New Jersey Possession of CDS: Intent And Distribution

In New Jersey, Possession of a Controlled Dangerous Substance (CDS), defined under 2C:35-2, is usually an indictable offense, except for possession of marijuana which is a disorderly persons offense if it is under 50 grams.  Possession of all other drugs; cocaine, heroin, ecstasy and molly, PCP, LSD, methamphetamines, most prescription drugs for which there is no prescription, is an indictable offense, even in the smallest of quantities. Even residue of cocaine, for example, left on the inside of a plastic bag will qualify as possession of the drug as long as there is a sufficient quantity for swabbing and testing.  Possession of the substances listed above and any other substance scheduled as I, II, III, and IV, under 2C:35-10, are 3rd degree indictable offenses, which carry a statutory maximum penalty of 5 years in state prison, and a fine of up to $35,000. Possession of a schedule V substances (usually pharmaceuticals in very low concentrations that have little possibility for abuse) is graded as a 4th degree offense, which has a statutory maximum penalty of 18 months in state prison, and a fine of up to $15,000.

As a veteran New Jersey criminal defense lawyer who has represented clients on drug charges all over the state, I can attest to the fact that while PLENTY of people are charged with possession offenses, there are many others that are also charged with the more serious offenses of Possession With Intent to Distribute, or Distribution, under 2C:35-5. These offenses are frequently more serious than simple possession. The scary part, is that it is easier to get charged with distribution or possession with intent than you may realize.  If a person has acquired drugs to share with friends later, even if they aren’t selling them, that person possess those drugs with intent to distribute them.  Distribute does not mean sell, it means transfer physical possession.  If a person hands drugs to a friend to share, they have just committed the crime of distribution. Certain facts can get a person charged with possession with intent even if the quantity of drugs possessed is relatively small.  For example, if  person is in possession of a baggie that contains an 1/8 of an ounce of cocaine, referred to as an eight-ball, they would get charged with possession of CDS.  Usually this quantity would be considered for personal use. However, if that person had the same 1/8 ounce, but it was individually packaged in many smaller zip-lock bags, they would likely get charged with possess with intent.  While there are many additional facts that would shape the way a person was charged under those circumstances, walking around with multiple $20 dollar zips leaves a defendant open to the accusation that the CDS is packaged for sale.  Obviously in addition to packaged CDS, the simultaneous possession of large quantities of cash, digital scales, owe sheets, cutting agents, a large quantity of empty brand new zip-lock bags, as well as information from confidential informants, and observations made during surveillance all strengthen a prosecution for either distribution or possession with intent to distribute.

The grading of an offense, or the seriousness of a distribution charge, is most often governed by the quantity of CDS in question.  For example, 2C:35-5b(1) states that distribution or possession with intent to distribute heroin or cocaine in a quantity of 5 ounces or more is a 1st degree offense (20 year statutory maximum incarceration), 1/2 ounce to less than 5 ounces is a 2nd degree offense (10 year statutory maximum incarceration), and any quantity less than 1/2 an ounce is 3rd degree offense (5 year statutory maximum incarceration).  The grading of certain other substances are similarly structured based on weight, while pills are based on numeric quantity. Interstingly, when a quantity of substance is seized, tested, and weighed by the state police labs, they are not required to separate out any inert cutting agents to determine the weight of the drug for purposes of grading the offense.  That means someone who acquires, say 2 and a half ounces of cocaine, and then adds 2 and half ounces of cutting agent to increase volume (and thus profit) just walked themselves from a 2nd degree charge, into a 1st degree charge if they get caught.  Statutorily, that person now possesses 5 ounces of cocaine, even though half of it isn’t cocaine at all.  Likewise, possessing 2nd or 1st degree weight, even if it is for personal use, will likely get a person charged with possession with intent.  The prosecutor would make the argument that you possess a very large quantity that is more typical for sale than personal use.  Of course, this is rebuttable, but unless you are Charlie Sheen whose wealth and voracious appetite for substances well precede him, a prosecutor would have to be provided with very convincing evidence indicative of personal consumption.

There are many circumstances which implicate statutory sentencing enhancements for distribution charges, which can result in both upward departures of the sentencing guidelines, as well as mandatory periods of parole ineligibility.  For example, such activities as selling drugs in a school zone, or being the kingpin in a drug distribution organization, will result in harsher and lengthier sentences upon conviction. However, that topic is too lengthy to discuss herein, and must be left for discussion in future posts.  Follow my blog to learn more.