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

Revised 2/3/92

SUPPLEMENTAL CHARGE TO OFFENSES SET FORTH

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)

If you have found the defendant guilty of (possession of) (distribu ting) (possessing with

intent to distribute) (insert appropriate CDS or controlled substance analog), you then must

determine the quantity of (insert appropriate CDS or controlled substance analog) involved. It is

the State's burden to prove beyond a reasonable doubt the quantity of (insert appropriate CDS or

controlled substance anal og) involved. The State need not prove defendant's

knowledge of the quantity of the drugs, so long as it proves beyond a reasonable doubt that

defendant knowingly possessed the controlled dangerous substance.1

[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 Subs tance analog) when

you find that separate amounts of the (insert th e 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 th e defendants. If you determine that the (insert the

appropriate CDS or Controlled Substance anal og) 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 toge ther 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. Th e 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:

1 State v. Torres, 236 N.J. Super. 6 (App. Div. 1989).

2 State v. Curry and Lawrence, 245 N.J. Super. 278, (Law Div. 1989).

SUPPLEMENTAL CHARGE TO OFFENSES

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

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 CD S 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 anal og) 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 quant ities 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.

7 Ibid.

SUPPLEMENTAL CHARGE TO OFFENSES

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

[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 th e 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 adulte rants 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 th e 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. Ther e 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 th e 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 we re at least 3.5 grams pure free base

drug).9 There will be spa ce 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:

8 Ibid.

9 Ibid.

SUPPLEMENTAL CHARGE TO OFFENSES

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

1. (Five (5) pounds) (One (1 ) pound) or m ore 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) gram s) of (marijuana) (h ashish) including any

adulterants and dilutants.

After determining which one of these quant ities the State has proven beyond a reasonable

doubt, you should mark the appropriate section of the verdict sheet which will be supplied to

you.

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.