Approved 3-19-90
POSSESSION OF
AN IMITATION CONTROLLED DANGEROUS SUBSTANCE
WITH INTENT TO DISTRIBUTE
(2C:35‑11)
Count___________ of the indictment charges the defendant as follows:
(Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35‑11) on which this indictment is based reads as follows:
a. It is unlawful for any person . . . to possess or have under his control with intent to distribute any substance which is not a controlled dangerous substance or controlled substance analog:
[Read Appropriate Section or Section of the Statute] [1]
(1) Upon the express or implied representation to the recipient that the substance is a controlled dangerous substance [or controlled substance analog]; or
(2) Upon the express or implied representation to the recipient that the substance is of such nature, appearance or effect that the recipient will be able to distribute or use the substance as a controlled dangerous substance [or controlled substance analog]; or
(3) Under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance [or controlled substance analog].
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. S in evidence is not a controlled dangerous substance or controlled substance analog.
2. A. The defendant made an expressed or implied representation to the recipient that S in evidence is a controlled dangerous substance, specifically (e.g., cocaine)
or
B. The defendant made an expressed or implied representation to the recipient that S in evidence is of such nature, appearance or effect that the recipient will be able to distribute or use S in evidence as a controlled dangerous substance, specifically (e.g., cocaine).
or
C. The defendant possessed or had under his control with intent to distribute S in evidence under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance, specifically (e.g., cocaine).
3. The defendant possessed, or had under (his/her) control, S in evidence.
4. The defendant, when (he/she) possessed or had under (his/her) control S________ in evidence, had the intent to distribute S in evidence.
As I have stated, the first element is that S in evidence is not a controlled dangerous substance or controlled substance analog. Controlled dangerous substances are defined in another part of our law. A controlled substance analog is a substance that
(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 dangerous substance.[2] You have heard testimony in this case that S in evidence is . It is, of course, up to you to determine whether this testimony is credible. However, I instruct you that is not a controlled dangerous substance. You have also heard testimony that is not a controlled substance analog in that it would not produce an effect substantially similar to that of a controlled dangerous substance and that it was not specifically designed to produce such an effect. Again, it is solely up to you to determine whether this testimony is credible.
In regard to the second element as I have instructed you, you must decide whether the State has proven beyond a reasonable doubt (charge appropriate section or sections):
That either:
A. The defendant made an expressed or implied representation to the recipient that S in evidence is a controlled dangerous substance, specifically (e.g., cocaine)
or
B. The defendant made an expressed or implied representation to the recipient that S in evidence is of such nature, appearance or effect that the recipient will be able to distribute or use S in evidence as a controlled dangerous substance, specifically (e.g., cocaine).
or
C. The defendant possessed or had under his control with intent to distribute S in evidence under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance, specifically (e.g., cocaine).
[In determining whether the circumstances were such as to lead a reasonable person to believe that S is a controlled dangerous substance, specifically (e.g., cocaine), you should of course consider all the evidence including whether S was packaged in a manner normally used for the unlawful distribution of controlled dangerous substances; whether any distribution or attempted distribution of S was accompanied by an exchange of or demand for money or other thing as consideration for S and the value of the consideration exceeded the reasonable value of S and whether the physical appearance of S is substantially the same as that of a specific controlled dangerous substance.[3]
[Note: When it is charged that the substance is an imitation of a controlled dangerous substance analog, the following charge, rather than the one set forth above, should be given as the instruction on the second element of the offense.]
In regard to the second element as I have instructed you, you must decide whether the State has proven beyond a reasonable doubt [charge appropriate section or sections]:
A. The defendant made an expressed or implied representation to the recipient that S in evidence is a controlled substance analog, i.e. the defendant expressly or impliedly represented that S in evidence has a chemical structure substantially similar to (e.g. cocaine) and that S in evidence was specifically designed to produce an effect substantially similar to that of (e.g. cocaine).
or
B. The defendant made an expressed or implied representation to the intended recipient that S is of such a nature or effect that the recipient will be able to distribute or use S in evidence as a controlled substance analog, i.e. the defendant expressly or impliedly represented that the recipient will be able to distribute or use S as a substance that has a chemical structure substantially similar to (e.g. cocaine) and as a substance that was specifically designed to produce an effect substantially similar to (e.g. cocaine).
or
C. The defendant possessed or had under his control with intent to distribute S in evidence under circumstances which would lead a reasonable person to believe that the S in evidence is a controlled substance analog, i.e. that S in evidence is a controlled structure substantially similar to that of (e.g. cocaine) that S in evidence was specifically designed to produce an effect substantially similar to (e.g. cocaine).
[In determining whether the circumstances were such as to lead a reasonable person to believe that S is a controlled substance analog, you should, of course, consider all the evidence, including whether S was packaged in a manner normally used for the unlawful distribution of controlled dangerous substances or controlled substance analogues; whether any distribution or attempted distribution of S was accompanied by an exchange of or demand for money or other thing as consideration for S , and the value of the consideration exceeded the reasonable value of S ; and whether the physical appearance of S is substantially the same as that of a specific controlled dangerous substance or controlled substance analog.[4]
In regard to the third element, that the defendant possessed or had under (his/her) control S in evidence, "possess" means (charge definition of possession).
It should be noted that the law provides that it shall not be a defense that the defendant mistakenly believed a substance to be a controlled dangerous substance [or controlled substance analog].[5] Thus, if you were to find that the defendant exercised or intended to exercise dominion and control over S in evidence but mistakenly believed that S in evidence was a controlled dangerous substance [or controlled substance analog], the defendant's mistaken belief as to the character of S in evidence would not prevent you from finding that he knowingly possessed S in evidence.
In regard to the fourth element, that the defendant had the intent to distribute S in evidence, "distribute" means the transfer, actual, constructive or attempted, from one person to another of an item.[6] It is not necessary that the item be transferred in exchange for payment or promise of payment of money or anything of value.[7]
"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 act, 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 and packing of S together with all of the other evidence in the case to aid you in your determination of the element of intent to distribute.[8]
To reiterate, the four elements of this offense are that:
1. S in evidence is not a controlled dangerous substance or controlled dangerous analog.
2. A. The defendant made an expressed or implied representation to the recipient that S in evidence is a controlled dangerous substance, specifically (e.g., cocaine)
or
B. The defendant made an expressed or implied representation to the recipient that S in evidence is of such nature, appearance or effect that the recipient will be able to distribute or use S in evidence as a controlled dangerous substance, specifically (e.g., cocaine).
or
C. Defendant possessed or had under his control with intent to distribute S in evidence under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance, specifically (e.g., cocaine).
3. The defendant possessed or had under his control, S______ in evidence; and
4. The defendant had the 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 the State has failed to prove any of these elements beyond a reasonable doubt, then you must return a verdict of not guilty.
[1] The statute provides that this offense may be committed in three ways; that is by representation that the substance is a CDS, by representation that the substance can be used or distributed as a CDS, and under circumstances under which a reasonable person would believe the substance to be a CDS. The circumstances of the case will determine which one (or more) of these sections should be charged.
[2] N.J.S.A. 2C:35-2
[3] N.J.S.A. 2C:35‑11a(3)(a) through (c). This language only should be charged when the third alternative is applicable.
[4] N.J.S.A. 2C:35-11A(3)(A) through (C). This language only should be charged when the third alternative is applicable.
[5] N.J.S.A. 2C:35-11c.
[6] This definition is taken from the definitions of "distribute" and "deliver" set forth in N.J.S.A. 2C:35‑2.
[7] State v. Heitzman 209 N.J.Super. 617, 621 (App. Div. 1986), aff'd 107 N.J. 603 (1987).
[8] State v. Perez, 218 N.J.Super. 478, 482-486 (App. Div. 1987).