NJ 2C:35-5. Manufacturing, distributing or dispensing.

Defending NJ 2C:35-5.  Manufacturing, distributing or dispensing.

After you read the following NJ criminal statute (manufacturing, distributing or dispensing CDS) you may decide that you need the help of a lawyer, or need a legal interpretation of how this statute applies to your case.  The firm of Villani & DeLuca has experienced criminal lawyers with over 20 years of experience, including a former municipal prosecutor.  Call the number above for a free 24×7 phone consultation.

Summary of Drug Distribution Charges

In New Jersey, it is a crime under this statute to distribute a controlled dangerous substance (CDS) or to have a CDS in your possession with the intent to distribute it.  The distribution of drugs includes the transfer, actual or constructive, from one person to another.  There is no requirement that money be exchanged for the distribution of the drugs to obtain a conviction for drug distribution or attempted drug distribution.

Elements that Must be Proven for Distribution of Drugs

In order to prove that someone is guilty of drug distribution, the State must prove that the item being distributed was an illegal controlled dangerous substance, that the defendant actually distributed or was in possession with the intent to distribute the CDS, and that he or she did so knowingly or purposefully.

A person acts “knowingly” if he or she is aware that his or her conduct is of that nature, that such circumstances exist, or he or she is aware of a high probability of their existence.  A persons acts “purposely” if it is his or her conscious objective to engage in conduct of that nature or to cause such a result.  In proving the defendant’s mental state, the prosecutor will look to his or her conduct, words, and the surrounding circumstances.

The crime of possession of CDS with the intent to the distribute is proven by establishing similar elements as for distribution.  The difference is that here the defendant has not actually attempted or distributed drugs to another, but instead it must be shown that he or she was in possession of CDS, or had it under his or her control, while having the intent to distribute the drugs.

The state of mind required here is intent, which means a purpose to do something.  Again, it is proven by the prosecutor using the defendant’s acts, conduct and the surrounding circumstances.  One common factor that will be considered in determining one’s intent to distribute drugs is the quantity and packaging of the CDS at the time of the arrest.

Punishment for Distribution or Possession with Intent to Distribute

The penalties for drug distribution or possession of drugs with the intent to distribute vary depending on the type and amount of drug involved, as outlined in section (b) of the above statute.  This crime ranges in degree from first to fourth degree, and some offenses involve mandatory prison time.

A first degree crime comes with the penalty of up to $200,000 in fines and between ten and twenty years in prison.  A conviction for a second degree crime can result in up to $150,000 in fines and the possibility of five to ten years in prison.  If you are found guilty of a third degree crime in New Jersey, you could face up to a $15,000 fine and three to five years in prison.  Lastly, if you are convicted of a fourth degree criminal offense, it could come with a fine as high as $10,000 and up to 18 months in jail.

NJ Statute: 2C:35-5.  Manufacturing, distributing or dispensing.

a.  Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be unlawful for any person knowingly or purposely:

(1)  To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or

(2)  To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.

b.Any person who violates subsection a. with respect to:

(1)  Heroin, or its analog, or coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, or analogs, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine,  or or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree.  The defendant shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment by the court.  The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole.  Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

(2)  A substance referred to in paragraph (1) of this subsection, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants is guilty of a crime of the second degree;

(3)  A substance referred to paragraph (1) of this subsection in a quantity less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(4)  A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of one ounce or more including any adulterants or dilutants is guilty of a crime of the second degree;

(5)  A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of less than one ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(6)  Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more including any adulterants or dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more including any adulterants or dilutants, is guilty of a crime of the first degree. Except as provided in N.J.S.2C:35-12, the court shall impose a term of imprisonment which shall include the imposition of a minimum term, fixed at, or between, one-third and one-half of the sentence imposed by the court, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

(7)  Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine, or its analog, in a quantity of less than 10 grams including any adulterants or dilutants, or where the amount is undetermined, is guilty of a crime of the second degree;

(8)  Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

(9)  (a)  Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of one-half ounce or more but less than five ounces including any adulterants or dilutants is guilty of a crime of the second degree;

(b)  Methamphetamine, or its analog, or phenyl-2-propanone  (P2P), in a quantity of less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that notwithstanding the provisions of subsection b. of  N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(10)  (a)  Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more marijuana plants, regardless of weight, or hashish in a quantity of five pounds or more including any adulterants or dilutants, is guilty of a crime of the first degree.  Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

(b)  Marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants or dilutants, or 10 or more but fewer than 50 marijuana plants, regardless of weight, or hashish in a quantity of one pound or more but less than five pounds, including any adulterants and dilutants, is guilty of a crime of the second degree;

(11)  Marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of  N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;

(12)  Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants, is guilty of a crime of the fourth degree;

(13)  Any other controlled dangerous substance classified in Schedule I, II, III or IV, or its analog, is guilty of a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or

(14)  Any Schedule V substance, or its analog, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed.

c.Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact.  Where the indictment or accusation so provides, the quantity involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing or possession with intent to distribute was committed within the applicable statute of limitations.

L.1987, c.106, s.1;  amended 1988, c.44, s.2; 1997, c.181, s.3; 1997, c.186, s.3; 2000, c.55; 2000, c.136.

AKA: NJ Criminal Charge 2C:35-5, Violation 2C:35-5, Offense 2C:35-5

Disclaimer: A copy of this statute has been provided for your information. This wording was current from the NJ website lis.njleg.state.nj.us as of August 2012.

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