POSSESSION OF GAMBLING RECORDS - LOTTERY/POLICY

(N.J.S.A. 2C:37-3a(2))
Count _____ of the indictment charges defendant with the offense of possession of gambling records commonly used in the operation, promotion or playing of a [select as appropriate: lottery or policy] scheme or enterprise. In pertinent part, the indictment alleges that:
(Read material part of Count ____ to jury)
The statute that defendant is accused of violating states that: A [defendant] is guilty of possession of gambling records when, with knowledge of the contents thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation or promotion of a [lottery/policy] scheme or enterprise.
In order to convict defendant of this offense, the State must proved beyond a reasonable doubt each of the following elements:
1. That defendant knowingly possessed a particular writing, paper, instrument or article;1
2. That [S- /the writing, paper, etc.] is of a kind commonly used in an unlawful [lottery/policy] scheme or enterprise; and
3. That defendant possessed [S- /the writing, paper, etc.] with knowledge of its contents.
The first element that the State must prove beyond a reasonable doubt is that defendant knowingly possessed [S- /a particular writing, paper, instrument or article]. A defendant acts "knowingly" with respect to the nature of his/her conduct or the attendant circumstances if defendant is aware that his/her conduct is of that nature, or that such circumstances exist, or defendant is aware of a high probability of their existence. A defendant acts knowingly with respect to his/her conduct if defendant is aware that it is practically certain that his/her conduct will cause such a result. The term "with knowledge" has the same meaning.2
1 If the writing, paper, instrument or article in question has been admitted in evidence, refer to same by its exhibit number, e.g., S-24.
2 N.J.S.A. 2C:2-2b(2).
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You should understand that knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that defendant stated, for example, that he/she acted with knowledge when he/she did a particular thing. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances. The place where the acts occurred and all that was done or said by defendant preceding, connected with, and immediately succeeding the events in question are among the circumstances to be considered.
As used in the statute, the term possession means: [Utilize model jury charge for actual/constructive/joint possession, as applicable]
The second element that the State must prove beyond a reasonable doubt is that [S- /the writing, paper, etc.] is of a kind commonly used in a [lottery/policy] scheme or enterprise.
[CHARGE AS APPLICABLE: LOTTERY/POLICY]
As used in the statute, the term “lottery” means an unlawful gambling scheme in which (a) the players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one or more of which chances are to be designated the winning ones; (b) the winning chances are to be determined by a drawing or by some other method based upon the element of chance; and (c) the holders of the winning chances are to receive something of value.3 The term “unlawful” means not specifically authorized by law.4
As used in the statute, the term "policy" or "the numbers game" means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the
3 N.J.S.A. 2C:37-1h.
4 N.J.S.A. 2C:37-1k.
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basis of the outcome or outcomes of a future contingent event or events otherwise unrelated to the particular scheme.5
The third element that the State must prove beyond a reasonable doubt is that defendant possessed [S- /the writing, paper, etc.] with knowledge of its contents. Regarding this third element, you must bear in mind that the requirement that defendant have knowledge the exhibit’s/writing’s contents is a requirement separate and distinct from that of the first element which requires that defendant’s possession of the writing itself be knowing. In other words, conviction for possession of [lottery/policy] records requires that (1) defendant possess a writing knowingly and (2) that defendant know that the writing that he/she possesses is of a kind commonly used in a [lottery/policy] scheme or enterprise. In order to sustain its burden of proof, however, it is not necessary for the State to prove the existence of an actual particular [lottery/ policy] scheme or enterprise.
* * * * *
[STATUTORY DEFENSE – CHARGE AS APPLICABLE]
Defendant contends that he/she is not guilty of possession of [lottery/policy] records because [S- /the writing, paper, etc.] allegedly possessed by defendant constituted, reflected or represented plays or chances of defendant himself/herself in a number not exceeding ten. Under the statute, this is a defense to the charge of possession of [lottery/policy] records.6
Defendant must prove this defense by clear and convincing evidence. This is to be distinguished from the State's burden of proving defendant's guilt beyond a reasonable doubt. Clear and convincing evidence is that which produces in your mind a firm belief or conviction as to the truth of the fact sought to be established and is evidence so clear, direct, weighty and convincing as to enable you to come to a clear conviction, without hesitancy, of the truth of the matter in issue.7 Defendant need not prove that [S- /the writing/paper, etc.] represent
5 See N.J.S.A. 2C:37-1i.
6 See N.J.S.A. 2C:37-3b(1).
7 See In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), mod. o.g. and aff'd 90 N.J. 361 (1982), cert. den. sub nom. Perlman v. Attorney General of New Jersey, 459 U.S. 1081 (1982).
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his/her personal plays or chances in a number not exceeding ten beyond a reasonable doubt, but rather, the evidence admitted in support of this defense should produce in your mind a firm belief that defendant's contention is true. In other words, the law does not require absolute certainty but reasonable certainty that it is true. If you find by clear and convincing evidence that [S- /the writing, paper, etc.] represent defendant's personal plays or chances in a number not exceeding ten, he/she must be found not guilty of Count ____.
* * * * *
[STATUTORY DEFENSE – CHARGE AS APPLICABLE]
Defendant contends that he/she is not guilty because defendant did not use or intend to use [S- /the writing, paper, instrument or article allegedly possessed by defendant] in the operation or promotion of a [lottery/policy] scheme or enterprise. Under the statute, this is a defense to the charge of possession of [lottery/policy] records.8 I have used the phrase "intend to use." Intending to do something means the purpose to do something, a resolution to do a particular act or accomplish a certain thing. Intent is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. If the defendant neither used nor intended to use [S- /the writing, paper, instrument or article allegedly possessed by him/her] in the operation or promotion of a [lottery/policy] scheme or enterprise, this is a defense to the charge of possession of [lottery/policy] records. The defendant must prove this defense by clear and convincing evidence. [Continue with instruction regarding clear and convincin
* * * * *
If the State has failed to prove beyond a reasonable doubt any of the elements of the offense, you must find defendant not guilty. But if you determine that the State has proved each of the elements of possession of [lottery/policy] records beyond a reasonable doubt, you must find defendant guilty of that offense.
* * * * *
8 N.J.S.A. 2C:37-3b(2).
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If you conclude that defendant is guilty of possession of [lottery/policy] records, you must then determine whether the State has proved beyond a reasonable doubt that defendant possessed [lottery/policy] records that constitute, reflect or represent more than 100 plays or chances in a [lottery/policy] operation or scheme.9
YES ________ NO ________
9 Possession of lottery/policy records that constitute, reflect or represent over 100 plays or chances is a third degree offense. Otherwise, possession of lottery/policy records is a disorderly person’s offense. See N.J.S.A. 2C:37-2c(2).

POSSESSION OF GAMBLING RECORDS - BOOKMAKING

(N.J.S.A. 2C:37-3a(1))
Count _____ of the indictment charges defendant with committing the offense of possession of gambling records used in bookmaking. In pertinent part, the indictment alleges that:
(Read material part of Count ____ to jury)
The statute that defendant is accused of violating states that: A [defendant] is guilty of possession of gambling records when, with knowledge of the contents thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise.1
In order to convict defendant of this offense, you must be satisfied that the State has proved beyond a reasonable doubt each of the following elements:
1. That defendant knowingly possessed a particular writing, paper, instrument or article;2
2. That [S- /the writing, paper, etc.] is of a kind commonly used in a bookmaking scheme or enterprise; and
3. That defendant possessed [S- /the writing, paper, etc.] with knowledge of its contents.
The first element that the State must prove beyond a reasonable doubt is that defendant knowingly possessed [S- /a particular writing, paper, instrument or article.] A defendant acts "knowingly" with respect to the nature of his/her conduct or the attendant circumstances if defendant is aware that his/her conduct is of that nature, or that such circumstances exist, or defendant is aware of a high probability of their existence. A defendant acts knowingly with
1 N.J.S.A. 2C:37-3a(1). Types of paper once common to bookmaking operations like flash paper and water soluble paper are specifically mentioned in the statute's text and should be incorporated into the definition of the offense where factually applicable.
2 If the writing, paper, instrument or article in question has been admitted in evidence, refer to same by its exhibit number, e.g., S-24.
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respect to his/her conduct if defendant is aware that it is practically certain that his/her conduct will cause such a result. The term "with knowledge" has the same meaning.3
You should understand that knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that defendant stated, for example, that he/she acted with knowledge when he/she did a particular thing. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances. The place where the acts occurred and all that was done or said by defendant preceding, connected with, and immediately succeeding the events in question are among the circumstances to be considered.
As used in the statute, the term possession means: [Utilize model jury charge for actual/constructive/joint possession, as applicable]
The second element that the State must prove beyond a reasonable doubt is that [S-___/the writing, paper, etc.] is of a kind commonly used in a bookmaking scheme or enterprise. The term "bookmaking" means advancing gambling activity by unlawfully accepting bets from members of the public [based] upon the outcome of future contingent events as a business.4
The third element that the State must prove beyond a reasonable doubt is that defendant possessed [S- /the writing, paper, etc.] with knowledge of its contents. Regarding this third element, you must bear in mind that the requirement that defendant have knowledge of the exhibit’s/writing’s content is a requirement separate and distinct from that of the first element which requires that defendant’s possession of the writing itself be knowing. In other words, conviction for possession of bookmaking records requires that (1) defendant possess a writing knowingly and (2) that defendant know that the writing that he/she possesses is of a kind commonly used in a bookmaking operation or scheme. In order to sustain its burden of proof, however, it is not necessary for the State to prove the existence of an actual particular bookmaking scheme or enterprise.
* * * * *
3 N.J.S.A. 2C:2-2b(2).
4 N.J.S.A. 2C:37-1(g).
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[STATUTORY DEFENSE – CHARGE AS APPLICABLE]
Defendant contends that he/she is not guilty of possession of bookmaking records because [S- / the writing/paper, etc.] allegedly possessed by defendant constituted, reflected or represented bets of defendant himself/herself in a number not exceeding ten. Under the statute, this is a defense to the charge of possession of bookmaking records.5
Defendant must prove this defense by clear and convincing evidence. This is to be distinguished from the State's burden of proving defendant's guilt beyond a reasonable doubt. Clear and convincing evidence is that which produces in your mind a firm belief or conviction as to the truth of the fact sought to be established and is evidence so clear, direct, weighty and convincing as to enable you to come to a clear conviction, without hesitancy, of the truth of the matter in issue.6 Defendant need not prove that [S-____/the writing/paper, etc.] represent his/her personal bets in a number not exceeding ten beyond a reasonable doubt, but rather, the evidence admitted in support of this defense should produce in your mind a firm belief that defendant's contention is true. In other words, the law does not require absolute certainty, but reasonable certainty that it is true. If you find by clear and convincing evidence that [S- / the writing/paper, etc.] represent defendant's personal bets in a number not exceeding ten, he/she must be found not guilty of Count ____.
* * * * *
[STATUTORY DEFENSE – CHARGE AS APPLICABLE]
Defendant contends that he/she is not guilty because defendant did not use or intend to use [S- /the writing, paper, instrument or article allegedly possessed by defendant] in the operation or promotion of a bookmaking scheme or enterprise. I have used the phrase "intend to use." Intending to do something means the purpose to do something, a resolution to do a particular act or accomplish a certain thing. Intent is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. If the defendant neither used nor intended to use [S- /the writing, paper, instrument or article allegedly
5 See N.J.S.A. 2C:37-3b(1)
6 See In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), mod. o.g. and aff'd 90 N.J. 361 (1982), cert. den. sub nom. Perlman v. Attorney General of New Jersey, 459 U.S. 1081 (1982).
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possessed by him/her] in the operation or promotion of a bookmaking scheme or enterprise, this is a defense to the charge of possession of bookmaking records.7 The defendant must prove this defense by clear and convincing evidence. [Continue with instruction regarding clear and convincing as set forth above.]
* * * * *
If you find that the State has failed to prove beyond a reasonable doubt any of the elements of the offense, you must find defendant not guilty. But if you determine that the State has proved each of the elements of possession of bookmaking records beyond a reasonable doubt, you must find defendant guilty of that offense.
* * * * *
If you conclude that defendant is guilty of possession of bookmaking records, you must then determine whether the State has proved beyond a reasonable doubt that the bookmaking records possessed by defendant constitute, reflect or represent more than five bets totaling more than $1,000.8
YES _____ NO _____
7 See N.J.S.A. 2C:37-3b(2).
8 Possession of bookmaking records that constitute, reflect or represent more than five bets totaling more than $1,000 is a third degree offense. Otherwise, possession of bookmaking records is a disorderly person’s offense. See N.J.S.A. 2C:37-3c(1).

PROMOTING GAMBLING – BY CONDUCT THAT MATERIALLY AIDS GAMBLING ACTIVITY

(N.J.S.A. 2C:37-2a(2))
Count _____ of the indictment charges defendant with the offense of promoting
gambling. In pertinent part, the indictment alleges that:
(Read material part of Count ____ to jury)
The statute that defendant is accused of violating states that: A [defendant] is guilty of
promoting gambling when he/she knowingly engages in conduct which materially aids any
form of gambling activity.
In order to convict defendant of this offense, the State must prove beyond a reasonable
doubt each of the following elements:
1. That defendant engaged in conduct that materially aided
unlawful gambling activity; and
2. That defendant acted knowingly when he/she engaged in
such conduct.
The first element that the State must prove beyond a reasonable doubt is that
defendant engaged in conduct that materially aided unlawful gambling activity. As used in
the statute, the term “unlawful” means not specifically authorized by law.1 The term
“gambling” means staking or risking something of value upon the outcome of a contest of
chance or a future contingent event not under the actor’s control or influence, upon an
agreement or understanding that he/she will receive something of value in the event of a
certain outcome.2 The form of gambling allegedly involved in this case is [bookmaking or
lottery/policy].
1 See N.J.S.A. 2C:37-1k.
2 See N.J.S.A. 2C:37-1b.
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[CHARGE AS APPLICABLE]
The term "bookmaking" means advancing gambling activity by unlawfully accepting
bets from members of the public [based] upon the outcome of future contingent events as a
business.3
[OR]
The term “lottery” means an unlawful gambling scheme in which (a) the players pay
or agree to pay something of value for chances, represented and differentiated by numbers or
by combinations of numbers or by some other media, one or more of which chances are to be
designated the winning ones; and (b) the winning chances are to be determined by a drawing
or by some other method based upon the element of chance; and (c) the holders of the
winning chances are to receive something of value.4
[OR]
The term “policy” or “the numbers game” means a form of lottery in which the
winning chances or plays are not determined upon the basis of a drawing or other act on the
part of persons conducting or connected with the scheme, but upon the basis of the outcome
or outcomes of a future contingent event or events otherwise unrelated to the particular
scheme.5
The term materially aids gambling activity includes but is not limited to conduct
directed toward the creating or establishment of the particular game, contest, scheme, device
or activity involved; toward the acquisition or maintenance of premises, paraphernalia,
equipment or apparatus therefore; toward the solicitation or inducement of persons to
participate therein; toward the actual conduct of the playing phases thereof; toward the
arrangement of any of its financial or recording phases, or toward any other phase of its
3 See N.J.S.A. 2C:37-1g.
4 See N.J.S.A. 2C:37-1h.
5 See N.J.S.A. 2C:37-1i.
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operation.6 It is not necessary, however, for the State to prove that defendant received any
compensation for his conduct.7
The second element that the State must prove beyond a reasonable doubt is that
defendant acted knowingly when he/she engaged in such conduct. A defendant acts
knowingly or with knowledge with respect to the nature of his/her conduct or the attendant
circumstances if defendant is aware that his/her conduct is of that nature, or that such
circumstances exist, or defendant is aware of a high probability of their existence. A
defendant acts knowingly with respect to a result of his/her conduct if defendant is aware that
it is practically certain that his/her conduct will cause such a result.8 In this case, it is alleged
that defendant knew that he/she was providing material aid to a gambling activity when
he/she [insert act[s] alleged.]
You should understand that knowledge is a condition of the mind. It cannot be seen.
It can only be determined by inferences from conduct, words or acts. Therefore, it is not
necessary for the State to produce witnesses to testify that defendant stated, for example, that
he/she acted with knowledge when he/she did a particular thing. It is within your power to
find that proof of knowledge has been furnished beyond a reasonable doubt by inference
which may arise from the nature of the acts and the surrounding circumstances. The place
where the acts occurred and all that was done or said by defendant preceding, connected with,
and immediately succeeding the events in question are among the circumstances to be
considered.
* * * * *
[STATUTORY DEFENSE – CHARGE IF APPLICABLE]
Defendant contends that he/she is not guilty of promoting gambling because he/she
was a player rather than a provider of material aid to the gambling activity. Under the statute,
6 See N.J.S.A. 2C:37-2a(2). As noted therein, the examples provided in the statute are not to be
considered exhaustive of the ways in which a defendant can materially aid gambling activity.
7 See 33A New Jersey Practice (Miller), § 572 at 7.
8 See N.J.S.A. 2C:2-2b(2).
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it is a defense to the charge of promoting gambling that defendant was a player rather than a
participant in the [bookmaking/lottery/policy] scheme or enterprise.
A "player" means a person who engages in any form of gambling as a contestant or
bettor, without receiving or becoming entitled to receive any profit therefrom other than
his/her personal gambling winnings, and who does not otherwise render any material
assistance to the establishment, conduct or operation of the particular gambling activity.9
Defendant must prove this defense by clear and convincing evidence.10 This is to be
distinguished from the State's burden of proving defendant's guilt beyond a reasonable doubt.
Clear and convincing evidence is that which produces in your mind a firm belief or conviction
as to the truth of the fact sought to be established and is evidence so clear, direct, weighty and
convincing as to enable you to come to a clear conviction, without hesitancy, of the truth of
the matter in issue.11
Regarding the "player" defense asserted in this case, defendant need not prove that
he/she was a player beyond a reasonable doubt, but rather, the evidence admitted in support of
this defense should produce in your mind a firm belief or conviction that defendant's
contention that he/she participated only as a player is true. In other words, the law does not
require absolute certainty that defendant participated as a player, but reasonable certainty that
it is true. If you find by clear and convincing evidence that defendant was a player rather than
a participant in a [bookmaking/lottery/policy] scheme or enterprise, he/she must be found not
guilty of Count ____.
* * * * * *
If you find that the State has failed to proved beyond a reasonable doubt any of the
elements of the offense, you must find defendant not guilty. But if you determine that the
State has proved each of the elements of promoting gambling through providing material aid
9 See N.J.S.A. 2C:37-1c.
10 See N.J.S.A. 2C:37-2c.
11 See In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981),
mod. o.g. and aff'd 90 N.J. 361 (1982), cert. den. sub nom. Perlman v. Attorney General of New Jersey, 459 U.S.
1081 (1982).
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to gambling activity beyond a reasonable doubt, you must find defendant guilty of that
offense.
If you conclude that defendant is guilty of the offense, you must then determine
whether the State has proved the following beyond a reasonable doubt:
[CHARGE AS APPLICABLE]
In providing material aid to a bookmaking scheme or operation,
1. That defendant aided a bookmaking scheme or operation that
received or accepted in any one day more than five bets totaling
more than $1,000.12
YES ________ NO ________
2. If the answer to the above question is NO, determine whether the
State has proved beyond a reasonable doubt that defendant aided a
bookmaking scheme or operation that received or accepted three or
more bets in any two week period.13
YES ________ NO ________
[OR]
In providing material aid to a [lottery/policy] scheme or operation,
1. That defendant aided a [lottery/policy] scheme or operation that
received money or written records from a person whose chances or
plays are represented by such money or records.
YES ________ NO ________
[OR]
12 Conviction on this form of promoting gambling through bookmaking is a third degree offense. See
N.J.S.A. 2C:37-2b(1).
13 Conviction on this form of promoting gambling through bookmaking is a fourth degree offense.
Otherwise, promoting gambling is a disorderly person’s offense. See N.J.S.A. 2C:37-2b(2). If a verdict sheet is
to be submitted to the jury, the jury's findings on these gradation of offense issues should be indicated on it.
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2. That defendant aided a [lottery/policy] scheme or operation that
received more than $100 in any one day of money played in that
[lottery/policy] scheme or enterprise.14
YES ________ NO ________
14 Promoting gambling to the extent noted above is a third degree offense. Otherwise, promoting
gambling through materially aiding an unlawful lottery/policy scheme or enterprise is a disorderly person’s
offense. See N.J.S.A. 2C:37-2b(2).

PROMOTING GAMBLING – LOTTERY/POLICY

(N.J.S.A. 2C:37-2a(1))
Count of the indictment charges defendant with promoting gambling through a [lottery/policy] scheme or enterprise. In pertinent part, the indictment alleges that
(Read material part of Count to jury)
The statute that defendant is accused of violating states that: a [defendant] is guilty of promoting gambling when he/she knowingly accepts or receives money or other property pursuant to an agreement or understanding with [another] person whereby [that person] participates or will participate in the proceeds of gambling. In this case, the gambling activity that defendant is accused of promoting is alleged to be an unlawful [lottery/policy] scheme or enterprise.
In order to convict defendant of this offense, the State must prove beyond a reasonable doubt each of the following elements:
1. That defendant accepted or received money or other property from another person;
2. That the money or other property was accepted or received pursuant to an agreement or understanding whereby the other person participates or will participate in the proceeds of a gambling operation; and
3. That defendant acted knowingly when he/she engaged in such conduct.
The first element that the State must prove beyond a reasonable doubt is that defendant accepted or received money or other property from another person.
The second element that the State must prove beyond a reasonable doubt is that the money or other property was accepted pursuant to an agreement or understanding that the other person participates or will participate in the proceeds of gambling activity. Under the statute, “gambling” means staking or risking something of value upon the outcome of a contest of chance or a future contingent event not under the actor’s control or influence, upon an agreement or understanding that he/she will receive something of value in the event of a certain outcome.1 The type of
1 See N.J.S.A. 2C:37-1b.
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gambling activity that defendant stands accused of promoting is the operation of an unlawful [lottery/policy] scheme or enterprise.
[CHARGE AS APPLICABLE]
“Lottery” means an unlawful2 gambling scheme in which (a) the players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one or more of which chances are to be designated the winning ones; and (b) the winning chances are to be determined by a drawing or by some other method based upon the element of chance; and (c) the holders of the winning chances are to receive something of value.3
[OR]
“Policy” or “the numbers game” means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome or outcomes of a future contingent event or events otherwise unrelated to the particular scheme.4
The third element that the State must prove beyond a reasonable doubt is that defendant acted knowingly when he/she engaged in such conduct. A defendant acts knowingly or with knowledge with respect to the nature of his/her conduct or the attendant circumstances if defendant is aware that his/her conduct is of that nature, or that such circumstances exist, or defendant is aware of a high probability of their existence. A defendant acts knowingly with respect to a result of his/her conduct if defendant is aware that it is practically certain that his/her conduct will cause such a result.5 In this case, it is alleged that when defendant allegedly accepted or received (money/property) from (person), defendant knew that (person) would thereby participate in the proceeds of a [lottery/policy] scheme or enterprise.
You should understand that knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary
2 As used in the statute, the term "unlawful" means not specifically authorized by law. See N.J.S.A. 2C:37-1k.
3 See N.J.S.A. 2C:37-1g.
4 See N.J.S.A. 2C:37-1i.
5 See N.J.S.A. 2C:2-2(b).
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for the State to produce witnesses to testify that defendant stated, for example, that he/she acted with knowledge when he/she did a particular thing. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances. The place where the acts occurred and all that was done or said by defendant preceding, connected with, and immediately succeeding the events in question are among the circumstances to be considered.
* * * * *
[STATUTORY DEFENSE – CHARGE IF APPLICABLE]
Defendant contends that he/she is not guilty of promoting gambling through a [lottery/policy] scheme or enterprise because he/she was a player rather than a participant in the [lottery/policy] scheme or enterprise. Under the statute, it is a defense to the charge of promoting gambling that defendant was a player rather than a participant in the [lottery/policy] scheme or enterprise.
A "player" means a person who engages in any form of gambling as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than his/her personal gambling winnings and who does not otherwise render any material assistance to the establishment, conduct or operation of the particular gambling activity.6
Defendant must prove this defense by clear and convincing evidence.7 This is to be distinguished from the State's burden of proving defendant's guilt beyond a reasonable doubt. Clear and convincing evidence is that which produces in your mind a firm belief or conviction as to the truth of the fact sought to be established and is evidence so clear, direct, weighty and convincing as to enable you to come to a clear conviction, without hesitancy, of the truth of the matter in issue.8
Regarding the "player" defense asserted in this case, defendant need not prove that he/she was a player beyond a reasonable doubt, but rather, the evidence admitted in support of this
6 See N.J.S.A. 2C:37-1c.
7 See N.J.S.A. 2C:37-2c.
8 See In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), mod. o.g. and aff'd 90 N.J. 361 (1982), cert. den. sub nom. Perlman v. Attorney General of New Jersey, 459 U.S. 1081 (1982).
PROMOTING GAMBLING – LOTTERY/POLICY
(N.J.S.A. 2C:37-2a(1))
Page 4 of 4
defense should produce in your mind a firm belief or conviction that defendant's contention that he/she participated only as a player is true. In other words, the law does not require absolute certainty that defendant participated as a player, but reasonable certainty that it is true. If you find by clear and convincing evidence that defendant was a player rather than a participant in a [lottery/policy] scheme or enterprise, he/she must be found not guilty of Count ____.
* * * * *
If you find that the State has failed to prove beyond a reasonable doubt any of the elements of the offense, you must find defendant not guilty. But if you find that the State has proved each of the elements of promoting gambling through a [lottery/policy] scheme or enterprise beyond a reasonable doubt, you must find defendant guilty of that offense.
* * * * *
If you conclude that defendant has promoted gambling through a [lottery/policy] scheme or enterprise, you must then determine whether the State has proved the following beyond a reasonable doubt in connection with that [lottery/policy] scheme or operation:
a. defendant received money or written records from a person whose chances or plays are represented by such money or records.
YES ________ NO ________
[OR]
b. defendant received more than $100 in any one day of money played in the [lottery/policy] scheme or enterprise.9
YES ________ NO ________
9 Promoting gambling to the extent noted above is a third degree offense. Otherwise, promoting gambling through an unlawful lottery/policy scheme or enterprise is a disorderly person’s offense. See N.J.S.A. 2C:37-2b(2). If both of the above questions are submitted to the jury, the verdict sheet should specify the jury's determination regarding each of them.

PROMOTING GAMBLING – BOOKMAKING

(N.J.S.A. 2C:37-2a(1))
Count of the indictment charges defendant with committing the offense of promoting gambling through bookmaking. In pertinent part, the indictment alleges that
(Read material part of Count to jury)
The statute that defendant is accused of violating states that: a [defendant] is guilty of promoting gambling when he/she knowingly accepts or receives money or other property pursuant to an agreement or understanding with [another] person whereby [that person] participates or will participate in the proceeds of gambling activity. In this case, the form of gambling activity that defendant is accused of promoting is alleged to be bookmaking.
In order to convict defendant of this offense, the State must prove beyond a reasonable doubt each of the following elements:
1. That defendant accepted or received money or other property from another person;
2. That the money or other property was accepted or received pursuant to an agreement or understanding whereby the other person participates or will participate in the proceeds of gambling activity, and
3. That defendant acted knowingly when he/she engaged in such conduct.
The first element that the State must prove beyond a reasonable doubt is that defendant accepted or received money or other property from another person.
The second element that the State must prove beyond a reasonable doubt is that the money or other property was accepted pursuant to an agreement or understanding that the other person participates or will participate in the proceeds of gambling activity. Under the statute, “gambling” means staking or risking something of value upon the outcome of a contest of chance or a future contingent event not under the actor’s control or influence, upon an agreement or understanding that he/she will receive something of value in the event of a certain outcome.1
1 See N.J.S.A. 2C:37-1b.
PROMOTING GAMBLING - BOOKMAKING
(N.J.S.A. 2C:37-2a(1)
Page 2 of 4
The type of gambling activity that defendant stands accused of promoting is bookmaking. The statute defines bookmaking as advancing gambling activity by the unlawful accepting of bets from members of the public [based] upon the outcome of future contingent events as a business.2
The third element that the State must prove beyond a reasonable doubt is that defendant acted knowingly when he/she engaged in such conduct. A defendant acts knowingly or with knowledge with respect to the nature of his/her conduct or the attendant circumstances if defendant is aware that his/her conduct is of that nature, or that such circumstances exist, or defendant is aware of a high probability of their existence. A defendant acts knowingly with respect to a result of his/her conduct if defendant is aware that it is practically certain that his/her conduct will cause such a result.3 In this case, it is alleged that when defendant allegedly accepted or received (money/property) from (person), defendant knew that (person) would thereby participate in the proceeds of a bookmaking scheme or enterprise.
You should understand that knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that defendant stated, for example, that he/she acted with knowledge when he/she did a particular thing. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances. The place where the acts occurred and all that was done or said by defendant preceding, connected with, and immediately succeeding the events in question are among the circumstances to be considered.
* * * * *
[STATUTORY DEFENSE – CHARGE IF APPLICABLE]
Defendant contends that he/she is not guilty of promoting gambling through bookmaking because he/she was a "player" rather than a participant in the bookmaking scheme or enterprise. Under the statute, it is a defense to the charge of promoting gambling that defendant was a player rather than a participant in the bookmaking scheme or enterprise. A "player" means a person who engages in any form of gambling as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than his/her personal gambling winnings and who
2 See N.J.S.A. 2C:37-1g.
3 See N.J.S.A. 2C:2-2b (2).
PROMOTING GAMBLING - BOOKMAKING
(N.J.S.A. 2C:37-2a(1)
Page 3 of 4
does not otherwise render any material assistance to the establishment, conduct or operation of the particular gambling activity.4
Defendant must prove this defense by clear and convincing evidence.5 This is to be distinguished from the State's burden of proving defendant's guilt beyond a reasonable doubt. Clear and convincing evidence is that which produces in your mind a firm belief or conviction as to the truth of the fact sought to be established and is evidence so clear, direct, weighty and convincing as to enable you to come to a clear conviction, without hesitancy, of the truth of the matter in issue.6
Regarding the "player" defense asserted in this case, defendant need not prove that he/she was a player beyond a reasonable doubt, but rather, the evidence admitted in support of this defense should produce in your mind a firm belief or conviction that defendant's contention that he/she participated only as a player is true. In other words, the law does not require absolute certainty that defendant participated as a player, but reasonable certainty that it is true. If you find by clear and convincing evidence that defendant was a player rather than a participant in a bookmaking scheme or enterprise, he/she must be found not guilty of Count ____.
* * * * *
If you find that the State has failed to prove beyond a reasonable doubt any of the elements of the offense, you must find defendant not guilty. But if you find that the State has proved each of the elements of promoting gambling through bookmaking beyond a reasonable doubt, you must find defendant guilty of that offense.
* * * * *
If you conclude that defendant has promoted gambling through bookmaking, you must then determine whether the State has proved the following beyond a reasonable doubt:
4 See N.J.S.A. 2C:37-1c.
5 See N.J.S.A. 2C:37-2c.
6 See In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), mod. o.g. and aff'd 90 N.J. 361 (1982), cert. den. sub nom. Perlman v. Attorney General of New Jersey, 459 U.S. 1081 (1982).
PROMOTING GAMBLING - BOOKMAKING
(N.J.S.A. 2C:37-2a(1)
Page 4 of 4
1. That defendant promoted bookmaking to the extent that he received or accepted in any one day more than five bets totaling more than $1,000.7
YES ________ NO ________
2. If the answer to the above question is NO, determine whether the State has proved beyond a reasonable doubt that defendant received or accepted three or more bets in any two week period.8
YES ________ NO ________
7 Conviction of this form of promoting gambling through bookmaking is a third degree offense. See N.J.S.A. 2C:37-2b(1).
8 Conviction of this form of promoting gambling through bookmaking is a fourth degree offense. Otherwise, promoting gambling is a disorderly person’s offense. See N.J.S.A. 2C:37-2b (2). If a verdict sheet is to be submitted to the jury, the jury's findings on these gradation of offense issues should be indicated on it.

OBTAINING A CONTROLLED DANGEROUS SUBSTANCE BY FRAUD

(N.J.S.A. 2C:35-13)
The defendant is charged with obtaining a controlled dangerous substance by fraud. The applicable statute reads in pertinent part:
It shall be unlawful for any person to acquire or obtain possession of a controlled dangerous substance . . . by misrepresentation, fraud, forgery, deception or subterfuge.1
To obtain a conviction on this charge the State must prove each of the following elements beyond a reasonable doubt:
(1) That defendant acquired or obtained possession of a controlled dangerous substance;
(2) That defendant did so by misrepresentation, fraud, forgery, deception or subterfuge; and
(3) That defendant acted knowingly.2
Possession is a knowing intentional control of a designated thing, accompanied by a knowledge of its character. Controlled dangerous substances are defined by statute and specifically include .
Misrepresentation means a false or incorrect account, explanation or presentation. Fraud is an intentional deception designed to cause a person to give up property or some other lawful right. Forgery is the intentional and unauthorized alteration, change, creation, completion, execution, authentication, issuance or transfer of any writing. Deception is the purposeful creation or reinforcement of a false impression, or the prevention of another from acquiring information which would affect that person's judgment of a transaction, or the failure to correct a false impression which was previously created or reinforced. Subterfuge is any plan or action, device or artifice used to evade the truth.
A person acts knowingly with respect to the nature of (his/her) conduct or the attendant
1 By its terms, the statute also applies to any "controlled substance analog." This should be incorporated into the charge in appropriate cases. A definition for a "controlled substance analog" can be found in N.J.S. 2C:35-2.
It should be noted that the statute also makes it unlawful "for any person to acquire or obtain possession of a forged or fraudulent certificate of destruction required pursuant to N.J.S. 2C:35-21. "This Model Charge is not intended to cover such a situation.
2 N.J.S.A. 2C:2-2c(3).
OBTAINING A CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-13)
Page 2 of 2
circumstances if the person is aware that (his/her) conduct is of that nature, or that such circumstances exist, or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if the person is aware that it is practically certain that (his/her) conduct will cause such a result.
Thus, a conviction for the crime of obtaining a controlled dangerous substance by fraud would require proof beyond a reasonable doubt that the defendant acquired or obtained possession of a controlled dangerous substance, that (he/she) did so by fraudulent means, and that (he/she) acted knowingly, as I have defined these terms for you.
If you find that the State has failed to prove anyone or more of these elements of the crime beyond a reasonable doubt, then you must find the defendant Not Guilty of obtaining a controlled dangerous substance by fraud. On the other hand, if you find that the State has proved all of the elements of the crime beyond a reasonable doubt, then you must find the defendant Guilty as charged.

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.
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.
DISTRIBUTION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-11)
Page 2 of 6
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
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.
DISTRIBUTION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-11)
Page 3 of 6
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
4 N.J.S.A. 2C:35-11a(3)(a) through (c). This language only should be charged when the third alternative is applicable.
DISTRIBUTION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-11)
Page 4 of 6
[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
DISTRIBUTION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-11)
Page 5 of 6
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
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.
DISTRIBUTION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-11)
Page 6 of 6
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.

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.
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.
POSSESSION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
WITH INTENT TO DISTRIBUTE
(N.J.S.A. 2C:35-11)
Page 2 of 6
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.
2 N.J.S.A. 2C:35-2
POSSESSION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
WITH INTENT TO DISTRIBUTE
(N.J.S.A. 2C:35-11)
Page 3 of 6
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.]
3 N.J.S.A. 2C:35-11a(3)(a) through (c). This language only should be charged when the third alternative is applicable.
POSSESSION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
WITH INTENT TO DISTRIBUTE
(N.J.S.A. 2C:35-11)
Page 4 of 6
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
POSSESSION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
WITH INTENT TO DISTRIBUTE
(N.J.S.A. 2C:35-11)
Page 5 of 6
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
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).
POSSESSION OF AN IMITATION
CONTROLLED DANGEROUS SUBSTANCE
WITH INTENT TO DISTRIBUTE
(N.J.S.A. 2C:35-11)
Page 6 of 6
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.

UNLAWFUL POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE

(N.J.S.A. 2C:35-10)
(To be used in cases in which the quantity of CDS is not an element of the offense)1
Count of the indictment charges the defendant as follows:
(Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35-10) on which this indictment is based reads as follows:
It is unlawful for any person knowingly or purposely, to obtain or to possess, actually or constructively, a controlled dangerous substance [or controlled dangerous substance analog].2
The various kinds of controlled dangerous substances are defined in another part of our statute. (Insert appropriate CDS, e.g., heroin, cocaine, etc.) is a controlled dangerous substance prohibited by statute.
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 (insert appropriate CDS).
[or in cases in which it is alleged that a controlled substance analog was possessed, charge as follows:]
2. S in evidence is a controlled substance analog.
3. That the defendant possessed or obtained S in evidence.
4. That the defendant acted knowingly or purposely in possessing or obtaining S in evidence.
1 With the exception of marijuana and hashish, possession of any amount of CDS is a crime. Therefore, it is not necessary for the jury to make a finding as to quantity. In cases involving marijuana and hashish, there is the additional element of quantity - 50 grams in respect to marijuana and 5 grams in respect to hashish. N.J.S.A. 2C:35-10a(3). Possession of lesser amounts o these drugs is a disorderly persons offense. N.J.S.A. 2C:35-10a(4). Thus, in a marijuana or hashish possession case, these additional elements must be charged, and when appropriate a charge on the lesser included disorderly persons offense must be given. The jury should be instructed that in the event they find the defendant guilty, they should determine whether the State has proven beyond a reasonable doubt the specified quantity was possessed.
2 To be charged when the indictment alleges possession of a controlled dangerous substance analog.
UNLAWFUL POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-10)
Page 2 of 3
[when it is alleged that a controlled substance analog has been possessed, 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, "obtain" means to acquire, to get, to procure. "Possess" means to [charge definition of possession].
In regard to the third element, the State must prove, as I have stated, that the defendant acted knowingly or purposefully in obtaining or possession 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 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.4
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 or (he/she) believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.5
Remember then when we speak of knowingly and purposely we are speaking of 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
3 N.J.S.A. 2C:35-2.
4 N.J.S.A. 2C:2-2b(1).
5 N.J.S.A. 2C:2-2b (2).
UNLAWFUL POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE
(N.J.S.A. 2C:35-10)
Page 3 of 3
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 three elements of this offense are that:
1. S in evidence is (insert appropriate CDS)
(or controlled dangerous substance analog).
2. The defendant possessed or obtained S in evidence.
3. The defendant acted knowingly or purposely in possessing or obtaining S in evidence.
If you find that the State has 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 all three elements beyond a reasonable doubt, then you must return a verdict of not guilty.6
Note: Because the mandatory community service provision contained in N.J.S.A. 2C:35-10a(4) prescribes a form of enhanced punishment, rather than defining a separate substantive offense, the official commentary to the Comprehensive Drug Reform Act (Laws 1987, Chapter 106), states that the determination of whether the person committed the offense while on school property or a school bus, or within 1,000 feet of school property, will be made by the court at the time of sentencing. See The Criminal Justice Quarterly, Vol. 9, No. 3, Fall 1987.
6 N.J.S.A. 2C:35-10 provides that if this offense is committed on, or within 1,000 feet of school property or a school bus, and if the defendant is not sentenced to a term of imprisonment, the defendant's sentence must include 100 hours of community service. It should be noted that this provision, unlike N.J.S.A. 2C:35-7, not create a separate offense, or an element of an offense to be determined by a jury. Rather, the provision simply creates an enhanced sentence. Therefore, the judge at sentencing is to make the determination of whether the offense was within a school zone. See the Official Commentary to the Comprehensive Drug Reform Act of 1986 (reprinted in 9 Criminal Justice Quarterly at p. 160 (Fall, 1987) which states:
"Because the mandatory community service provision of this section prescribes a form of enhanced punishment, rather than defining a separate substantive offense, it is intended that the determination of whether the person committed the offense while on school property or a school bus or within 1,000 feet of school property, will be made by the court at the time of sentencing."

STRICT LIABILITY FOR DRUG INDUCED DEATHS

(N.J.S.A. 2C:35-9)
(Count ________ of) the indictment charges the defendant as follows:
(Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35-9) on which this indictment is based reads as follows:
Any person who {manufactures} {distributes} or {dispenses} {methamphetamine}, {lysergic acid diethylamide}, {phencyclidine} or {any other controlled dangerous substance classified in Schedules I or II} or {any controlled substance analog thereof} is strictly liable for a death which results from the injection, inhalation, or ingestion of that substance and is guilty of a . . . crime.1
This 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. The elements are that:
1. The defendant {manufactured}, {distributed} or {dispensed} {methamphetamine}, {lysergic acid diethylamide}, {phencyclidine} or {any . . . controlled dangerous substance classified in Schedules I or II} or {any controlled substance analog thereof);2
2. The defendant acted knowingly or purposefully in {manufacturing}, {dispensing} or {distributing} the {insert appropriate substance};
3. {Insert name of alleged victim} injected, inhaled, or ingested the {insert appropriate substance} {manufactured}, {distributed} or {dispensed} by the defendant;
4. {Insert name of alleged victim} died as a result of injecting, inhaling, or ingesting the
1Based on the State’s allegations, the appropriate act or acts and substance or substances should be selected.
2Again, based on the State’s allegations, the appropriate act or acts and substance or substances should be selected.
STRICT LIABILITY FOR DRUG
INDUCED DEATHS
N.J.S.A. 2C:35-9
Page 2 of 8
{insert appropriate substance} {manufactured}, {distributed} or {dispensed} by the defendant. That is, the defendant’s act of (manufacturing) (distributing) or (dispensing) the (insert appropriate substance) caused (the name of alleged victim)’s death.
{When it is alleged that a Schedule I or II controlled dangerous substance, other than those specifically identified in the statute, i.e. methamphetamine, L.S.D., or phencyclidine was involved, the following should be charged}3
With respect to the first element, the State, as I have said, must prove beyond a reasonable doubt that the defendant {manufactured}, {distributed} or {dispensed} a Schedule I or II controlled dangerous substance. Here, the State alleges the defendant {manufactured}, {distributed} or {dispensed} {insert appropriate substance, e.g. heroin, cocaine, etc.). (Insert appropriate substance) is a Schedule I or II controlled dangerous substance.
{When it is alleged that a controlled substance analog was involved, the following definition of controlled substance analog should be charged}
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.4
3Most indictments containing a drug induced death count will also include a count for the predicate offense of manufacturing or distributing the drug. Therefore, the jury may well have been instructed beforehand on the elements of manufacturing or distributing a CDS. Under these circumstances, it will probably be sufficient to direct the jury’s attention to the previously given definition of these terms and to direct them to utilize that definition in deciding this count. See State v. Maldonado, 137 N.J. 536, 577 (1994) (trial court instructed jury: “You will rely upon the law that I have referred to before when I charged to you the law that applies to a distribution of cocaine”, but then went on to “remind” the jury of the definition of distribution.) For the sake of completeness and because the court may wish to reinforce the definition of these terms, this model charge incorporates the full definition of the elements of manufacturing and distributing CDS.
4N.J.S.A. 2C:35-2.
STRICT LIABILITY FOR DRUG
INDUCED DEATHS
N.J.S.A. 2C:35-9
Page 3 of 8
In this case, the indictment alleges that the defendant {manufactured}, {distributed} or {dispensed} ______________ which is an analog of ________________, which is a Schedule I or II controlled dangerous substance. Thus, to establish this part of the first element, the State must prove beyond a reasonable doubt that __________ has a substantially similar chemical structure to the dangerous substance _____________, and that ________________ was specifically designed to produce an effect substantially similar to the controlled dangerous substance _______________, which is a Schedule I or II controlled dangerous substance.
{If the indictment alleges the defendant manufactured the CDS, charge the following definition of manufacture}
“Manufacture” means the production, preparation, propagation, compounding, conversion or processing of {insert appropriate substance} either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or re-labeling of its container, except that this term does not include the preparation or compounding of a controlled dangerous substance ( or controlled substance analog) by an individual for (his/her) own use or the preparation, compounding, packaging, or labeling of a controlled dangerous substance: (1) by a practitioner as an incident to (his/her) administering or dispensing of a controlled dangerous substance or controlled substance analog in the course of (his/her) professional practice, or (2) by a practitioner (or under his/her supervision) for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale.5
5N.J.S.A. 2C:35-2.
STRICT LIABILITY FOR DRUG
INDUCED DEATHS
N.J.S.A. 2C:35-9
Page 4 of 8
In this regard, the term “practitioner” means a physician, dentist, veterinarian, scientific investigator, laboratory, pharmacy, hospital or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a controlled dangerous substance (or controlled substance analog) in the course of professional practice or research in this State.6
{If the indictment alleges that the defendant distributed the CDS charge the following definition of distribution.}7
With respect to the first element, to “distribute” means the transfer, actual, constructive or attempted, from one person to another of {insert appropriate substance}.8 It is not necessary that the drugs be transferred in exchange for payment or promise of payment of money or anything of value.9
In regard to the second element, the State must prove beyond a reasonable doubt that the defendant acted knowingly or purposefully in {manufacturing}, {distributing}, or {dispensing} the {insert appropriate substance}.
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
6Ibid.
7See footnote 3, supra.
8This definition is taken from the definitions of “distribute” and “deliver” set forth in N.J.S.A. 2C:35-2.
9State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff’d 107 N.J. 603 (1987).
STRICT LIABILITY FOR DRUG
INDUCED DEATHS
N.J.S.A. 2C:35-9
Page 5 of 8
certain that (his/her) conduct will cause such a result. “Knowing”, “with knowledge” or equivalent terms have the same meaning.10
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) believes or hopes that they exist. “With purpose,” “designed”, “with design” or equivalent terms have the same meaning.11
Remember that when we speak of knowingly and purposely we are speaking of 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.
In regard to the third element, the State must prove beyond a reasonable doubt, as I have said, that {insert name of alleged victim} injected, inhaled, or ingested the {insert appropriate substance} {manufactured}, {distributed}, or {dispensed} by the defendant.
The fourth element is that {insert name of alleged victim} died as a result of injecting, inhaling, or ingesting the {insert appropriate substance} {manufactured}, {distributed}, or {dispensed} by the defendant. To prove this element, the State must prove that the defendant’s act of {manufacturing}, {distributing}, or {dispensing} the {insert appropriate substance} caused {insert name of alleged victim}’s death. In order for the State to prove this element, the State
10N.J.S.A. 2C:2-2b(2).
11N.J.S.A. 2C:2-2b(1).
STRICT LIABILITY FOR DRUG
INDUCED DEATHS
N.J.S.A. 2C:35-9
Page 6 of 8
must prove, beyond a reasonable doubt, the following:
First, the State must prove that the injection, inhalation or ingestion of the {insert appropriate substance} is an antecedent, that is a preceding act, but for which the death would not have occurred; in other words, that the death would not have occurred without the injection, inhalation, or ingestion of the {insert appropriate substance}.
Second, the State must prove that the death was not too remote in its occurrence as to have a just bearing on defendant’s liability, and,
Third, the State must prove that the death was not too dependent upon conduct12 of another person which was unrelated to the {injection}, {inhalation}, {ingestion} of the {insert appropriate substance} or to its effect as to have a just bearing on the defendant’s liability.
In determining whether the death was not too remote or not too dependent upon the conduct of another person, you should consider, among all other factors suggested by the evidence13, whether causes other than the {injection}, {ingestion}, {inhalation} of the {insert appropriate substance} contributed to the death, and if so, then the number and nature of such cause or causes.14 You should also consider how drug-induced deaths normally occur in comparison with how this death actually occurred,15, or, in other words, whether the State has proven beyond a reasonable doubt that the death did not occur in such an unusual manner that it would be unjust to find the defendant responsible for the death.16 You should also consider, if
12In Cannel, Criminal Code Annotated, at p. 681 (1996-1997 ed), N.J.S.A. 2C:35-9b2(b) is erroneously reproduced to read “too dependent upon control of another.” (emphasis added). The correct term is conduct not control. See West, New Jersey Statutes Annotated, 2C:35-9b2(b) (1995), see also State v. Maldonado, supra, 137 N.J. at 544 and the 1987 legislative commentary to N.J.S.A. 2C:35-9, which is reprinted in Cannel, supra, at 683.
13State v. Maldonado, supra, at 570.
14Id. at 565.
15Id. at 570.
16Id. at 566.
STRICT LIABILITY FOR DRUG
INDUCED DEATHS
N.J.S.A. 2C:35-9
Page 7 of 8
you find them relevant, the length of time between defendant’s act of {manufacturing}, {distributing}, {dispensing} the {insert appropriate substance} and the place of {insert name of decedent}’s death.
The fact that {insert alleged victim’s name} contributed to (his/her) own death by (his/her) purposeful, knowing, reckless, or negligent injection, inhalation, or ingestion of the {appropriate substance}, or by (his/her) consenting to the administration of {insert appropriate substance} by another is not a defense to prosecution for this offense.17 Thus, {insert name of alleged victim}’s conduct of injecting, inhaling, or ingesting the {insert appropriate substance} or consenting to its administration by another does not make the death too remote or too dependent upon the conduct of another to have a just bearing on defendant’s liability.18
{At this point in the charge the Court should explain the relationship of the remoteness issue to the facts of the case, if it has not already done so. If the State’s and defendant’s versions of the facts differ, the charge should include appropriate instructions with respect to each party’s position}.19
In summary, in order for the State to prove the defendant’s guilt under this (count of the) indictment, the State must prove four elements:
1. That the defendant {manufactured}, {distributed}, or {dispensed} {insert appropriate substance};
17N.J.S.A. 2C:35-9c
18See Cannel, Criminal Code Annotated, at pp. 682-684 (1996-1997 ed); note, however, that State v. Maldonado, supra, indicates in dictum that coerced or unknowing consumption of drugs may be exculpatory. 137 N.J. at 572, n.5.
19State v. Maldonado, supra, 137 N.J. at 576.
STRICT LIABILITY FOR DRUG
INDUCED DEATHS
N.J.S.A. 2C:35-9
Page 8 of 8
2. That the defendant did so knowingly or purposefully;
3. That {insert name of alleged victim} injected, inhaled, or ingested the {insert appropriate substance}, and
4. That {insert name of alleged victim} died as a result of injecting, inhaling, or ingesting the {insert appropriate substance} {manufactured}, {distributed}, or {dispensed} by the defendant. In other words, that the defendant’s act of {manufacturing}, {distributing}, or {dispensing} the {insert appropriate substance} caused the victim’s death; that is, but for {insert name of alleged victim}’s injection, inhalation, or ingestion of the {insert appropriate substance}, (he/she) would not have died, and the death was not too remote in its occurrence or too dependent upon the conduct of another person which was unrelated to the injection, inhalation or ingestion of the {insert appropriate substance} or its effect as to have a just bearing on the defendant’s liability.
If you find that the State has proven all of these elements beyond a reasonable doubt then you must find the defendant guilty. On the other hand, if you find the State has failed to prove beyond a reasonable doubt any of these elements, then you must find the defendant not guilty.

POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE IN PROXIMITY TO PUBLIC HOUSING FACILITIES, PARKS OR BUILDINGS

(N.J.S.A. 2C:35-7.1)
Count _______ of the indictment charges the defendant with possession of a controlled dangerous substance with intent to distribute in proximity to Public Housing Facilities, Parks or Buildings.
(Read Indictment)
The pertinent part of the statute upon which this count of the indictment is based reads as follows:
Any person who violates [another section of our law] by possessing with intent to distribute a controlled dangerous substance [or controlled substance analog] while in, on or within 500 feet of the real property comprising a Public Housing Facility, Public Park, or a Public Building is guilty of a crime.
As I have already explained, (Insert appropriate CDS, e.g. heroin, cocaine, etc.) is a dangerous substance prohibited by the statute.2
In order for you to find the defendant guilty of this count of the indictment, the State must first prove beyond a reasonable doubt that the defendant knowingly or purposely possessed with intent to distribute a controlled dangerous substance (or controlled substance analog). As I have previously instructed you, the elements of possession with intent to distribute a controlled dangerous substance are:3
(1) S______ in evidence is (insert appropriate CDS or controlled substance analog)
(2) The defendant possessed or had S______ under (his/her) control
(3) The defendant had the purpose to distribute S______ when (he/she) possessed it or had it under (his/her) control.
1This instruction is meant to be given as a supplement to the instructions on unlawful possession of CDS and possession of CDS with intent to distribute. In cases where those charges are not present, definitions of key terms must be incorporated here.
2When a controlled dangerous substance analog is involved, refer to the definition found in N.J.S.A. 2C:35-2.
3 If applicable, lack of legal authorization pursuant to N.J.S.A. 24:21-1 should be charged as an additional element.
POSSESSION OF A CONTROLLED DANGEROUS
SUBSTANCE WITH INTENT TO DISTRIBUTE IN
PROXIMITY TO PUBLIC HOUSING FACILITIES,
PARKS OR BUILDINGS
(N.J.S.A. 2C:35-7.1)
PAGE 2 OF 4
In addition to proving the elements of possession with intent to distribute a controlled dangerous substance, to establish the defendant’s guilt on this count, the State must also prove beyond a reasonable doubt that when the defendant possessed a controlled dangerous substance with intent to distribute, (he/she) was:
[CHARGE AND DEFINE APPLICABLE TERM]
in (or within 500 feet of) any Public Housing Facility
OR
in (or within 500 feet of) any Public Park
OR
in (or within 500 feet of) any Public Building
“Public Housing Facility” means any dwelling, complex of dwellings, accommodation, building, structure or facility and real property of any nature appurtenant thereto and used in connection therewith, which is owned by or leased to a local housing authority in accordance with the “Local Redevelopment and Housing Law,” [P.L. 1992, c.79 (C.40A:12A-1 et seq)] for the purpose of providing living accommodations to persons of low income.
“Public park” means a park, recreation facility or area or playground owned or controlled by a State, county or local government unit.
“Public Building” means any publicly owned or leased library or museum.
The possibility that defendant may have been unaware that the prohibited conduct took place in or within 500 feet of a Public Housing Facility, Public Park or Public Building is not a defense to this crime and shall not be considered by you in your deliberations. I further instruct you that whether defendant intended to make the distribution within 500 feet of the public property is irrelevant. To prove this element, the State must prove beyond a reasonable doubt that when the defendant possessed a controlled dangerous substance with intent to distribute, (he/she) was in or within 500 feet of a Public Housing Facility, Public Park or Public Building.
To reiterate, in order for you to find the defendant guilty of this count of the indictment, the State must prove all of the following elements beyond a reasonable doubt:
(1) S_______ in evidence is (insert appropriate CDS or controlled substance analog)
(2) The defendant possessed or had S_______. under (his/her) control
POSSESSION OF A CONTROLLED DANGEROUS
SUBSTANCE WITH INTENT TO DISTRIBUTE IN
PROXIMITY TO PUBLIC HOUSING FACILITIES,
PARKS OR BUILDINGS
(N.J.S.A. 2C:35-7.1)
PAGE 3 OF 4
(3) The defendant had the purpose to distribute S_______ when (he/she) possessed it or had it under (his/her) control.
(4.) That when the defendant possessed S with the purpose to distribute it, (he/she) was in or within 500 feet of a [charge as appropriate: Public Housing Facility, Public Park or Public Building].
If you find that the State has proven all of 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.
[SUBSTITUTE WHERE APPROPRIATE]
The Defendant, as part of (his/her) general denial of guilt, asserts the defense that (he/she) did not possess with intent to distribute [insert appropriate CDS] for profit and that (he/she) did not possess with intent to distribute [insert appropriate CDS] to a person 17 years or younger. In order for this defense to be available, the defendant must prove by a preponderance of the evidence, that is, it is more likely true than not, that:
(1) The offense did not involve distribution of a controlled dangerous substance for profit
AND
(2) The offense did not involve distribution to a person 17 years of age or younger
This defense applies only to this charge and shall not affect your verdict concerning any other count of the indictment.
If you find that the State has proven all the elements of this crime beyond a reasonable doubt, and also find that the defendant has failed to prove all of the elements of this defense by a preponderance of the evidence, then you must return a verdict of guilty. On the other hand, if you find that the State has failed to prove any of the elements of the crime beyond a reasonable doubt, or that defendant has proved all of the elements of the defense by a preponderance of the evidence, then you must return a verdict of not guilty.
POSSESSION OF A CONTROLLED DANGEROUS
SUBSTANCE WITH INTENT TO DISTRIBUTE IN
PROXIMITY TO PUBLIC HOUSING FACILITIES,
PARKS OR BUILDINGS
(N.J.S.A. 2C:35-7.1)
PAGE 4 OF 4
(TO BE UTILIZED IN CASES IN WHICH THE QUANTITYOF MARIJUANA IS AN ELEMENT OF THE OFFENSE)
If you have found the defendant guilty of possession of marijuana with intent to distribute in or within 500 feet of a Public Housing Facility, Public Park or Public Building, you then must determine whether the State has proven beyond a reasonable doubt that the quantity of marijuana involved was:
One (1) ounce or more of marijuana including any adulterants and dilutants. (Yes or No)
After determining if the State has proven this quantity beyond a reasonable doubt, you should mark the appropriate section of the verdict sheet which will be supplied to you.