H. SCOTT AALSBERG, ESQ., P.C.
"The Not Guilty Attorney"
"The Not Guilty Attorney"
Distribution of Drugs 2C:35-5
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The pertinent part of the statute (N.J.S.A. 2C:35-5) 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
The various kinds of substances are defined in another part of our NJ Law. (Insert appropriate CDS, e.g., heroin, cocaine, marijuana etc.) is a dangerous substance
prohibited by statute. The elements which the State must prove beyond a reasonable doubt to establish guilt of the defendant on this charge are as follows:
1. The substance obtained is in fact an illegal drug or substance analog.
2. The defendant possessed, or had under (his/her) control, said drugs or analog.
3. The defendant, when (he/she) possessed or had under (his/her) control S in evidence, had the intent to distribute said drugs.
4. That the defendant acted knowingly or purposefully in possessing or having under(his/her) control with intent to distribute said drugs.
[When it is alleged that a controlled substance analog was possessed with intent to distribute the following definition of controlled substance analog is used]:
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 that the defendant had the intent to distribute drugs, "distribute" means the transfer, actual, constructive or attempted, transfer 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.
"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. (Example intent can be
proven by actions such as being caught in your car with 25 grams of marijuana in 25 individual 1 gram baggies with a scale also being found in the car)
The Court will consider the quantity, purity, and packaging together with all the other evidence in the case to aid in the determination of the element of intent to
distribute.
In regard to the fourth element, the State must prove, that the defendant acted knowingly or purposefully in having under (his/her) control or possessing drugs 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.
A 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.
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.
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. Please call our office at 1-800-974-4487 to set up a free consultation so that we
can determine whether you have been appropriately charged with the correct violation and offense. We have found that many times a defendant is
improperly charged with the wrong offense or grade and faces penalties higher than need be.
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
The various kinds of substances are defined in another part of our NJ Law. (Insert appropriate CDS, e.g., heroin, cocaine, marijuana etc.) is a dangerous substance
prohibited by statute. The elements which the State must prove beyond a reasonable doubt to establish guilt of the defendant on this charge are as follows:
1. The substance obtained is in fact an illegal drug or substance analog.
2. The defendant possessed, or had under (his/her) control, said drugs or analog.
3. The defendant, when (he/she) possessed or had under (his/her) control S in evidence, had the intent to distribute said drugs.
4. That the defendant acted knowingly or purposefully in possessing or having under(his/her) control with intent to distribute said drugs.
[When it is alleged that a controlled substance analog was possessed with intent to distribute the following definition of controlled substance analog is used]:
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 that the defendant had the intent to distribute drugs, "distribute" means the transfer, actual, constructive or attempted, transfer 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.
"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. (Example intent can be
proven by actions such as being caught in your car with 25 grams of marijuana in 25 individual 1 gram baggies with a scale also being found in the car)
The Court will consider the quantity, purity, and packaging together with all the other evidence in the case to aid in the determination of the element of intent to
distribute.
In regard to the fourth element, the State must prove, that the defendant acted knowingly or purposefully in having under (his/her) control or possessing drugs 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.
A 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.
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.
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. Please call our office at 1-800-974-4487 to set up a free consultation so that we
can determine whether you have been appropriately charged with the correct violation and offense. We have found that many times a defendant is
improperly charged with the wrong offense or grade and faces penalties higher than need be.
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