Maintaining or Operating a Controlled Dangerous Substance Production Facility Under N.J.S.A. § 2C:35-4

Under N.J.S.A § 2C:35-4 any person who knowingly maintains or operates any premises, place or facility used for the manufacture of methamphetamine, lysergic acid diethylamide, phencyclidine, gamma hydroxybutyrate, flunitrazepam, marijuana in an amount greater than five pounds or ten plants is guilty of monitoring or operating a controlled dangerous substance (“CDS”) facility. Violation of N.J.S.A § 2C:35-4 is a crime of the first degree which carries a term of imprisonment and a fine not to exceed $750,000.00 or five times the street value of all controlled dangerous substances.

N.J.S.A § 2C:35-4 also contains a section for anyone who organizes or finances the manufacturing and production facility. As explained by the New Jersey Supreme Court, an “organizer” is a person who arranges, devises, or plans a drug-trafficking network; a "supervisor" oversees the operation of the drug-trafficking network; a "financier" as one who is responsible for providing the funds or resources necessary to operate a drug-trafficking network; and a "manager" directs the operations of the drug-trafficking network. State v. Afanador, 151 N.J. 41 (N.J. 1997)

If you have been charged by the State as the Leader of a Narcotics Trafficking Network in violation of N.J.S.A 2C:35-3 or maintaining or operating a controlled dangerous substance facility under N.J.S.A. § 2C:35-4 the sentencing and impact if found guilty can be severe.

Being found guilty as the operator of a controlled dangerous substance facility is a First-Degree Crime, resulting in 10 – 20 years of prison, a minimum period of parole ineligibility, and a court imposed fine ranging anywhere between $750,000 or five times the value of controlled dangerous substance facility.

There are many different legal arguments that can be invoked which could potentially result in dismissal or vacated conviction.

The definition of manufacture is expansive and includes the production, preparation, propagation compounding, conversion or processing of a controlled dangerous substance by any means including extraction and chemical synthesis. The definition of manufacture also includes packaging or repackaging or relabeling any controlled dangerous substance. State v Saez, 268 N.J Super. 250 (App. Div. 1993)

For a defendant to be convicted under N.J.S.A. 2C:35-4, he must "maintain" a facility that "manufactures" a controlled dangerous substance. The facility can be a commercial venue or a private residence, but it must be shown that it was to be used on a repeat basis. To establish "maintenance" and sustain a conviction there must be evidence of continuity in use of the premises to manufacture a CDS. State v. Kittrell, 145 N.J. 112 (N.J. 1996) There must be evidence that the defendant intended to preserve the facility and carry on using it.

An example of what constitutes “maintenance” of a drug production facility was expressed by the New Jersey Supreme Court in State v Kitrell. In the case the defendant was observed by law enforcement for nearly a year outside an apartment in Hackensack that he did not own nor reside in. Law enforcement obtained a search warrant for the apartment and uncovered twenty-two vials of cocaine, sixteen small yellow plastic bags and fifty small blue bags containing cocaine. The owner of the apartment told police that the drugs that were found belonged to the defendant and added that "he buys it in New York and cuts it up in my apartment." This statement indicating that the defendant used the apartment to repackage drugs on more than one occasion along with the drugs seized that were packaged for distribution created a reasonable inference that the defendant maintained the apartment as a packaging facility. Defendant's continued use of the apartment as a facility to cut up, package and repackage crack cocaine satisfied the maintenance requirement of a drug production facility under N.J.S.A. 2C:35-4.

Our attorneys have extensive experience in controlled dangerous substance offenses and have handled such cases throughout the State. An experienced and dedicated member of Lubiner, Schmidt & Palumbo can be reached now at 1-908-709-0500.

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