Heroin Possession With Intent to Distribute

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Heroin Possession With Intent to Distribute, contrary to N.J.S.A. 2c:35-5

New Jersey law prohibits controlled dangerous substance (CDS) possession with intent to distribute. It is defined as

any person who knowingly or purposely:

  1. manufactures, distributes, or dispenses, or possesses or has under his control with intent to manufacture, distribute or dispense, CDS or CDS analog, or
  2. creates, distributes, or possesses or has under his control with intent to distribute counterfeit CDS.

The degree and penalties for heroin possession with intent to distribute, based on N.J.S.A. 2C:35-5, depend on the amount of heroin, including any adulterants or dilutants.

What is possession?

Possession Generally

New Jersey law requires a voluntary act and a culpable mental state in the definition of any crime.1 Thus, possession is an act if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.2 To be certain, however, possession is not limited to ownership. Instead, possession is the ability to control the thing possessed.

Types of Possession

New Jersey law recognizes three types of possession: actual, constructive, and joint.

First, actual possession is physical or manual control.

Additionally, constructive possession can be inferred from the circumstances. Indeed, it arises out of one’s conduct with respect to the item. Unlike actual possession, physical or manual control is not required for constructive possession. Instead, constructive possession can be found where the circumstances imply an intention to exercise control and it is reasonable to infer that the capacity to do so exists.3 Consequently, “wrong place, wrong time” is not necessarily a legal defense. For example, the court upheld a possession with intent to distribute conviction of a vehicle’s passenger involving drugs in plain view near the driver’s seat and the odor of marijuana in the car.4 Thus, hiding one’s head in the sand is not a legal defense.

Finally, joint possession is when two or more people share actual or constructive knowing possession of an object. Similar to constructive possession, joint possession can also be inferred from the circumstances.


First Degree Crime

Quantity: Five ounces or more
State Prison: Between ten years and twenty years
Mandatory minimum: One-third to one-half of sentence
Fines: Between $200,000.00 and $500,000.00
DEDR Penalty*: $3,000.00

Second Degree Crime

Quantity: One-half ounce but less than five ounces
State Prison: Between five years and ten years
Fines: Up to $150,000.00
DEDR Penalty*: $2,000.00

Third Degree Crime

Quantity: less than one-half ounce
State Prison: Between three years and five years
Fines: Between $15,000.00 and $75,000.00
DEDR Penalty*: $1,000.00

Additional Penalties

Restraining Order
Drug Court: for qualified applicants
Victims of Crime Compensation Office Penalty (VCCO): $50
Law Enforcement Officer Training & Equipment Fund: $30
Safe Neighborhood Services Fund Assessment: $75
Drug Abuse Education Fund: $50
Lab Fee: $50
Driver’s License Suspension: Up to two years
Court Costs

*DEDR stands for Drug Enforcement Demand Reduction.

Did the cops charge you with Heroin Possession With Intent to Distribute?

New Jersey Criminal Defense Lawyer Michael A. Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide confidential consultations in all cases involving Heroin Possession With Intent to Distribute under N.J.S.A. 2c:35-5.



1 State v. Pena, 178 N.J. 297, 304 (2004).
2 N.J.S.A. 2c:2-1(c).
3 State v. Stewart, 96 N.J. 596 (1984).
4 State v. Scott, 398 N.J. Super. 142, 151 (App. Div. 2006), aff’d o.b., 193 N.J. 227 (2008).