N.J. Model Criminal Jury Charge, N.J.S.A. 2C:35-7.1

Approved 3/26/01

POSSESSION OF A CONTROLLED DANG EROUS SUBSTANCE WITH INTENT

TO DISTRIBUTE IN PROXIMITY TO PUBLIC HOUSING FACILITIES,

PARKS OR BUILDINGS1

(N.J.S.A. 2C:35-7.1)

Count _______ of the indictment charges the defendant with possession of a controlled

dangerous substance with intent to distribute in proximity to Public Housing Facilities, Parks or

Buildings.

(Read Indictment)

The pertinent part of the stat ute upon which this count of the indictment is based reads as

follows:

Any person who violates [another section of our law] by possessing with intent

to distribute a controlled dangerous subs tance [or controlled substance analog]

while in, on or within 500 feet of the real property comprising a Public

Housing Facility, Public Park, or a Public Building is guilty of a crime.

As I have already explained, (Insert appropriate CDS, e.g. heroin, cocaine, etc.) is a

dangerous substance prohibited by the statute.2

In order for you to find the defendant guilty of this count of the indictment, the State must

first prove beyond a reasonable doubt that the de fendant knowingly or purposely possessed with

intent to distribute a controlled dangerous substa nce (or controlled substan ce analog). As I have

previously instructed you, the elements of posse ssion with intent to di stribute a controlled

dangerous substance are:3

(1) S______ in evidence is (insert appropri ate CDS or controlled substance analog)

(2) The defendant possessed or had S______ under his/her control

(3) The defendant had the purpose to dist ribute S______ when he/she possessed it or

had it under his/her control.

1 This instruction is meant to be given as a supplement to the instructions on unlawful possession of CDS and

possession of CDS with intent to distribute. In cases wher e those charges are not present, definitions of key terms

must be incorporated here.

2 When a controlled dangerous substance analog is involved, refer to the definition found in N.J.S.A. 2C:35-2.

3 If applicable, lack of legal authorization pursuant to N.J.S.A. 24:21-1 should be charged as an additional

element.

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH INTENT TO DISTRIBUTE IN

PROXIMITY TO PUBLIC HOUSING FACILITIES,

PARKS OR BUILDINGS

(N.J.S.A. 2C:35-7.1)

In addition to proving the elements of posse ssion with intent to distribute a controlled

dangerous substance, to establish the defendant’s guilt on this count, the State must also prove

beyond a reasonable doubt that when the defendant possessed a controlled dangerous substance

with intent to distribute, he/she was:

[CHARGE AND DEFINE APPLICABLE TERM]

in (or within 500 feet of) any Public Housing Facility

OR

in (or within 500 feet of) any Public Park

OR

in (or within 500 feet of) any Public Building

“Public Housing Facility” means any dw elling, complex of dwellings, accommodation,

building, structure or facility a nd real property of any nature appurtenant thereto and used in

connection therewith, which is owned by or leased to a local housing authority in accordance

with the “Local Redevelopment and Housing Law,” [P.L. 1992, c.79 (C.40A:12A-1 et seq.)] for

the purpose of providing living accommodations to persons of low income.

“Public park” means a park, recreation facil ity or area or playground owned or controlled

by a State, county or local government unit.

“Public Building” means any publicly owned or leased library or museum.

The possibility that defendant may have b een unaware that the prohibited conduct took

place in or within 500 feet of a Public Housing F acility, Public Park or Public Building is not a

defense to this crime and shall not be considered by you in your deliberati ons. I further instruct

you that whether defendant intended to make the distribution within 500 feet of the public

property is irrelevant. To prove this element, the State must prove beyond a reasonable doubt

that when the defendant possessed a controlled da ngerous substance with intent to distribute,

he/she was in or within 500 feet of a Public Housing Facility, Public Park or Public Building.

To reiterate, in order for you to find the defendant guilty of this count of the indictment,

the State must prove all of the following elements beyond a reasonable doubt:

(1) S_______ in evidence is (insert appropri ate CDS or controlled substance analog)

(2) The defendant possessed or had S_______ under his/her control

(3) The defendant had the purpose to dist ribute S_______ when he/she possessed it or

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH INTENT TO DISTRIBUTE IN

PROXIMITY TO PUBLIC HOUSING FACILITIES,

PARKS OR BUILDINGS

(N.J.S.A. 2C:35-7.1)

had it under his/her control.

(4) That when the defendant possessed S with the purpose to distribute it,

he/she was in or within 500 feet of a [charge as appropriate: Public Housing

Facility, Public Park or Public Building].

If you find that the State has proven all of 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 of these elements beyond a reasonabl e doubt, then you must return a verdict of not

guilty.

[SUBSTITUTE WHERE APPROPRIATE]

The Defendant, as part of his/her general denial of guilt, asserts the defense that he/she

did not possess with intent to distribute [insert appropriate CDS

] for profit and that he/she did

not possess with intent to distribute [insert appropriate CDS] to a person 17 years or younger.

In order for this defense to be available, the defendant must prove by a pre ponderance of the

evidence, that is, it is more likely true than not, that:

(1) The offense did not involve distributi on of a controlled dangerous substance for

profit

AND

(2) The offense did not involve distribu tion to a person 17 years of age or younger

This defense applies only to this charge and shall not affect your verdict concerning any

other count of the indictment.

If you find that the State has proven all the elements of this crime beyond a reasonable

doubt, and also find that the defendant has failed to prove all of th e elements of this defense by a

preponderance of the evidence, th en you must return a verdict of guilty. On the other hand, if

you find that the State has failed to prove any of the elements of the crime beyond a reasonable

doubt, or that defendant has proved all of the elements of the defense by a preponderance of the

evidence, then you must return a verdict of not guilty.

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH INTENT TO DISTRIBUTE IN

PROXIMITY TO PUBLIC HOUSING FACILITIES,

PARKS OR BUILDINGS

(N.J.S.A. 2C:35-7.1)

(TO BE UTILIZED IN CASES IN WHICH THE QUANTITYOF MARIJUANA IS AN

ELEMENT OF THE OFFENSE)

If you have found the defendant guilty of possess ion of marijuana with intent to distribute

in or within 500 feet of a Public Housing Facility, Public Park or Public Building, you then must

determine whether the State has proven beyond a reasonable doubt that the quantity of marijuana

involved was:

One (1) ounce or more of marijuana in cluding any adulterants and dilutants. (Yes or No)

After determining if the State has prove n this quantity beyond a reasonable doubt, you

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