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

Revised 1/14/08

DISTRIBUTION OF A CONTROLLED DANGEROUS SUBS TANCE1

(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 distribute ... 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, eg. heroin, cocaine, etc.) is a dangerous substance prohibited 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 indictme nt, identifies the element 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 distributed S date alleged in the indictment.

3. That the defendant acted knowingly or purposef ully in distributing S .

[When it is alleged that a controlled substance analog has

been distributed the following definition 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)

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

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

distributed. This charge is sufficient for such cases. Ho wever, 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 distribution of a controlled substance analog.

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

DISTRIBUTION OF A CONTROLLED

DANGEROUS SUBSTANCE

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

analog of the controlled dangerous s ubstance . 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, to "distribut e" means the transfer, actual, constructive or

attempted,4 from one person to another of a contro lled 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

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

acted knowingly or purposefully in distributing 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

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 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.

7

Remember that when we speak of know ingly and purposely we are 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 statement by the defendant that he/she had

particular knowledge or a particular purpose. Knowledge and purpose as separate propositions

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

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

DISTRIBUTION OF A CONTROLLED

DANGEROUS SUBSTANCE

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

of proof do not commonly exist. They must ordinarily be discovered as other mental states are

from circumstantial evidence; th at 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 distributed S alleged in the indictment.

3. That the defendant acted knowingly or purpos efully in distributing 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 ot her 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.