N.J. Model Criminal Jury Charge, N.J.S.A. 2C:35-5

Approved 10/17/88

MANUFACTURING OF A CONTROLLED DANGEROUS SUBSTANCE1

(N.J.S.A. 2C:35-5)

Count of the indictment charges the defendant as follows:

(Read Indictment)

The pertinent part of the statute ( N.J.S.A. 2C:35-5) 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 manufacture ... a controlled

dangerous substance [or controlled substance analog].2

The various kinds of substances are define d in another part of our statute. (Insert

appropriate CDS, e.g., heroin, cocaine, etc.) is a dangerous substance prohibite d by the statute.

(The defendant does not claim legal authoriza tion, so the exceptions in the statute are not

applicable in this case).

The statute, read together with the indict ment, 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 (insert appropriate CDS or controlled substance

analog).

2. That the defendant manufactured S

on the date alleged in the

indictment.

3. That the defendant acted knowin gly or purposefully in manufacturing

S__________.

[When it is alleged that a cont rolled substance analog has been

manufactured the following defini tion of controlled substance

analog should be charged]

(In regard to the first element, a "controll ed substance analog" is a substance which (1)

has a chemical structure substantially similar to that of a controlled dangerous substance and (2)

1 N.J.S.A. 2C:35-5 grades this offense for sentencing purpos es 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

manufactured. 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 th e supplementary model charge

concerning this.

2 To be charged when the indictment alleges manufacture of a controlled substance analog.

MANUFACTURING OF A CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-5)

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 manufactured which is

an analog of the controlled dangero us 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 de signed to produce an effect

substantially similar to the controlled dangerous substance .)

In regard to the second element, to "manufacture" m eans the production, preparation,

propagation, compounding, conversion or processing of a controlled dangerous substance (or

controlled substance analog), either directly or by extraction from substances or natural origin, or

independently by means of chemical synthesis, or by a combination of extraction and chemical

synthesis, and includes any packag ing or repackaging of the substance or labeling or re-labeling

of its contained, except that this term does not include the preparation of compounding of a

controlled dangerous substance (or controlled substance) analog by an individual for his/her own

use or the preparation, compounding, packaging, or labeling of a controlled dangerous substance:

(1) by a practitioner as an incident to his/he r administering or dispensing of a controlled

dangerous substance or controlled substance analog in the course of his/her professional practice,

or (2) by a practitioner (o r under his/her supervision) for the purpose of, or as an incident to,

research, teaching or chemical analysis and not for sale.

4

In this regard the term "pr actitioner" means a physician, den tist, veterinarian, scientific

investigator, laboratory, pharmacy, hospital or other person licen sed, registered, or otherwise

permitted to distribute, dispense, conduct research with respect to, or administer a controlled

dangerous substance (or controlled substance anal og) in the course of professional practice or

research in this State.5

In regard to the third element, the State mu st prove, as I have stated, that the defendant

acted knowingly or purposefully in manufacturing S .

A person acts knowingly with respect to the nature of his/her conduct or the attendant

circumstances if he/she is aware th at 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 practica lly certain that his/her

3 N.J.S.A. 2C:35-2.

4 N.J.S.A. 2C:35-2.

5 N.J.S.A. 2C:35-2.

MANUFACTURING OF A CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-5)

conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the

same meaning.6

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 circ umstances if he/she is aware of the existence

of such circumstances or he/she believes or hop es that they exist. "With purpose," "designed,"

"with design" or equivalent terms have the same meaning.7

Remember that when we speak of knowingly and purposely were speaking of 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 statem ent by the defendant that he/she had particular

knowledge or a particular purpose. Knowledge and purpose as sepa rate 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 three elements of this offense are that:

1. S

in evidence is (insert appropriate CDS) (or a controlled substance

analog).

2. That the defendant manufactured S on the date alleged in the

indictment.

3. That the defendant acted knowingl y or purposefully in manufacturing

S .

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 of these elements beyond a reasonabl e doubt, then you must return a verdict of not

guilty.

6 N.J.S.A. 2C:2-2b(1).

7 N.J.S.A. 2C:2-2b(2).