Distribution of an Imitation Controlled Dangerous Substance

Approved 3-19-90

DISTRIBUTION OF AN IMITATION

CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 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 distribute any substance which is not a controlled dangerous substance or controlled substance analog:

[Read Appropriate Section or Sections 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) Upon 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. 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).

3. The defendant distributed S in evidence.

4. The defendant, acted knowingly in distributing S in evidence.[2]

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.[3] 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.][4]

[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, 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 has a chemical structure substantially similar to that of (e.g., cocaine) and 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 analogs; 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.][5]

In regard to the third element, that the defendant distributed S in evidence, to "distribute" means the transfer, actual, constructive or attempted,[6] 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.[7]

In regard to the fourth element, the State must prove, as I have stated, that the defendant acted knowingly in distributing S .

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/she) 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.[8]

Remember that when we speak of knowingly, we are speaking of a condition of the mind that cannot be seen. It is not necessary for the State to prove the existence of such mental state by direct evidence such as a statement by the defendant that (he/she) had particular knowledge. Knowledge as a separate proposition of proof does not commonly exist. It 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.

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.][9] Thus, if you were to find that the defendant acted knowingly in distributing S in evidence but mistakenly believed that S in evidence was a controlled dangerous substance [or controlled substance analog], as opposed to an imitation controlled dangerous substance [or imitation controlled substance analog], the defendant's mistaken belief as to the character of S evidence would not prevent you from finding that the defendant acted knowingly in distributing S in evidence.

To reiterate, the four elements of this offense are that

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 distributed S in evidence.

4. The defendant acted knowingly in distributing 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] The statute does not specify a mental element. (Compare N.J.S.A. 2C:35-5 which specifies a knowingly or purposefully distribution of CDS.) Nonetheless, in light of N.J.S.A. 2C:2-2c(3) it would seem that a knowing distribution is required.

[3] N.J.S.A. 2C:35-2.

[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:35-11a(3)(a) through (c). This language should only be charged when the third alternative is applicable.

[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] N.J.S.A. 2C:2-2b(1).

[9] N.J.S.A. 2C:35-11c.