Count of the indictment charges the defendant as follows:
The pertinent part of the statute (N.J.S.A. 2C:35‑10) on which this indictment is based reads as follows:
The various kinds of controlled dangerous substances are defined in another part of our statute. (Insert appropriate CDS, e.g., heroin, cocaine, etc.) is a controlled dangerous substance prohibited by statute.
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:
- S in evidence is (insert appropriate CDS). [or in cases in which it is alleged that a controlled substance analog was possessed, charge as follows:]
- S in evidence is a controlled substance analog.
- That the defendant possessed or obtained S in evidence.
- That the defendant acted knowingly or purposely in possessing or obtaining S in evidence.
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, “obtain” means to acquire, to get, to procure. “Possess” means to [charge definition of possession].
Remember then when we speak of knowingly and purposely we are speaking of 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 three elements of this offense are that:
- S in evidence is (insert appropriate CDS) (or controlled dangerous substance analog).
- The defendant possessed or obtained S in evidence.
- The defendant acted knowingly or purposely in possessing or obtaining S in evidence.
Note: Because the mandatory community service provision contained in N.J.S.A. 2C:35‑10a(4) prescribes a form of enhanced punishment, rather than defining a separate substantive offense, the official commentary to the Comprehensive Drug Reform Act (Laws 1987, Chapter 106), states that the determination of whether the person committed the offense while on school property or a school bus, or within 1,000 feet of school property, will be made by the court at the time of sentencing. See The Criminal Justice Quarterly, Vol. 9, No. 3, Fall 1987
[1] With the exception of marijuana and hashish, possession of any amount of CDS is a crime. Therefore, it is not necessary for the jury to make a finding as to quantity. In cases involving marijuana and hashish, there is the additional element of quantity ‑ 50 grams in respect to marijuana and 5 grams in respect to hashish. N.J.S.A. 2C:35‑10a(3). Possession of lesser amounts of these drugs is a disorderly persons offense. N.J.S.A. 2C:35‑10a(4). Thus, in a marijuana or hashish possession case, these additional elements must be charged, and when appropriate a charge on the lesser included disorderly persons offense must be given. The jury should be instructed that in the event they find the defendant guilty, they should determine whether the State has proven beyond a reasonable doubt the specified quantity was possessed.
[2] To be charged when the indictment alleges possession of a controlled dangerous substance analog.
[3] N.J.S.A. 2C:35-2.
[4] N.J.S.A. 2C:2-2b(1).
[5] N.J.S.A. 2C:2-2b(2).
[6] N.J.S.A. 2C:35‑10 provides that if this offense is committed on, or within 1,000 feet of school property or a school bus, and if the defendant is not sentenced to a term of imprisonment, the defendant’s sentence must include 100 hours of community service. It should be noted that this provision, unlike N.J.S.A. 2C:35‑7, not create a separate offense, or an element of an offense to be determined by a jury. Rather, the provision simply creates an enhanced sentence. Therefore, the judge at sentencing is to make the determination of whether the offense was within a school zone. See the Official Commentary to the Comprehensive Drug Reform Act of 1986 (reprinted in 9 Criminal Justice Quarterly at p. 160 (Fall, 1987) which states:
“Because the mandatory community service provision of this section prescribes a form of enhanced punishment, rather than defining a separate substantive offense, it is intended that the determination of whether the person committed the offense while on school property or a school bus or within 1,000 feet of school property, will be made by the court at the time of sentencing.”