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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Monday, August 06, 2007

In the Matter of Expungement Application of G.R.

08-03-07 A-0079-06T1

N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.

A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.