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Distribution of Drugs (Marijuana) in NJ 2C:35-5
|H. SCOTT AALSBERG, ESQ., P.C.
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The pertinent part of the NJ Drug Distribution Law is discussed below (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. 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
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.
|Attorney H. Scott Aalsberg, Esq.,
was ranked one of the Top Ten
NJ Criminal Lawyers by the
National Academy of Criminal
For the State of New Jersey to
prove someone distributed
drugs, the prosecutor will have
to provide expert testimony.
Generally the testimony of a
police officer or detective, that
the person charged did intend
to distribute the alleged drugs.
The expert testimony is a
necessary element of the
charge as the average juror
may not understand the
significance of drug packaging,
cutting agents, baggies, stash
sites and the roles that each
one of these plays in a drug
distribution case in NJ. This is
the best area in which a
defense lawyer can attack the
states case in regards to the
alleged distribution charge
because of a 2016 case State
vs. Simms 224 NJ 393. This
case held that an expert should
not be permitted to testify on
any ultimate issue and that this
issue is to be decided by the
trier of fact. Thus, the
testimony must be for the
purpose of informing the jury
facts that are beyond the
knowledge of the average
|How A Marijuana
Distribution Drug Charge
is Proven in