Territorial Jurisdiction (Part 2)

The State relies on N.J.S.A. 2C:1-3(a)(1) to assert jurisdiction over defendants with respect to the charge of strict liability for drug induced death. Specifically, the State focuses on the language, “conduct which is an element of the offense that occurs within this State.” We assess the State’s assertion of jurisdiction in light of the strict liability statute, which, as noted, provides in relevant part that any person who manufactures, distributes or dispenses a CDS classified in Schedules I or II, in violation of subsection (a) of N.J.S.A. 2C:35-5, is strictly liable for a death which results from the injection, inhalation, or ingestion of that substance, and is guilty of a crime of the first degree. N.J.S.A. 2C:35-9(a).

Relying on United States v. Brunty, 701 F.2d 1375, 1380-82 (11th Cir. 1983), the State argues the element of “distribution” is not limited to the physical transfer of possession of CDS, and instead encompasses “participation in the transaction viewed as a whole.” (citations omitted). Thus, the State contends distribution “may also consist of or include other acts perpetrated in furtherance of a transfer or sale,” thereby making venue proper in any district in which such acts occurred, not merely the district in which the drugs changed hands. Id. at 1381. Adopting this expansive interpretation of the distribution element, the State submits a reasonable jury could find that distribution began when Ferguson and Potts obtained the heroin in New Jersey and began their trip back to New York where they then sold portions of the drug to Cabral.

Alternatively, the State argues that, even if distribution can be said to occur only at the moment when the drugs change hands, jurisdiction is proper here because proofs necessary to establish the distribution element of the drug-induced death offense occurred in New Jersey. Specifically, the State contends the initial possession and transportation of heroin by Ferguson and Potts in New Jersey are “intrinsic” to the drug’s ultimate distribution in New York, and thus sufficient to confer jurisdiction here.

The Court indicates how it will decide the case by referring to the State’s interpretation of “distribution” as “expansive.” The term foreshadows the Court’s preference for a “plain language” or “commonly accepted” understanding of “distribution.”