In the case of Byrd, we reach a different result on the issue of “distribution.” The plain language of N.J.S.A. 2C:35-9(a) provides that “any person who distributes any controlled dangerous substance, in violation of subsection a. of N.J.S.A. 2C:35-5, is strictly liable for a death” caused by the drug. At the grand jury hearing, the State presented evidence that Byrd distributed to Ferguson and Potts in New Jersey the heroin they later sold to Cabral — the heroin Cabral ingested causing his death. Therefore, the conduct element of the drug-induced death statute — distribution of heroin — occurred in New Jersey, satisfying a key prerequisite for territorial jurisdiction. See N.J.S.A. 2C:1-3(a)(1).
This was an atypical motion to dismiss the indictment because the State had no way of ever demonstrating that the defendants committed the relevant act of distribution to the decedent in New Jersey. The counter-productive aspect of a typical motion to dismiss an indictment is that it shows the prosecution the holes in their case and guides them in closing those holes during trial preparation. It also guides the prosecution before representment of the case to the grand jury for a superseding indictment. Moreover, most deficiencies in their case are considered “technical” and harmless to the defendant’s rights if the defendant is convicted at trial. That is because proof beyond a reasonable doubt is the standard for a conviction at trial, whereas the much lower probable cause standard is all that is required for an indictment.