S in evidence.
4. That the
defendant acted knowingly or purposely in possessing or having under (his/her)
control with 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 that the
State has failed to prove any of these elements beyond a reasonable doubt, then
you must return a verdict of not guilty.
1 N.J.S.A. 2C:35-5 grades this offense for sentencing
purposes by the type, quantity and purity of the CDS involved. In certain
cases, the defendant is guilty of an offense regardless of the quantity and
purity of the CDS distributed. This charge is sufficient for such cases.
However, in cases in
which the quantity and/or purity of the CDS is an element of
the offense, N.J.S.A. 2C:35-5c requires that this element be determined by the
jury. In such a case, this charge would have to be supplemented to add this
element. Please see the supplementary model charge concerning this.
2 To be charged when the indictment alleges possession with
intent to distribute a controlled substance analog.
3 N.J.S.A. 2C:35-2.
4 This definition is taken from the definitions of
"distribute" and "deliver" set forth in N.J.S.A. 2C:35-2.
5 State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div.
1986), aff'd 107 N.J. 603 (1987).
6 See State v. Perez, 218 N.J. Super. 478, 482-486 (App.
Div. 1987).
7 N.J.S.A. 2C:2-2b(1).
8 N.J.S.A. 2C:2-2b(2)
Our office represents persons charged
with criminal offenses. Criminal and Motor vehicle violations can cost you. If
convicted, you will have to pay high fines in court, face probation, jail and
other serious penalties that will effect future employment.
Hire a Trial
Attorney To Represent You If Charged With a Criminal Or Serious Motor Vehicle
Matter. Kenneth Vercammen's Law office represents individuals charged with
criminal, drug offenses, and serious traffic violations throughout New Jersey.
When your job or
driver's license is in jeopardy or you are facing thousands of dollars in fines
and potential jail, you need excellent legal representation. The least
expensive attorney is not always the answer. Schedule a free in-office
consultation if you need experienced legal representation in a
traffic/municipal court matter.
Our website www.njlaws.com provides details on jail
terms for criminal offenses. Call the
Law Office of Kenneth Vercammen at 732-572-0500
to schedule a free in-office consultation to hire a trial attorney for
Criminal/ DWI/ Municipal Court Traffic/ Drug offenses. Please call us to schedule an appointment if
you need experienced legal representation in a criminal matter. Save this
letter for future reference.
Very
truly yours,
Kenneth Vercammen
KENNETH
VERCAMMEN, Criminal Trial Attorney
past
NJSBA “Municipal Court Attorney of the Year”
Former
Prosecutor of Cranbury Municipal Court and co-Author of: "Handling Drug
and DWI Cases." Celebrating 25+
years of providing excellent service to clients since 1985. We fight to win!
3rd degree black belt, triathlon competitor and member of state champion
Masters racing team. Always competitive!
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053
Woodbridge Ave.
Edison, NJ
08817
732-572-0500
www.njlaws.com
2017 statute
2C:35-5
. Manufacturing, distributing or
dispensing
2C:35-5
. Manufacturing, Distributing or
Dispensing. a. Except as authorized by P.L.1970, c.226 (C.24:21-1
et seq.), it shall be unlawful for any person knowingly or purposely:
. Manufacturing, distributing or
dispensing
2C:35-5. Manufacturing, Distributing or
Dispensing. a. Except as authorized by P.L.1970, c.226 (C.24:21-1
et seq.), it shall be unlawful for any person knowingly or purposely:
(1) To manufacture, distribute or
dispense, or to possess or have under his control with intent to manufacture,
distribute or dispense, a controlled dangerous substance or controlled
substance analog; or
(2) To create, distribute, or possess
or have under his control with intent to distribute, a counterfeit controlled
dangerous substance.
b.
Any person who violates subsection a. with
respect to:
(1) Heroin, or its analog, or coca
leaves and any salt, compound, derivative, or preparation of coca leaves, and
any salt, compound, derivative, or preparation thereof which is chemically
equivalent or identical with any of these substances, or analogs, except that
the substances shall not include decocainized coca leaves or extractions which
do not contain cocaine or ecogine, or 3,4-methylenedioxymethamphetamine
or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more
including any adulterants or dilutants is guilty of a crime of the first
degree. The defendant shall, except as provided in N.J.S.2C:35-12, be
sentenced to a term of imprisonment by the court. The term of
imprisonment shall include the imposition of a minimum term which shall be
fixed at, or between, one-third and one-half of the sentence imposed, during
which the defendant shall be ineligible for parole. Notwithstanding the
provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may
be imposed; 
(2) A substance referred to in
paragraph (1) of this subsection, in a quantity of one-half ounce or more but
less than five ounces, including any adulterants or dilutants is guilty of a
crime of the second degree; 
(3) A substance referred to in
paragraph (1) of this subsection in a quantity less than one-half ounce
including any adulterants or dilutants is guilty of a crime of the third degree
except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3,
a fine of up to $75,000.00 may be imposed;
(4) A substance classified as a
narcotic drug in Schedule I or II other than those specifically covered in this
section, or the analog of any such substance, in a quantity of one ounce or
more including any adulterants or dilutants is guilty of a crime of the second
degree;
(5) A substance classified as a
narcotic drug in Schedule I or II other than those specifically covered in this
section, or the analog of any such substance, in a quantity of less than one
ounce including any adulterants or dilutants is guilty of a crime of the third
degree except that, notwithstanding the provisions of subsection b. of
N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed; 
(6) Lysergic acid diethylamide, or its
analog, in a quantity of 100 milligrams or more including any adulterants or
dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more
including any adulterants or dilutants, is guilty of a crime of the first
degree. Except as provided in N.J.S.2C:35-12, the court shall impose a term of
imprisonment which shall include the imposition of a minimum term, fixed at, or
between, one-third and one-half of the sentence imposed by the court, during
which the defendant shall be ineligible for parole. Notwithstanding the
provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may
be imposed;
(7) Lysergic acid diethylamide, or its
analog, in a quantity of less than 100 milligrams including any adulterants or
dilutants, or where the amount is undetermined, or phencyclidine, or its
analog, in a quantity of less than 10 grams including any adulterants or
dilutants, or where the amount is undetermined, is guilty of a crime of the
second degree; 
(8) Methamphetamine, or its analog, or
phenyl-2-propanone (P2P), in a quantity of five ounces or more including any
adulterants or dilutants is guilty of a crime of the first degree.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up
to $300,000.00 may be imposed;
(9) (a) Methamphetamine, or its
analog, or phenyl-2-propanone (P2P), in a quantity of one-half ounce or more
but less than five ounces including any adulterants or dilutants is guilty of a
crime of the second degree;
(b) Methamphetamine, or its analog, or
phenyl-2-propanone (P2P), in a quantity of less than one-half ounce
including any adulterants or dilutants is guilty of a crime of the third degree
except that notwithstanding the provisions of subsection b. of
N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(10) (a) Marijuana in a quantity
of 25 pounds or more including any adulterants or dilutants, or 50 or more
marijuana plants, regardless of weight, or hashish in a quantity of five pounds
or more including any adulterants or dilutants, is guilty of a crime of the
first degree. Notwithstanding the provisions of subsection a. of
N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;
(b) Marijuana in a quantity of five
pounds or more but less than 25 pounds including any adulterants or dilutants,
or 10 or more but fewer than 50 marijuana plants, regardless of weight, or
hashish in a quantity of one pound or more but less than five pounds, including
any adulterants and dilutants, is guilty of a crime of the second degree;
(11) Marijuana in a quantity of one
ounce or more but less than five pounds including any adulterants or dilutants,
or hashish in a quantity of five grams or more but less than one pound
including any adulterants or dilutants, is guilty of a crime of the third
degree except that, notwithstanding the provisions of subsection b. of
N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; 
(12) Marijuana in a quantity of less
than one ounce including any adulterants or dilutants, or hashish in a quantity
of less than five grams including any adulterants or dilutants, is guilty of a
crime of the fourth degree; 
(13) Any other controlled dangerous
substance classified in Schedule I, II, III or IV, or its analog, is guilty of
a crime of the third degree, except that, notwithstanding the provisions of
subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or 
(14) Any Schedule V substance, or its
analog, is guilty of a crime of the fourth degree except that, notwithstanding
the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00
may be imposed. 
c.
Where the degree of the offense for violation
of this section depends on the quantity of the substance, the quantity involved
shall be determined by the trier of fact. Where the indictment or
accusation so provides, the quantity involved in individual acts of
manufacturing, distribution, dispensing or possessing with intent to distribute
may be aggregated in determining the grade of the offense, whether distribution
or dispensing is to the same person or several persons, provided that each
individual act of manufacturing, distribution, dispensing or possession with
intent to distribute was committed within the applicable statute of
limitations.