Like other states, it’s a crime to illegally manufacture, distribute, or dispense a controlled substance or its analog in New Jersey N.J.S.A. 2C: 35-5(a)(1). Similar to Pennsylvania the severity of the criminal penalty is dependent upon the substance and the quantity of that substance. The burden of proof that the prosecution must meet is guilt beyond a reasonable doubt and it requires the prosecution to meet all of the following three (3) elements:
- The item is a controlled substance or its analog;
- The defendant either manufactured, dispensed, or distributed it;
- The defendant acted knowingly or purposely
Manufacturing is defined very broadly in New Jersey and it’s the preparation, compounding, conversion or processing of a controlled substance (narcotic or drug) either directly or indirectly. This definition includes packaging or repacking of the substance as well as the cultivation of marijuana, “re-rocking” cocaine, as well as diluting or using cutting agents for drugs such as heroine, N.J.S.A. 2C: 35-2.
Dispensing or distributing is defined in the Garden State as the delivery of a controlled substance or its analog to its ultimate user and it includes the sharing of a substance with a friend at a party or club for example. The prosecution, however, must prove that the defendant acted purposely or knowingly and this means that the “conscious object of the defendant” was to manufacture, distribute, or dispense the drug.
Before establishing the intent to distribute, however, the prosecution must prove either actual or constructive possession. I have written previous articles on this concept. Constructive possession is where the defendant doesn’t have manual possession but is nevertheless aware of the substance and has the ability or capacity to exercise control over it. Actual possession is where the defendant has manual or physical possession of the drug. A good example of a lack of constructive possession is where a front seat passenger is within a car but the drugs are in the handbag of the rear seat passenger.
Like Pennsylvania, New Jersey doesn’t treat all narcotics the same way. Controlled substances are classified according to five schedules and New Jersey uses these schedules during the sentencing phase of drug crimes. Despite these schedules, however, heroin and cocaine are treated differently in the Garden State. A person who illegally manufactures, distributes, or dispenses five (5) or more ounces of either of these drugs commits a crime of the first degree and faces a mandatory minimum period of parole ineligibility. There is also a fine of up to $500,000.00. It’s a crime of the second degree if the quantity of either of cocaine or heroin is less than 5 ounces but greater than or equal to a half an ounce. It’s a crime of the third degree if it is less than a half ounce of either of these substances, N.J.S.A. 2C: 35-5(b)(1).
Heroin and cocaine are Schedule I controlled substances because there is no accepted medical use for them but New Jersey treats all other Schedule I and II drugs less seriously. The illegal distribution or dispensing of all other Schedule I or II drugs where the quantity is an ounce or more is a crime of the second degree while less than an ounce is a crime of the third degree, N.J.S.A. 2C: 35-5(b)(9).
New Jersey, however, treats Lysergic Acid (LSD) and methamphetamine differently. With regards to LSD, it’s a first degree crime to dispense or manufacture 100 mg or more of this drug and a second degree crime if it’s less than 100 mg. With regards to Methamphetamine (meth) and PCP, it’s a first degree crime if the quantity is 5 ounces or more and a second degree crime if it’s less than 5 ounces but greater than or equal to one half ounce.
Finally, with regards to Marijuana, a person commits a first degree crime if the quantity is 25 pounds or more or if the person cultivates 50 or more plants regardless of the weight. It’s a second degree crime if the quantity is 5 pounds or more but less than 25 pounds and 10 or more plants but less than 50, again, regardless of the weight. It’s a third degree crime if it’s less than 5 pounds but greater than or equal to an ounce of Marijuana. It’s a fourth degree crime if it’s less than an ounce, N.J.S.A. 2C; 35-5(b)(10)(a).
If a drug crime is classified as a first degree offense, it carries with it a mandatory minimum sentence (cocaine, heroin, LSD, Meth, PCP). This mandatory sentence is one ½ – 1/3 of the sentence imposed and the maximum penalty for a crime of the first degree in New Jersey is 10-20 years. The maximum for a second degree crime is 5-10 years and 3-5 years for a third degree crime. There is a presumption of incarceration for all first and second degree crimes in the Garden State. For more information on crimes in New Jersey I encourage you to subscribe to our monthly newsletter and to continue to read my blog.