Possession with Intent to Distribute CDS in New Jersey

N.J.S.A. 2C:35-5 · Drug Offenses

What the law says

Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), a person may not knowingly or purposely manufacture, distribute, or dispense a controlled dangerous substance or controlled substance analog, or possess or control one with intent to manufacture, distribute, or dispense it. The section also prohibits creating, distributing, or possessing or controlling a counterfeit controlled dangerous substance with intent to distribute it.

This is an indictable crime. It's prosecuted in the Superior Court, Criminal Part, in the county where it allegedly happened, usually after grand jury review. First-time defendants may be eligible for Pretrial Intervention (PTI).

What the State must prove

To convict, the prosecutor must prove each element beyond a reasonable doubt. Under N.J.S.A. 2C:35-5, that means:

• The person acted knowingly or purposely.
• The person manufactured, distributed, or dispensed a controlled dangerous substance or controlled substance analog, or possessed or had one under the person’s control with intent to manufacture, distribute, or dispense it.
• Alternatively, the person created or distributed a counterfeit controlled dangerous substance, or possessed or had one under the person’s control with intent to distribute it.
• For an offense whose degree depends on the substance or its quantity, the substance and quantity involved must correspond to the applicable category in subsection b.
• The conduct was not authorized by P.L.1970, c.226 (C.24:21-1 et seq.).

How the charge is graded

• Heroin, or its analog; 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, excluding decocainized coca leaves or extractions which do not contain cocaine or ecogine; or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants: crime of the first degree.
• A substance referred to in paragraph (1), in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants: crime of the second degree.
• A substance referred to in paragraph (1), in a quantity less than one-half ounce including any adulterants or dilutants: crime of the third degree.
• 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: crime of the second degree.
• 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: crime of the third degree.
• 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: crime of the first degree.
• 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: crime of the second degree.
• Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces or more including any adulterants or dilutants: crime of the first degree.
• 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: crime of the second degree.
• Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of less than one-half ounce including any adulterants or dilutants: crime of the third degree.
• 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: crime of the first degree.
• 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: crime of the second degree.
• Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), 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: crime of the third degree.
• On and after the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), marijuana in a quantity of more than one ounce but less than five pounds including any adulterants or dilutants, or hashish in a quantity of more than five grams but less than one pound including any adulterants or dilutants: crime of the third degree.
• Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), 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: crime of the fourth degree.
• On and after the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), marijuana in a quantity of one ounce or less including any adulterants or dilutants, or hashish in a quantity of five grams or less including any adulterants or dilutants: for a first offense, subject to a written warning; for a second or subsequent offense, crime of the fourth degree.
• Any other controlled dangerous substance classified in Schedule I, II, III or IV, or its analog: crime of the third degree.
• Any Schedule V substance, or its analog: crime of the fourth degree.

Penalties in the statute

• For the first-degree offense under subsection b.(1), except as provided in N.J.S.2C:35-12, the defendant shall be sentenced to a term of imprisonment. The term shall include a minimum term fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. A fine of up to $500,000 may be imposed.
• For the first-degree offense under subsection b.(6), except as provided in N.J.S.2C:35-12, the court shall impose a term of imprisonment, including 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. A fine of up to $500,000 may be imposed.
• For the third-degree offense under subsection b.(3), a fine of up to $75,000 may be imposed.
• For the third-degree offense under subsection b.(5), a fine of up to $75,000 may be imposed.
• For the first-degree offense under subsection b.(8), a fine of up to $300,000 may be imposed.
• For the third-degree offense under subsection b.(9)(b), a fine of up to $75,000 may be imposed.
• For the first-degree offense under subsection b.(10)(a), a fine of up to $300,000 may be imposed.
• For the third-degree offenses under subsection b.(11)(a) and (b), a fine of up to $25,000 may be imposed.
• For the third-degree offense under subsection b.(13), a fine of up to $25,000 may be imposed.
• For the fourth-degree offense under subsection b.(14), a fine of up to $25,000 may be imposed.
• For a first offense under subsection b.(12)(b), the person is subject to a written warning, which also indicates that any subsequent violation is a crime punishable by a term of imprisonment, a fine, or both.

General sentencing ranges

Unless a statute sets a different penalty, New Jersey's general sentencing laws (N.J.S.A. 2C:43-6, 2C:43-8, and 2C:43-3) set these maximums:

Other rules that can matter

• The statute applies except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
• For a first violation of subsection b.(12)(b), which is subject to a written warning, the degree of the offense is not determined by the trier of fact under subsection c.
• Where the degree of the offense depends on quantity, the quantity involved shall be determined by the trier of fact.
• Where the indictment or accusation so provides, quantities 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 each individual act was committed within the applicable statute of limitations.
• The odor of marijuana or hashish, or burnt marijuana or hashish, shall not constitute reasonable articulable suspicion to initiate a search of a person to determine a violation of subsection b.(12)(b). A person who violates that provision shall not be subject to arrest, detention, or otherwise be taken into custody unless the person is also being arrested, detained, or otherwise taken into custody for another violation of law for which that action is legally permitted or required.
• A person shall not be deprived of any legal or civil right, privilege, benefit, or opportunity provided pursuant to any law solely by reason of committing a violation of subsection b.(12)(b), nor shall one or more violations modify any such right, privilege, benefit, or opportunity. The listed matters include the granting, renewal, forfeiture, or denial of a license, permit, or certification; qualification for and receipt, alteration, continuation, or denial of financial assistance, housing assistance, or other social services; rights of or custody by a biological parent, adoptive or foster parent, or other legal guardian of a child or newborn infant, or pregnant woman, in an action or proceeding by the Division of Child Protection and Permanency in the Department of Children and Families; and qualification, approval, or disapproval to serve as a foster parent or other legal guardian.
• Local and county law enforcement authorities shall submit quarterly reports to the Uniform Crime Reporting Unit within the Division of State Police in the Department of Law and Public Safety, or to another designated recipient determined by the Attorney General. The reports shall contain the number of subsection b.(12)(b) violations in their jurisdictions, the race, ethnicity, gender, and age of each person committing a violation, and the disposition of each person's violation.
• The violations and associated information, together with a quarterly summary of violations investigated and associated information collected by the Division of State Police for the same period, shall be summarized by county and municipality in an annual report. Quarterly summaries and annual reports shall be made available at no cost to the public on the Division of State Police's Internet website.

Common defense strategies

Every case turns on its facts, but defenses we often explore include:

• Motions to suppress evidence from unlawful stops, searches, or warrants
• Challenging possession, especially constructive possession in shared cars or homes
• Lab testing, chain of custody, and weight calculations
• Diversion such as conditional discharge (N.J.S.A. 2C:36A-1) or PTI where eligible

What to do right now

1. Don't discuss the facts with police, the alleged victim, or anyone on a jail phone or social media.
2. Write down everything you remember, including names, times, and locations.
3. Keep every document you received, such as the complaint, summons, and release conditions.
4. Follow all release and no-contact conditions exactly.
5. Call a New Jersey criminal defense lawyer before your first court date.

How we help

Edward G. Appel has defended New Jersey clients since 1988 in municipal and Superior Courts in all 21 counties. We review the discovery, look for weaknesses in the State's case, file motions where they're warranted, and push for dismissals, downgrades, or diversion before you face a trial. Call 856-856-2373 for a free, confidential consultation about your Possession with Intent to Distribute CDS charge.

Related charges

• Strict Liability for Drug-Induced Death →
• Loitering to Obtain or Distribute CDS →
• Possession of CDS →
• Drug Distribution in a School Zone →
• Leader of a Narcotics Trafficking Network →
• Maintaining or Operating a CDS Production Facility →
• Obtaining CDS by Fraud →
• Drug Paraphernalia →

Disclaimer: This page is general information about New Jersey law, not legal advice, and doesn't create an attorney-client relationship. Prior results don't guarantee a similar outcome.