N.J. Model Criminal Jury Charge, N.J.S.A. 2C:35-11

Approved 3/19/90

DISTRIBUTION OF AN IMITATION

CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-11)

Count of the indictment charges the defendant as follows:

(Read indictment)

The pertinent part of the statute ( N.J.S.A. 2C:35-11) on which this indictment is based

reads as follows:

a. It is unlawful for any pe rson to distribute any substance

which is not a controlled dange rous substance or controlled

substance analog:

[Read Appropriate Section or Sections of the Statute]1

(1) Upon the express or implie d representation to the recipient

that the substance is a contro lled dangerous substance [or

controlled substance analog]; or

(2) Upon the express or implie d representation to the recipient

that the substance is of such nature, appearance or effect that the

recipient will be able to distri bute or use the substance as a

controlled dangerous substance [o r controlled substance analog];

or

(3) Upon circumstances which would lead a reasonable person

to believe that the substance is a controlled dangerous substance

[or controlled substance analog].

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 not a controlled dangerous substance

or controlled substance analog.

2. That either:

1 The statute provides that this offense may be committed in three ways; that is by representation that the

substance is a CDS, by representation that the substa nce can be used or distributed as a CDS, and under

circumstances under which a reasonable person would believe the substance to be a CDS. The circumstances of the

case will determine which one (or more) of these sections should be charged.

DISTRIBUTION OF AN IMITATION

CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-11)

A. The defendant made an expre ssed or implied representation to the

r e c i p i e n t t h a t S in evidence is a controlled dangerous substance,

specifically (e.g. cocaine)

or

B. The defendant made an expre ssed or implied representation to the

recipient that S in evidence is of such nature, appearance or effect

that the recipient will be able to distribute or use S in evidence as a

controlled dangerous substance, specifically (e.g., cocaine)

or

C. The defendant possessed or had under his/her control with intent to

distribute S

in evidence under circumst ances which would lead a

reasonable person to believe that the substance is a controlled dangerous

substance, specifically (e.g., cocaine).

3. The defendant distributed S

in evidence.

4. The defendant, acted knowingly in distributing S

in evidence.2

As I have stated, the first elem e n t i s t h a t S in evidence is not a controlled

dangerous substance or controll ed substance analog. Controll ed dangerous substances are

defined in another part of our law. A controll ed substance analog is a substance that (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 dangerous

substance.3 You have heard testim ony in this case that S in evidence is _____________.

It is, of course, up to you to determine whether th is testimony is credible. However, I instruct

you that ___________ is not a controlled dangerous substance. You have also heard testimony

that _____________ is not a controlled substance analog in that it would not produce an effect

substantially similar to that of a controlled da ngerous substance and that it was not specifically

designed to produce such an eff ect. Again, it is solely up to you to determine whether this

2 The statute does not specify a mental element. (Compare N.J.S.A. 2C:35-5 which specifies a knowingly or

purposefully distribution of CDS.) Nonetheless, in light of N.J.S.A. 2C:2-2c(3) it would seem that a knowing

distribution is required.

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

DISTRIBUTION OF AN IMITATION

CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-11)

testimony is credible.

In regard to the second element, as I have instructed you, you must decide whether the

State has proven beyond a reasonable doubt [charge appropriate section or sections]:

That either:

A. The defendant made an expres sed or implied representation to the

recipient that S

in evidence is a contro lled dangerous substance,

specifically (e.g. cocaine)

or

B. The defendant made an expres sed or implied representation to the

recipient that S in evidence is of such nature, appearance or effect that the

recipient will be able to dist ribute or use S in evidence as a controlled

dangerous substance, specifically (e.g., cocaine)

or

C. The defendant possessed or had under his/her control with intent to

d i s t r i b u t e S in evidence under circumst ances which would lead a

reasonable person to believe that the substance is a controlled dangerous

substance, specifically (e.g., cocaine).

[In determining whether the circumstances were such as to lead a reasonable person to

believe that S is a controlled dangerous substance, specifically (e.g., cocaine), you should

of course consider all the evidence including whether S was packaged in a manner

normally used for the unlawful distribution of controlled dangerous substances; whether any

distribution or attempted distribu t i o n o f S was accompanied by an exchange of or

demand for money or other thing as cons i d e r a t i o n f o r S and the value of the

consideration exceeded the reasonable value of S ; and whether the physical appearance

of S is substantially the same as that of a specific controlled dangerous substance.]4

[Note: When it is charged that the substance is an imitation of a controlled dangerous

substance analog, the following charge, rather than the one set forth above, should be given as

the instruction on the second element of the offense.]

In regard to the second element, you must decide whether the State has proven beyond a

4 N.J.S.A. 2C:35-11a(3)(a) through (c). This language only should be charged when the third alternative is

applicable.

DISTRIBUTION OF AN IMITATION

CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-11)

reasonable doubt [charge appropriate section or sections]:

A. The defendant made an expres sed or implied representation to the

recipient that S in evidence is a controlled substance analog, i.e., the

defendant expressly or impliedly represented that S in evidence has a

chemical structure substantially similar to ( e.g. cocaine ) a n d t h a t S in

evidence was specifically designed to produ ce an effect substantially similar to

that of (e.g. cocaine)

or

B. The defendant made an expres sed or implied representation to the

intended recipient that S

is of such a nature or effect that the recipient will

be able to distribute or use S in evidence as a controlled substance

analog, i.e. the defendant expressly or impliedly represented that the recipient will

be able to distribute or use S as a substance that has a chemical structure

substantially similar to ( e.g., cocaine ) and as a substance that was specifically

designed to produce an effect substantially similar to (e.g. cocaine)

or

C. The defendant possessed or had under his/her control with intent to

d i s t r i b u t e S

in evidence under circumstances which would lead a

r e a s o n a b l e p e r s o n t o b e l i e v e t h a t t h e S in evidence is a controlled

substance analog, i.e. t h a t S in evidence has a chemical structure

substantially similar to that of ( e.g., cocaine) and that S in evidence was

specifically designed to produce an effect substantially similar to (e.g. cocaine).

[In determining whether the circumstances were such as to lead a reasonable person to

b e l i e v e t h a t S is a controlled substance analog, yo u should of course, consider all the

evidence, including whether S was packaged in a manner normally used for the unlawful

distribution of controlled dange rous substances or controlled substance analogs; whether any

distribution or attempted distribut i o n o f S was accompanied by an exchange of or

demand for money or other thing as consid e r a t i o n f o r S , and the value of the

consideration exceeded the reasonable value of S ; and whether the physical appearance

of S is substantially the same as that of a specific controlled dangerous substance or

controlled substance analog.]5

5 N.J.S.A. 2C:35-11a(3)(a) through (c). This language should only be charged when the third alternative is

applicable.

DISTRIBUTION OF AN IMITATION

CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-11)

In regard to the third element, that th e defendant distributed S in evidence, to

"distribute" means the transfer, actual, constructive or attempted, 6 from one person to another of

a controlled dangerous substance (or controlled subs tance analog). It is not necessary that the

drugs be transferred in exchange for payment or promise of payment of money or anything of

value.7

In regard to the fourth element, the State mu st prove, as I have stat ed, that the defendant

acted knowingly 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.8

Remember that when we speak of knowingl y, we are speaking of a condition of the mind

that cannot be seen. It is not necessary for the State to prove the existence of such mental state

by direct evidence such as a statement by the defe ndant that he/she had particular knowledge.

Knowledge as a separate propositio n of proof does not commonly exis t. It must ordinarily be

discovered as other mental states are from circ umstantial evidence; that is, by reference to the

defendant's conduct, words or acts and all the surrounding circumstances.

It should be noted that the law provides that it shall not be a defense that the defendant

mistakenly believed a substance to be a controlle d dangerous substance [or controlled substance

analog.]9 Thus, if you were to find that the defendant acted knowingly in distributing S in

evidence but mistakenly believed t h a t S in evidence was a controlled dangerous

substance [or controlled substance analog], as opposed to an imitation controlled dangerous

substance [or imitation controlled substance analog], the defendant's mistaken belief as to the

character of S evidence would not prevent you fr om finding that the defendant

acted knowingly in distributing S in evidence.

6 This definition is taken from the definitions of "distribute" and "deliver" set forth in N.J.S.A. 2C:35-2.

7 State v. Heitzman, 209 N.J.Super. 617, 621 (App. Div. 1986), aff'd 107 N.J. 603 (1987).

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

9 N.J.S.A. 2C:35-11c.

DISTRIBUTION OF AN IMITATION

CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-11)

To reiterate, the four elements of this offense are that

1 . S in evidence is not a contro lled dangerous substance or

controlled substance analog.

2. A. The defendant made an expre ssed or implied representation to the

recipient that S in evidence is a controlled dangerous substance,

specifically (e.g. cocaine)

or

B. The defendant made an expre ssed or implied representation to the

recipient that S in evidence is of such nature, appearance or effect

that the recipient will be able to distribute or use S in evidence as

a controlled dangerous substance, specifically (e.g., cocaine)

or

C. The defendant possessed or had under his/her control with intent to

distribute S

in evidence under circumstances which would

lead a reasonable person to believe that the substance is a

controlled dangerous substance, specifically (e.g., cocaine

).

3. The defendant distributed S

in evidence.

4. The defendant acted knowingly in dist ributing S in evidence.

If you find that the State had proven all th ese elements beyond a reasonable doubt, then

you must return a verdict of guilty. On the ot her hand, if you find the State has failed to prove

any of these elements beyond a reasonable doubt, then you must return a verdict of not guilty.