POSSESSION OF AN ASSAULT FIREARM

(N.J.S.A. 2C:39-5f)
Defendant(s), _______________________, is charged in count __________ with unlawful possession of an assault firearm. The pertinent language of the statute reads as follows:
Any person who knowingly has in his possession an assault firearm is guilty of a crime...except if the assault firearm is licensed..., registered..., or rendered inoperable.
The crime with which the defendant in this case is charged contains three essential elements, all of which the State must prove beyond a reasonable doubt. They are:
1. S__________ is an assault firearm;
2. The defendant knowingly possessed the assault firearm;
and
3. The assault firearm was not licensed, registered, or rendered operable.
A “firearm” is denied as any handgun, 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 projectile 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....1
An assault firearm is any firearm designated in the statute.2 (Charge if applicable.) A is designated in the statute as an assault firearm.
(Charge if applicable.) Any firearm manufactured under any designation which is substantially identical to any of the firearms listed in the statute is also an assault firearm. In this case, the State alleges that S_________ is substantially identical to _______________ which is designated in the statute.3
1N.J.S.A. 2C:39-1(f).
2N.J.S.A. 2C:39-1w(1).
3N.J.S.A. 2C:39-1w(2).
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
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(Include any of the three following definitions of assault firearm if material to the case)
An assault firearm also means a semi-automatic shotgun with either a magazine capacity exceeding six rounds, a pistol grip, or a folding stock.4 “Semi-automatic” means a firearm which fire a single projectile for each single pull of the trigger and is self-reloading or automatically chambers a round, cartridge, or bullet.5 A “pistol grip” means a well-defined handle, similar to that found on a handgun, that protrudes conspicuously beneath the action of the weapon, and which permits the shotgun to be held and fired with one hand.6
An assault firearm also means a semi-automatic rifle with a fixed magazine capacity exceeding 15 rounds.7 “Semi-automatic” mean a firearm which fires a single projectile for each single pull of the trigger and is self-reloading or automatically chambers a round, cartridge, or bullet.8
An assault firearm also means a part or combination of parts designed or intended to convert a firearm into an assault firearm, or any combination of parts from which an assault firearm may be readily assembled if those parts are in the possession or under the control of the same person.9
The second element is that the defendant knowingly possessed the assault firearm.10
4N.J.S.A. 2C:39-1w(3).
5N.J.S.A. 2C:39-1x.
6N.J.S.A. 2C:39-1z.
7N.J.S.A. 2C:39-1(4).
8N.J.S.A. 2C:39-1x.
9N.J.S.A. 2C:39-1w(5)
10See State v. Pelleteri, 294 N.J. Super. 330, 333-334 (App. Div. 1996) where the Court held “that knowledge of the character of the weapon is not an element of the offense...the Legislature intended to proscribe knowing possession, as distinguished from knowledge of the illegal character of the article possessed...In that context, ‘[k]nowing
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(N.J.S.A. 2C:39-5f)
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(The Model Charges on POSSESSION and KNOWINGLY follow. Include joint, constructive, and actual, as appropriate, and charge any applicable and material statutory inference.11)
POSSESSION
The word “possess” as used in criminal statutes signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character.
KNOWINGLY
“Knowingly:” A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if (he/she) is aware that (his/her) conduct is of that nature, or that such circumstance exist, or (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result. “Knowingly,” “with knowledge” or equivalent terms have the same meaning. A person acts knowingly with respect to (his/her) conduct if (he/she) is aware that (his/her) conduct is of that nature. You must determine whether the defendant was aware of the nature of (his/her) conduct in this case. Since knowledge is a state of mind and cannot be seen and can only be determined by inference from conduct, words or acts, it can rarely be proved directly. Therefore, it is not necessary that witnesses be produced by the State to testify that a defendant said (he/she) knowingly did something. (His/her) knowledge may be gathered from (his/her) acts and (his/her) conduct, and
possession is not to be confused with criminal intent or guilty knowledge.’” The trial judge in response to a question arising out of deliberations charged the jury “that defendant could be found guilty if he knowingly possessed the firearm (a semi-automatic rifle with a magazine capacity of seventeen cartridges) but was unaware that its fixed capacity exceeded fifteen rounds.” The case also involved the defenses of mistake of law and mistake of fact which were precluded by the trial judge. The Appellate Court found no error with the rulings of the trial court and affirmed the conviction.
11N.J.S.A. 2C:39-2.
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
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from all the surrounding circumstances reflected in the evidence you have heard and seen in this case. That is, you must be convinced beyond a reasonable doubt that the defendant in this case was aware that (he/she) had S________in (his/her) possession.
POSSESSION CONTINUED
Thus, the person must know or be aware that (he/she) possesses the item, in this case S______, and the person must know what it is that (he/she) possess or controls, in this case, that it is a firearm.
This possession cannot merely be a passing control that is 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 control if (he/she) chose to do so.
A person may possess S________ even though it was not physically on (his/her) person at the time of the arrest, if the person had in fact, at some time prior to (his/her) arrest, had control and dominion over it.
When we speak of possession, we mean a conscious, knowing possession. The law recognizes two kinds of possession: they are actual possession and constructive possession.
ACTUAL POSSESSION
A person is in actual possession of a particular article or thing when (he/she) knows what it is; that is, the person has knowledge of its character and knowingly has it on (his/her) person at a given time.
CONSTRUCTIVE POSSESSION
The law recognizes that possession may be constructive instead of actual. 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 person does not physically have
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
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the property, but though not physically on one’s person, (he/she) is aware of the presence of the property and is able to exercise intentional control or dominion over it.
A person who, although not in actual possession, has knowledge of its character, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.
JOINT POSSESSION
The law recognizes that 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 possession of a thing, possession is joint; that is, if they knowingly share control over the article.
The third element that the State must prove is that the assault firearm was not licensed, registered or rendered inoperable12.
An assault firearm is “licensed” when the possessor obtains a valid license to possess and carry the assault firearm.13
An assault firearms is “registered” when the owner of an assault firearm purchased on or before May 1, 1990 properly registered the assault firearm as one that is legitimate for target shooting purposes before May 30, 1991.14
An assault firearm is “rendered inoperable” when:
1. The firearm is altered in such a manner that it cannot be immediately fired;
2. The owner or possessor of the firearm does not possess or have control over
the parts necessary to make the firearm operable;
12There is no burden on the State to prove operability of the assault firearm. State v. Elrose, 277 N.J. Super. 548, 557 (App. Div. 1994).
13N.J.S.A. 2C:58-5.
14N.J.S.A. 2C:58-12.
POSSESSION OF AN ASSAULT FIREARM
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and
3. The owner of the firearm filed a valid certification prior to May 30, 1991
indicating the date on which the firearm was rendered inoperable.15
If you find that the defendant knowingly possessed the assault firearm, and that there is no evidence that the defendant had a valid license to possess and carry such a firearm or that the defendant legally registered it or rendered it inoperable by filing a valid certification of inoperability, then you may infer, if you think it appropriate to do so based upon the facts presented, that defendant had no such license and that the defendant did not legally register the firearm or render it inoperable.16 Note, however, that as with all other elements, the State bears the burden of showing, beyond a reasonable doubt, the lack of a valid license and registration and that the firearm was not rendered inoperable. You may apply the inference only if you feel it appropriate to do so under all the facts and circumstances.
If you are satisfied beyond a reasonable doubt that the defendant knowingly possessed an assault firearm which was not validly licensed, registered, or rendered inoperable, your verdict must be “guilty.”
If, on the other hand, any of the elements of the crime have not been proven to your satisfaction beyond a reasonable doubt, your verdict must be “not guilty.”
15See State v. Elrose, supra and N.J.S.A. 2C:58-13.
16N.J.S.A. 2C:39-2b.