[N.J.S.A. 2C:39-7b(2)]
NOTE
[The following should be charged before the beginning of the second trial if this count 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 firearm 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.1
[CHARGE IN ALL CASES]
Count _________of the indictment charges defendant with violating a statute which reads as follows:
A person having been convicted in this State or elsewhere of [a disorderly persons offense involving domestic violence] [an enumerated offense] [a predicate offense]2 . . . who purchases, owns, possesses or controls a firearm is guilty of a crime.
1 See State v. Ragland, 105 N.J. 189, 195 (1986).
2 See State v. Brown, 180 N.J. 572, 585 (2004) (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). Defendant also may choose to have the jury informed of the prior
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In order for you to find defendant guilty, the State must prove each of the following elements beyond a reasonable doubt:
1. That exhibit ________is a firearm [or that there was a firearm].
2. That defendant purchased, owned, possessed or controlled the firearm [on the date alleged in the indictment].
3. That defendant is a person who previously has been convicted of [a disorderly persons offense involving domestic violence whether or not armed or in possession of a weapon] [the enumerated offense] [the predicate offense].
conviction.
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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”3 means any handgun4, 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 knowingly5 purchased, owned, possessed or controlled the firearm. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she 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/she is aware that it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or
3 N.J.S.A. 2C:39-1f.
4 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).
5 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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equivalent terms have the same meaning.
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 defendant said that he/she had a certain state of mind when he/she did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of his/her acts and conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.
To possess6 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 the firearm 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 is, that it is a firearm.
[Where applicable charge the following: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] To “possess” within the meaning of the law, the defendant must
6 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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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, 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.
CONSTRUCTIVE POSSESSION7
Possession may be constructive instead of actual. 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
7 In State v. Spivey, 179 N.J. 229 (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.
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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 option from the following three:]
OPTION #1
[If defendant chooses to have the jury know the nature of the prior conviction(s), use the following:]
The third element that the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of [a] disorderly persons offense[s] involving domestic violence whether or not armed with or having in his/her possession a weapon. A disorderly persons offense is not a crime within the meaning of this State’s constitution. Convictions of such offenses do not give rise to any disability or legal disadvantage based on a conviction of a crime.8 Domestic violence means the occurrence of one or more acts of [choose appropriate] [simple assault], [false imprisonment], [lewdness], [criminal mischief], [criminal trespass]9 inflicted upon
[CHOOSE APPROPRIATE]
a person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.10
An emancipated minor is [choose appropriate] [someone who is under 18 years of age but has been married] [someone who has entered military service] [someone who has a child or is
8 N.J.S.A. 2C:1-4b.
9 These offenses are the only ones listed in N.J.S.A. 2C:25-19a, defining domestic violence, which are disorderly persons offenses.
10 N.J.S.A. 2C:25-19d
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pregnant] [someone who has previously been declared by a court or an administrative agency to be emancipated].11
OR
a person, regardless of age, who has been subjected to domestic violence by a person with whom the
person has a child in common or with whom the person anticipates having a child in common if one of the parties is pregnant.12
OR
a person who has been subjected to domestic violence by a person with whom the person has had a dating relationship.13
The term “convicted of an offense” means a judgment of conviction entered by a court of competent jurisdiction in New Jersey, or elsewhere.14 [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 an offense(s) which in the other jurisdiction or country is comparable to the offense(s) of a disorderly persons offense involving domestic violence, then defendant is subject to the provisions of this statute, then read following]15: The offense of_________is comparable to a disorderly persons offense in New Jersey.16
OPTION #2
11 N.J.S.A. 2C:25-19e
12 N.J.S.A. 2C:25-19d.
13 N.J.S.A. 2C:25-19d.
14 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.
15 N.J.S.A. 2C:39-7c.
16 Whether the foreign offense satisfies this provision is a question for the trial judge. State v.
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[If defendant does not 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 [an enumerated offense] [a predicate offense]. The term “convicted of an offense” means a judgment of conviction entered by a court of competent jurisdiction in New Jersey, or elsewhere. [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 an offense(s) which in the other jurisdiction or country is comparable to the offense(s) of a disorderly persons offense involving domestic violence, then defendant is subject to the provisions of this statute.]
[If defendant stipulates to the predicate offense, use the following:]
OR
The third element the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted [of the enumerated offense] [of the predicate offense]. In this matter, the parties have stipulated, or agreed, that defendant has previously been convicted of [an enumerated offense] [a predicate offense]. With regard to the stipulation, 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
Schumann, 111 N.J. 470, 475 (1988).
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defendant who has committed prior offenses 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.17
In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense.18 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 disorderly persons offense(s) involving domestic violence] [predicate offense(s)] [enumerated offense(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 in determining whether the State has established its burden of proof beyond a reasonable doubt.19
[Charge if applicable (where the same jury has already convicted the defendant of another possessory weapons offense or offenses – a bifurcated trial situation):20
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
17 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)).
18 If defendant testifies and has a record which includes indictable offenses, the court should instruct the jury on the use of these convictions. See Model Jury Charges, Criminal, Credibility - Prior Conviction of a Defendant.
19 State v. 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.)
20 The defendant may affirmatively request that this charge not be given. State v. Alvarez, 318 N.J. Super. at 155.
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anew.21]
[Charge in all cases:]
If you find that the State has proven every element of the offense beyond a reasonable doubt, 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.
21 Alvarez, 318 N.J. Super. at 154-55.
