Kenneth Vercammens Law office represents individuals charged
with criminal and serious traffic violations throughout New Jersey.
If 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 persons 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 defendants 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), affd 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.
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 drivers 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
