[N.J.S.A. 2C:39-7b(1)]2
NOTE
[The following should be charged before the beginning of the second trial if it is tried before the same jury that decided the possessory charge of a weapon or firearm]
Now there is an additional charge for you to consider.
Count_________ charges the defendant with possession of a___________by a previously convicted person. You must disregard completely your prior verdict, and consider anew the evidence previously admitted on the possession of a weapon. The defendant is entitled to the presumption of innocence. Each and every material fact that makes up the crime, including the element of possession, must be proven by the State beyond a reasonable doubt.3
[CHARGE IN ALL CASES]
Count___________ of the indictment charges defendant with violating a statute, which reads as follows:
Any person having been convicted in this State or elsewhere of [certain enumerated offenses4] OR [a predicate offense]5 who purchases, owns,
1 This charge should be used when the indictment charges a fourth degree crime involving the possession of a prohibited weapon under N.J.S.A. 2C:39-7a.
2 This charge may not be appropriate where the prior conviction was for domestic violence.
3 See State v. Ragland, 105 N.J. 189, 195 (1986).
4 The crimes set forth in the statute are: aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation in violation of N.J.S.A. 2C:16-1, or endangering the welfare of a child pursuant to N.J.S.A. 2C:24-4, stalking in violation of N.J.S.A. 2C:12-10 or a crime involving domestic violence as defined in N.J.S.A. 2C:25-19, whether or not armed with or having in his/her possession a weapon enumerated in subsection r. of N.J.S.A. 2C:39-1. Additionally, the following crimes are included: N.J.S.A. 2C:35-3 through N.J.S.A. 2C:35-6 inclusive; N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-11; N.J.S.A. 2C:39-3; N.J.S.A. 2C:39-4; or N.J.S.A. 2C:39-9. Unless the defendant stipulates, see note 4, infra, the prior crimes should be sanitized. See State v. Brown, 180 N.J. 572, 585 (2004). Thus, the trial court should refer to them as crime(s) of the appropriate degree. For example, if the offense were aggravated sexual assault, the court would indicate that defendant previously was convicted of a crime of the first degree. Nothing prevents a defendant, however, from choosing to inform the jury of the name of the prior crime of which he/she was convicted.
5 See State v. Kevin Brown, 180 N.J. at 585 (if defendant stipulates to the offense, the jury must be instructed only that defendant was convicted of a predicate offense. If defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment). See also State v. Alvarez, 318 N.J. Super. 137, 150-54 (App. Div. 1999) (defendant’s offer to stipulate that his or her prior convictions meet the status element of N.J.S.A. 2C:39-7 must be granted). Accord State v. Harvey, 318 N.J. Super. 167, 173 (App. Div. 1999).
CERTAIN PERSONS NOT TO
HAVE ANY FIREARMS
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possesses or controls a firearm is guilty of a crime.
In order for you to find defendant guilty, the State must prove each of the following elements beyond a reasonable doubt:
1. Exhibit________is a firearm [or that there was a firearm].
2. Defendant purchased, owned, possessed or controlled the firearm [on the date alleged in the indictment].
3. Defendant is a person who previously has been convicted of [a crime of the ______degree] OR [a predicate offense].
The first element the State must prove beyond a reasonable doubt is that exhibit_______is a firearm [or that there was a firearm]. A “firearm” means any handgun6, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eights of an inch in diameter, with sufficient force to injure a person.
The second element the State must prove beyond a reasonable doubt is that defendant knowingly7 purchased, owned, possessed or controlled a weapon. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he is aware that it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.
6 Handgun means any pistol, revolver or other firearm originally designed or manufactured to be fired by the use of a single hand. N.J.S.A. 2C:39-1k. The handgun need not be presently operable. State v. Gantt, 101 N.J. 573 (1986).
7 N.J.S.A. 2C:2-2c(3) applies the culpable state of mind of knowingly pursuant to N.J.S.A. 2C:2-2b(2) to this statutory crime.
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Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inference from defendant’s conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he had a certain state of mind when he did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his acts and conduct and from all he said and did at the particular time and place and from all surrounding circumstances established by the evidence.
To possess”8 an item under the law, one must have a knowing intentional control of that item accompanied by a knowledge of its character. So, a person who possesses [identify relevant item(s)] must know or be aware that he/she possesses it, and he/she must know what it is that he/she possesses or controls, [that it is a___________].
[Where applicable charge the following: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to “possess” within the meaning of the law, the defendant must knowingly procure or receive the item possessed or be aware of (his/her) control thereof for a sufficient period of time to have been able to relinquish (his/her) control if (he/she) chose to do so.
A person may possess _____________(an item) even though it was not physically on (his/her) person at the time of the arrest, if (he/she) had in fact, at some time prior to (his/her) arrest, had control and dominion over it.
Possession means a conscious, knowing possession, either actual or constructive.
[CHARGE THE FOLLOWING PARAGRAPHS WHICH APPLY TO CASE]
ACTUAL POSSESSION
A person is in actual possession of a particular article or thing when (he/she) first, knows what it is: that is, (he/she) has knowledge of its character, and second, knowingly has it on (his/her) person at a given time.
8 N.J.S.A. 2C:2-1. Additionally, charge any applicable and appropriate statutory inferences. For example, see N.J.S.A. 2C:39-2 which creates certain statutory inferences when a weapon is found in a motor vehicle. See also, N.J.R.E. 303.
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CONSTRUCTIVE POSSESSION9
Possession may be constructive instead of actual. As I just stated, a person who, with knowledge of its character, knowingly has direct physical control over a thing, at a given time, is in actual possession of it.
Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to exercise intentional control or dominion over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item.
JOINT POSSESSION
Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive knowing possession of an item, possession is joint.
[Choose the appropriate next paragraph from the following three:]
[If defendant does not stipulate to the predicate offense(s), use the following paragraph:]
The third element the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of the crime(s) of the ________degree. The term “convicted of the crime(s) of . . .” means a judgment of conviction entered by a court of competent jurisdiction in this State, New Jersey, or elsewhere.10 [Read if appropriate: If defendant has been convicted in another state, territory, commonwealth or other jurisdiction of the United States, or any country in the world, in a court of competent jurisdiction, of a crime which in said other jurisdiction or country is comparable to the crime(s)of ______________, then defendant is subject to the
9 In State v. Spivey, N.J. (2004), the Supreme Court affirmed a conviction under N.J.S.A. 2C:39-4.1(a), possession of a firearm while committing certain drug offenses, and noted that the statute suggested a temporal and spatial link between possession of the firearm and the drugs. The Court ruled that the evidence “must permit the jury to infer that the firearm was accessible for use in the commission of the [drug] crime.” In the appropriate case, the possession charge may be supplemented by this language.
10 The judgment of conviction should be redacted to show only the degree of the offense for which defendant previously was convicted unless the defendant requests that the un-redacted judgment of conviction be entered into evidence.
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provisions of this statute.11].
[or]
[Where defendant does stipulate to the predicate offense, use the following:]
The third element the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of a crime named in the statute or [of the predicate offense]. In this matter, the parties have stipulated, or agreed, that defendant has previously been convicted of such a crime [or a predicate offense]. You are instructed as followed with regard to the stipulation that you should treat these facts as being undisputed, that is, the parties agree that these facts are true. As with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict.
[Charge in case which is based upon defendant’s prior conviction:]
Normally evidence [of defendant’s prior conviction(s)] or [of the predicate offense(s)] is not permitted under our rules of evidence. This is because our rules specifically exclude evidence that a defendant has committed prior crimes when it is offered only to show that (he/she) has a disposition or tendency to do wrong and therefore must be guilty of the present offense. However, our rules do permit evidence of prior crimes when the evidence is used for some other purpose.12
In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense.13 You may not use this evidence to decide that defendant has a tendency to commit crimes or that (he/she) is a bad person. That is, you may not decide that, just because the defendant has committed [a] prior crime[s], (he/she) must be guilty of the present crime[s]. The evidence produced by the State concerning [a] prior conviction[s] is to be considered
11 N.J.S.A. 2C:39-7c.
12 See State v. Marrero, 148 N.J. 469, 495-96 (1997); State v. Cusick, 219 N.J. Super. 452, 466-67 (App. Div. 1987) (cited in State v. Oliver, 133 N.J. 141, 158 (1993)).
13 If defendant testifies, this portion of the charge should be altered.
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in determining whether the State has established its burden of proof beyond a reasonable doubt.14
[Charge if applicable (where the same jury has already convicted the defendant of another possessory weapons offense or offenses – a bifurcated trial situation):15
On the issue of possession, although you may consider evidence previously introduced, the State must prove beyond a reasonable doubt that defendant possessed the [firearm] before you may find the defendant guilty on this charge. In deciding whether the State has carried its burden of proof, you must set aside your previous verdict on this question and begin your deliberations anew.16]
[Charge in all cases:]
In summary, the State must prove three elements beyond a reasonable doubt - first, that exhibit________is a firearm (or that there was a firearm); second, that defendant knowingly purchased, owned, possessed or controlled the firearm on_____________[the date alleged in the indictment]; and third, [choose the appropriate phrase:] that defendant is a person who previously has been convicted of [a crime of the ______________degree] OR [a crime named in the statute] OR [of the predicate offense].
If you find that the State has proven beyond a reasonable doubt each of these elements, then you must find the defendant guilty. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty.
14 State v. Kevin Brown, 180 N.J. at 583 (absence of information about all of the elements of the crime might cause the jury to question the criminality of the defendant’s conduct, and in turn influence the jury when it considers the possession element.)
15 The defendant may affirmatively request that this charge not be given. Alvarez, 318 N.J. Super. at 155.
16 Alvarez, 318 N.J. Super. at 154-55.
