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someone is Indicted for Possession of Drugs with Intent to Distribute,
the Judge will read portions of the following to the Jury. They are
called request to charge. Count of the indictment charges the defendant
as follows: (Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35-5)1 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 possess or have under his control
with intent to ... distribute a controlled dangerous substance (or
controlled substance analog).
2 The various kinds of substances are defined in another part of
our statute. (Insert appropriate CDS, e.g., heroin, cocaine, etc.)
is a dangerous substance prohibited by statute. (The defendant does
not claim legal authorization, so the exceptions in the statute
are not applicable in this case.) The statute, read together with
the indictment, 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. The substance in evidence is (insert appropriate CDS or controlled
substance analog).
2. The defendant possessed, or had under (his/her) control, S in
evidence.
3. The defendant, when (he/she) possessed or had under (his/her)
control S in evidence, had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposefully in possessing
or having under (his/her) control with intent to distribute S in
evidence.
[when it is alleged that a controlled substance analog was possessed
with intent to distribute the following definition of controlled
substance analog should be charged]:
In regard to the first element, a "controlled 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 analog of the
controlled dangerous substance . 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, that the defendant had under (his/her)
control or possessed S in evidence, "possess" means (charge
definition of possession). In regard to the third element, that
the defendant had the intent to distribute S in evidence, "distribute"
means the transfer, actual, constructive or attempted,4 from one
person to another of a controlled 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 "Intent" means a purpose to do something, a resolution
to do a particular act or accomplish a certain thing. Intent is
a state of mind, and it is very rare that intent is proven by witnesses
who can testify that an accused said (he/she) had a certain intent
when (he/she) engaged in a particular act. The intention may be
gathered from a person's acts, conduct, from all the person said
and did at the particular time and place, and from all of the surrounding
circumstances. You may consider any evidence as to the quantity,
purity, and packaging
6 of S together with all the other evidence in the case to aid
you in your determination of the element of intent to distribute.
In regard to the fourth element, the State must prove, as I have
stated, that the defendant acted knowingly or purposefully in having
under (his/her) control or possessing S with intent to distribute.
A person acts knowingly with respect to the nature of (his/her)
conduct or the attendant circumstances if (he/she) is aware that
(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 is aware that it is practically certain that (his/her) conduct
will cause such a result. "Knowing," "with knowledge"
or equivalent terms have the same meaning.
7A 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 of (he/she)
believes or hopes that they exist. "With purpose," "designed,"
"with design" or equivalent terms have the same meaning.8
The terms "knowingly" and "purposefully," like
intent, refer to 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 of proof do not commonly exist.
They must ordinarily be discovered as other mental states are from
circumstantial evidence; that is, by reference to the defendant's
conduct, words or acts and all the surrounding circumstances.
To reiterate, the four elements of this offense are that:
1. The substance in evidence is (insert appropriate CDS or controlled
substance analog).
2. The defendant possessed, or had under (his/her) control, S in
evidence.
3. The defendant had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposely in possessing
or having under (his/her) control with intent to distribute S in
evidence.
If you find that the State had proven all these elements beyond
a reasonable doubt, then you must return a verdict of guilty. On
the other hand, if you find that the State has failed to prove any
of these elements beyond a reasonable doubt, then you must return
a verdict of not guilty.
For representation in Criminal and Litigation cases, call KENNETH
VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave.
Edison NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 Member of:
New Jersey New York Pennsylvania & Federal Bars
----- 1 N.J.S.A. 2C:35-5 grades this offense for sentencing purposes
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. However, 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 the supplementary model charge concerning this.
2 To be charged when the indictment alleges possession with intent
to distribute a controlled substance analog.
3 N.J.S.A. 2C:35-2.
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 See State v. Perez, 218 N.J. Super. 478, 482-486 (App. Div. 1987).
7 N.J.S.A. 2C:2-2b(1).
8 N.J.S.A. 2C:2-2b(2)
Penalties expanded for Drug dealing:
2C:35-5. Manufacturing, distributing or dispensing 2C:35-5. Manufacturing,
Distributing or Dispensing. a. Except as authorized by P.L.1970,
c.226 (C.24:21-1 et seq.), it shall be unlawful for any person knowingly
or purposely:
(1) To manufacture, distribute or dispense, or to possess or have
under his control with intent to manufacture, distribute or dispense,
a controlled dangerous substance or controlled substance analog;
or
(2) To create, distribute, or possess or have under his control
with intent to distribute, a counterfeit controlled dangerous substance.
b.Any person who violates subsection a. with respect to:
(1) Heroin, or its analog, or coca leaves and any salt, compound,
derivative, or preparation of coca leaves, and any salt, compound,
derivative, or preparation thereof which is chemically equivalent
or identical with any of these substances, or analogs, except that
the substances shall not include decocainized coca leaves or extractions
which do not contain cocaine or ecogine, or or 3,4-methylenedioxymethamphetamine
or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or
more including any adulterants or dilutants is guilty of a crime
of the first degree. The defendant shall, except as provided in
N.J.S.2C:35-12, be sentenced to a term of imprisonment by the court.
The term of imprisonment shall include the imposition of a minimum
term which shall be fixed at, or between, one-third and one-half
of the sentence imposed, during which the defendant shall be ineligible
for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3,
a fine of up to $500,000.00 may be imposed;
(2) A substance referred to in paragraph (1) of this subsection,
in a quantity of one-half ounce or more but less than five ounces,
including any adulterants or dilutants is guilty of a crime of the
second degree;
(3) A substance referred to paragraph (1) of this subsection in
a quantity less than one-half ounce including any adulterants or
dilutants is guilty of a crime of the third degree except that,
notwithstanding the provisions of subsection b. of N.J.S.2C:43-3,
a fine of up to $75,000.00 may be imposed;
(4) A substance classified as a narcotic drug in Schedule I or
II other than those specifically covered in this section, or the
analog of any such substance, in a quantity of one ounce or more
including any adulterants or dilutants is guilty of a crime of the
second degree;
(5) A substance classified as a narcotic drug in Schedule I or
II other than those specifically covered in this section, or the
analog of any such substance, in a quantity of less than one ounce
including any adulterants or dilutants is guilty of a crime of the
third degree except that, notwithstanding the provisions of subsection
b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(6) Lysergic acid diethylamide, or its analog, in a quantity of
100 milligrams or more including any adulterants or dilutants, or
phencyclidine, or its analog, in a quantity of 10 grams or more
including any adulterants or dilutants, is guilty of a crime of
the first degree. Except as provided in N.J.S.2C:35-12, the court
shall impose a term of imprisonment which shall include the imposition
of a minimum term, fixed at, or between, one-third and one-half
of the sentence imposed by the court, during which the defendant
shall be ineligible for parole. Notwithstanding the provisions of
subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may
be imposed;
(7) Lysergic acid diethylamide, or its analog, in a quantity of
less than 100 milligrams including any adulterants or dilutants,
or where the amount is undetermined, or phencyclidine, or its analog,
in a quantity of less than 10 grams including any adulterants or
dilutants, or where the amount is undetermined, is guilty of a crime
of the second degree;
(8) Methamphetamine, or its analog, or phenyl-2-propanone (P2P),
in a quantity of five ounces or more including any adulterants or
dilutants is guilty of a crime of the first degree. Notwithstanding
the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to
$300,000.00 may be imposed;
(9) (a) Methamphetamine, or its analog, or phenyl-2-propanone (P2P),
in a quantity of one-half ounce or more but less than five ounces
including any adulterants or dilutants is guilty of a crime of the
second degree;
(b) Methamphetamine, or its analog, or phenyl-2-propanone (P2P),
in a quantity of less than one-half ounce including any adulterants
or dilutants is guilty of a crime of the third degree except that
notwithstanding the provisions of subsection b. of N.J.S.2C:43-3,
a fine of up to $75,000.00 may be imposed;
(10) (a) Marijuana in a quantity of 25 pounds or more including
any adulterants or dilutants, or 50 or more marijuana plants, regardless
of weight, or hashish in a quantity of five pounds or more including
any adulterants or dilutants, is guilty of a crime of the first
degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3,
a fine of up to $300,000.00 may be imposed;
(b) Marijuana in a quantity of five pounds or more but less than
25 pounds including any adulterants or dilutants, or 10 or more
but fewer than 50 marijuana plants, regardless of weight, or hashish
in a quantity of one pound or more but less than five pounds, including
any adulterants and dilutants, is guilty of a crime of the second
degree;
(11) Marijuana in a quantity of one ounce or more but less than
five pounds including any adulterants or dilutants, or hashish in
a quantity of five grams or more but less than one pound including
any adulterants or dilutants, is guilty of a crime of the third
degree except that, notwithstanding the provisions of subsection
b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;
(12) Marijuana in a quantity of less than one ounce including any
adulterants or dilutants, or hashish in a quantity of less than
five grams including any adulterants or dilutants, is guilty of
a crime of the fourth degree;
(13) Any other controlled dangerous substance classified in Schedule
I, II, III or IV, or its analog, is guilty of a crime of the third
degree, except that, notwithstanding the provisions of subsection
b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;
or
(14) Any Schedule V substance, or its analog, is guilty of a crime
of the fourth degree except that, notwithstanding the provisions
of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may
be imposed.
c.Where the degree of the offense for violation of this section
depends on the quantity of the substance, the quantity involved
shall be determined by the trier of fact. Where the indictment or
accusation so provides, the quantity involved in individual acts
of manufacturing, distribution, dispensing or possessing with intent
to distribute may be aggregated in determining the grade of the
offense, whether distribution or dispensing is to the same person
or several persons, provided that each individual act of manufacturing,
distribution, dispensing or possession with intent to distribute
was committed within the applicable statute of limitations.
Amended 1988, c.44, s.2; 1997, c.181, s.3; 1997, c.186, s.3; 2000,
c.55; 2000, c.136.
2C:35-5.2 Manufacturing, etc. gamma hydroxybutyrate; penalties
3. a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.),
it shall be a crime of the second degree for any person knowingly
or purposely to manufacture, distribute or dispense, or to possess
or have under his control with intent to manufacture, distribute
or dispense gamma hydroxybutyrate.
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other
law, a fine of up to $150,000.00 may be imposed upon a person who
violates this section.
L.1997,c. 194, s.3.
2C:35-5.3 Manufacturing, etc. flunitrazepam; penalties 5. a. Except
as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it is unlawful
for any person knowingly or purposely to manufacture, distribute
or dispense, or to possess or have under his control with intent
to manufacture, distribute or dispense flunitrazepam.
b. A person who violates subsection a. of this section with respect
to flunitrazepam in a quantity of one gram or more is guilty of
a crime of the first degree and, notwithstanding the provisions
of N.J.S.2C:43-3 or any other law, a fine of up to $250,000.00 may
be imposed upon the person.
c. A person who violates subsection a. of this section with respect
to flunitrazepam in a quantity of less than one gram is guilty of
a crime of the second degree and, notwithstanding the provisions
of N.J.S.2C:43-3 or any other law, a fine of up to $150,000.00 may
be imposed upon the person.
L.1997,c. 194, s.5.
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Consequences of a
Criminal Guilty Plea
1. You will have to appear in open court and tell the
judge what you did that makes you guilty of the particular
offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to
random drug and urine testing. If you violate Probation,
you often go to jail.
4. In indictable matters, you will be required to provide
a DNA sample, which could be used by law enforcement for
the investigation of criminal activity, and pay for the
cost of testing.
5. You must pay restitution if the court finds there
is a victim who has suffered a loss and if the court finds
that you are able or will be able in the future to pay
restitution.
6. If you are a public office holder or employee, you
can be required to forfeit your office or job by virtue
of your plea of guilty.
7. If you are not a United States citizen or national,
you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense.
2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000,
and lose your driver's license for 6 months - 2years.
You must pay a Law Enforcement Officers Training and Equipment
Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation
Board assessment of $50 ($100 minimum if you are convicted
of a crime of violence) for each count to which you plead
guilty.
13. You must pay a $75 Safe Neighborhood Services Fund
assessment for each conviction.
14. If you are being sentenced to probation, you must
pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in
future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense
is not impossible. There are a number of viable defenses
and arguments which can be pursued to achieve a successful
result. Advocacy, commitment, and persistence are essential
to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal
offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first
degree, for a specific term of years which shall be fixed
by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for
a specific term of years which shall be fixed by the court
and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a
specific term of years which shall be fixed by the court
and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for
a specific term which shall be fixed by the court and
shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3.
Fines and Restitutions. A person who has been convicted
of an offense may be sentenced to pay a fine, to make
restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime
of the first degree;
(2) $150,000.00 when the conviction is of a crime of
the second degree;
b. (1) $15,000.00 when the conviction is of a crime of
the third degree;
(2) $10,000.00 when the conviction is of a crime of the
fourth degree;
c. $1,000.00, when the conviction is of a disorderly
persons offense;
d. $500.00, when the conviction is of a petty disorderly
persons offense;
If facing any criminal charge, retain an experienced
attorney immediately to determine you rights and obligations
to the court. Current criminal charge researched by Kenneth
Vercammen, Esq. 732-572-0500
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