The New Jersey Supreme court continued in relevant part: Additionally, we explained in State v. Ruiz (1975) that possession with intent to distribute and distribution of drugs are “demonstrably distinguishable criminal offenses. A charge of possession with intent to distribute . . . seeks to condemn the transportation and placement of certain drug substances in the stream of illegal commerce, while an indictment for distribution looks to the final step in drug trafficking — transfer to someone else.” The elements and proofs necessary to convict for each offense are not only different, but also the commission of each offense is often separated temporally.
At this stage of the proceedings, the grand jury record establishes that Ferguson and Potts possessed heroin with the intent to distribute after they purchased the heroin from Byrd. But the strict-liability drug-induced death statute requires that Ferguson and Potts distributed — not possessed with the intent to distribute — the unlawful drugs in New Jersey for territorial jurisdiction to attach. See N.J.S.A. 2C:35-9; N.J.S.A. 2C:1-3(a)(1). We reject the State’s strained argument that Ferguson and Potts “distributed” drugs in New Jersey because they possessed heroin in New Jersey and transported it to another state. Ferguson and Potts’s purchase and possession of drugs may have been “intrinsic to its ultimate distribution,” as the State contends, but that conduct is not the equivalent of distribution. The distribution of drugs focuses on the final transfer to a particular individual.
Ferguson and Potts made no “attempted transfer” or “delivery” of drugs to Cabral in New Jersey. The grand jury record reveals that after they purchased the drugs in Paterson, Ferguson and Potts returned to New York, where they were contacted by Cabral, and where on two successive days they sold drugs and delivered heroin to Cabral, acts that constituted distribution.
Motions to dismiss an indictment are often counter-productive. The standard for dismissal heavily favors the prosecution. It was probably a good idea here, though. That is because of the risk that a jury may have erred on the side of convicting for the most serious offense presented to them in the case of heroin dealers in the midst of our nationwide opiate crisis.