trial court should have granted defendant’s motion for
judgment of acquittal on the charge of possession with
intent to distribute CDS within 1,000 feet of a school
given the unrebutted testimony of a defense witness that
the school in question had been shut down. Thus, a
reasonable jury could not conclude beyond a reasonable
doubt that the property was being used for school
purposes on the date in question. The prosecutor had
chosen to rely upon the submission of the map and
ordinance pursuant to N.J.S.A. 2C:35-7 and did not
introduce any other evidence on the use of the building
for school purposes.
Then in State v. Thomas, 132 N.J. 247 (1993), the
Supreme Court again held that the admission of a drug-
free school zone map, coupled with the existence of the
school and the police officer’s testimony that the
possessory offense occurred within 1,000 feet of a school,
was sufficient for the jury to draw the inference that the
school was used for school purposes. The Court rejected
the notion of the dissenting judge in the Appellate
Division that the State was required to present direct
evidence that the school was used for school purposes and
not merely owned by the educational authorities. The
Court also discussed the statutory presumption that the
map, if properly authenticated and supported by an
ordinance of the municipality or county approving the
map as an official record and location of the boundaries
of the 1,000 foot school zone, was prima facie evidence
that the school was used for school purposes. The Court
noted that such a “presumption” was merely a permissive
inference and that a jury should be charged accordingly.
The Court also pointed out that a prosecutor need not
rely on the statutory presumption but may use any other
evidence to establish that the school was used for school
purposes.
In State v. Haskins, 131 N.J. 643 (1993), use of a steel
tape measure by police to calculate the distance between
a drug transaction and school property was proper.
2. Imitation controlled dangerous substance
In State in the Interest of M.G., 307 N.J. Super. 348
(App. Div.), certif. denied, 154 N.J. 607 (1998), the
Appellate Division affirmed a juvenile’s adjudication of
delinquency on charges of possessing an imitation
controlled dangerous substance. Possession of saran-
wrapped sheets of blotter paper perforated into 100
separate sections, each with a “smiley face,” which is a
conventional LSD medium but which was devoid of the
drug, constitutes possession of such a substance. The
imitation drug statute, N.J.S.A. 2C:35-11, by its plain
language and in view of the context of the odorless,
colorless drug involved, makes that paper an imitation
controlled dangerous substance, because it was packaged
in a manner normally used for unlawfully transferring
LSD and would lead a reasonable person to believe that
it contained that substance.3. Quantity........................................................................................................................................
Neal v. United States, 116 S.Ct. 763 (1996), held that
a sentencing court is required to take into account the
actual weight of blotter paper laced with LSD in
determining whether to impose the mandatory
minimum sentence.
State v. Moore, 304 N.J. Super. 135 (App. Div. 1997);
State v. Torres, 236 N.J. Super. 6 (App. Div. 1989), certif.
denied, 122 N.J. 153 (1990); State v. Edwards, 257 N.J.
Super. 1 (App. Div. 1992). These cases held that in
prosecutions under N.J.S.A. 2C:35-5 and N.J.S.A.2C:35-
10, in addition to proving that defendant knew he
possessed the CDS at issue, the State must prove facts
which, although not elements, establish how much
defendant possessed in order to satisfy the grading of the
offense or the sentence imposed, and the jury has to so
find beyond a reasonable doubt, but it need not establish
that the defendant knew of the quantity or quality. The
particular substance possessed is relevant only for grading
and is not part of the description of the prohibited
conduct in the definition of the offense.So long as the amount of the controlled dangerous
substance can be identified by laboratory analysis,
possession of even a trace amount of narcotics is sufficient
to sustain a conviction for possession, and therefore is not
subject to dismissal as a de minimis infraction. State v.
Wells, 336 N.J. Super., 139 (Law Div. 2000).In State v. Gosa, 263 N.J. Super. 527 (App. Div.),
certif. denied, 134 N.J. 477 (1993), defendant was
charged with possession, possession with intent to
distribute, and possession with intent to distribute in a
school zone based on 180 vials of cocaine found in a
locked toolbox in his home. At trial, the expert testified
that she had tested only fifteen of the 180 vials, and that
she calculated the total weight of cocaine in all the vials
to be 43.58 grams. Defendant moved for a judgment of
acquittal on the basis that the State failed to present
testimony from which a reasonable jury could conclude
that the remaining vials contained CDS. The trial court
rejected this claim and the Appellate Division affirmed.
It found that since defendant had 180 vials of a white
powdery substance in a locked toolbox in his bedroom,
fifteen of which were randomly selected and tested