DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: THE WEIGHT OF THE CDS IS MATERIAL ELEMENTOF A DISTRIBUTION RELATED CRIME

The drug statute in New Jersey makes distribution of marijuana a fourth degree offense if the weight of the drug is less than 1 ounce. The crime becomes a third degree offense if the weight of the marijuana is 1 ounce but less than 5 pounds.

In a recent case decided by the Appellate Division, a defendant was arrested at his apartment where several bags of marijuana was seized. One government report defined the weight of the pot at 155 grams. Another report identified the weight at 95.58 grams.

At trial, the court failed to provide an instruction that would require the jury to determine the weight of the marijuana. The defendant's attorney failed to object to this omission. The defendant was ultimately convicted of possession with the intent to distribute marijuana and sentenced to a term of imprisonment.

As a result of defense counsel's failure to object to the jury instruction, the court was required to determine whether the trial court's failure to instruct the jury on the weight of the substance was plain error which is a rather stringent standard for appellate review.

Notwithstanding, the Appellate Division reversed the conviction concluding that the weight of the CDS was a material element in a drug case, where the offense is possession with intent to distribute or distribution.