Possession vs. Intent
Interviewer: Regarding possession versus intent to sell or distribute. How do the penalties differ for that even if it’s just marijuana?
James Abate: When you’re dealing with marijuana possession with the intent to distribute, that’s coming under 2C:35-5 and what you’re dealing with is the person that has an amount of marijuana on them in sufficient nature that it looks like they are distributing, and they are looking to sell it to other people. New Jersey will give a break to someone who has purchased marijuana and just wants to smoke a little bit, but they are not going to give the same leniency to the person who sold it to them. They are going to be looking at a fourth-degree criminal charge in the superior court. Sometimes that means, depending on the county, we can get them into a pretrial intervention program.
It’s a more serious charge with up to a year and a half in state prison. That’s also going to bring it into a more serious and more heavily litigated matter because then we’re really looking to find out things like if the marijuana was individually packaged so it really looks like it’s being distributed. I’ve had clients who tell me that reason that they had the packages individually wrapped is because they are planning to use them for themselves. They are going on for a night on the town. They are going to take a small amount. They’re not going to take a large amount in order to prevent themselves from being in a situation they are in, which is being accused of distributing marijuana. The bottom line is if you are under 50 grams, you are dealing with a lighter sentence than distribution. That doesn’t even get into the amount necessary for immigration purposes, which really is a different question.
Interviewer: In order for someone to get a felony, how much marijuana would they have to have? Would it be over 50 grams?
James Abate: Over 50 grams.
Actual Vs. Constructive Possession
Interviewer: What do the terms actual possession versus constructive possession refer to?
James Abate: That refers to – and it’s probably a badly named pun – joint possession. That means that two or more people can have possession of the same object. Let’s say the police pull someone over. They smell that there’s raw marijuana in the car. They search the vehicle. Let’s assume for the moment it’s a legal search. In the course of conducting the search, they find marijuana in the center console. They are going to arrest and charge everyone who has access to that center console. They are basically going to say to them, you tell us who it was that possessed the marijuana or the heroin or whatever it is, or we’re going to assume that all of you were in possession.
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