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Kenneth Vercammen's 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 person's 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 defendant's 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), aff'd
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 driver's 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
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