(Dum-dum, hollow nose bullets or body armor penetrating bullets)
(N.J.S.A. 2C:39-3f)
Count of the indictment charges the defendant as follows:
(Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:39-3f) on which this indictment is based reads as follows:
Except as authorized by statute, it shall be unlawful for any person knowingly to possess any (hollow nose or dum-dum bullet) [or] (body armor breaching or penetrating ammunition).
(The defendant does not claim legal authorization, so the exceptions in the statute are not applicable in this case.1)
The statute, read together with the indictment, identifies the elements which the State must prove beyond a reasonable doubt to establish guilt of the defendant on this (count of the) indictment. They are as follows:
1. S in evidence is (a hollow nose or dum-dum bullet)[or](body armor breaching or penetrating ammunition).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. That the defendant acted knowingly.
In regard to the first element, a “hollow nose bullet or dum-dum bullet” can be a cartridge of any caliber in which the front portion of the projectile is designed to expand upon entering a
1 Law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.A. 2C:39-6 or a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921, and has in his possession a valid Collector of Curios and Relics License issues by the Bureau of Alcohol, Tobacco and Firearms.
POSSESSION OF PROHIBITTED WEAPONS AND DEVICES
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target. The jacket metal does not cover the entire bullet and an area near the nose is left uncovered. There is a pit or hollow present in the front of the nose.2
[or]
In regard to the first element, body armor penetrating bullets means (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than .025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or penetrating body armor. Body armor is bullet- resistant material intended to provide ballistic and trauma protection.3
In regard to the second element, that the defendant had under (his/her) control or possessed S in evidence,4 the word “possess” as used in criminal statutes signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character.
Thus, the person must know or be aware that (he/she) possesses the (hollow point bullet or dum-dum bullet)[or](body armor penetrating bullet), and (he/she) must know what it is that (he/she) possesses or controls that it is a prohibited weapon or device.
[Where applicable charge the following: 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
2 People v. Lanham, 230 Cal. App. 3d 1396, 1399, 282 Cal. Rptr. 62 (Cal. Ct. of Appeal 1991) for expert testimony on the definition of hollow nose bullets.
3 N.J.S.A. 2C:39-13.
4 If in a motor vehicle, see N.J.S.A. 2C:39-2. Use “inference” instead of “presumption”. State v. Ingram, 98 NJ 489 (1985); State v. Bolton, 230 N.J. Super. 476, 480 (App. Div. 1989). Comment 2 N.J.R.E. 301 and 303.
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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. (Define “knowing” N.J.S.A. 2C:2-2 and any other definition relevant to the item allegedly possessed.)
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.
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, (he/she) 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. Constructive possession means possession in which the person does not physically have the property, but though not physically on one’s person, he 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.
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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.
In regard to the third element, that the defendant acted 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 circumstances 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 is aware that it is practically certain that (his/her) conduct will cause such a result. “Knowing,” “with knowledge” or equivalent terms have the same meaning.5
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 by direct evidence, such as a statement by the defendant that (he/she) had particular knowledge when he did something. 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 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 evidence,
5 N.J.S.A. 2C:2-2b(1).
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in his possession.
To reiterate, the three elements of this offense are that:
1. S in evidence is (a hollow nose or dum-dum bullet)[or](body armor breaching or penetrating ammunition).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. That the defendant acted knowingly.
If you find that the State had proven all these elements beyond a reasonable doubt, then you must return a verdict of 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 return a verdict of not guilty.
