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

Approved 3/26/01

DISTRIBUTING A CONTROLLED SUBSTANCE: PROXIMITY TO PUBLI

C

HOUSING FACILITIES, PARKS OR BUILDINGS

(N.J.S.A. 2C:35-7.1)1

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

dangerous substance in proximity to Public Housing Facilities, Parks or Buildings.

(Read Indictment)

The pertinent part of the statute ( N.J.S.A. 2C:35-7.1) upon which this count of the

indictment is based reads as follows:

Any person who violates [another sec tion of our law] by distributing a

controlled dangerous substance [or controlled substance analog] while

in, on or within 500 f eet of the real proper ty 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 distributed a

controlled dangerous substance (or controlled substance analog). As I have previously instructed

you, the elements of distributing a controlled dangerous substance are:

3

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

(2) The defendant distributed S______ on the date alleged in the indictment.

(3) That the defendant acted knowi ngly or purposely in distributing S______.

In addition to proving the elements of distri bution of a controlled dangerous substance, to

establish the defendant’s guilt on this count, the State must also prove beyond a reasonable doubt

that the distribution occurred:

[CHARGE AND DEFINE APPLICABLE TERM]

1 This instruction is meant to be given as a supplemen t to the instruction on distri bution of CDS. In cases where

that charge is 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.

DISTRIBUTING A CONTROLLED DANGEROUS

SUBSTANCE: PROXIMITY TO PUBLIC HOUSING

FACILITIES, PARKS OR BUILDINGS

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

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 simply prove that when the

defendant distributed a controlled dangerous substance, 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 a controlled substance

analog).

2. That the defendant distributed S______ on the date alleged in the indictment.

3. That the defendant acted knowingly in distributing S______.

4. That when the defendant distributed S ______, 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

DISTRIBUTING A CONTROLLED DANGEROUS

SUBSTANCE: PROXIMITY TO PUBLIC HOUSING

FACILITIES, PARKS OR BUILDINGS

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

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 distribute [insert appropriate CDS] for profit and that he/she did not 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 preponderance of the evid ence, 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 both of the elements of this defense by

a preponderance of the evidence, then you must retu rn 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 both of the elements of the defense by a preponderance of

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

(TO BE UTILIZED IN CASES IN WHICH THE QUANTITY

OF MARIJUANA IS AN ELEMENT OF THE OFFENSE)

If you have found the defendant guilty of dist ribution of marijuana 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.