MANUFACTURING OF BURGLAR’S TOOLS
(N.J.S.A.
2C:5-5a)
[Count
of] [T]he indictment charges defendant with
manufacturing of burglar’s tools. That
section of our statutes provides that:
Any person who
manufacturers . . . any engine, machine, tool or implement adapted, designed,
or commonly used for committing or facilitating the offense of ,[1]
knowing the same to be so adapted, designed, or commonly used, [with the
purpose to use or employ it] [OR with a purpose to provide it to some person
whom he knows has such a purpose to use or employ it], is guilty of an offense.
In order for defendant to
be found guilty of this offense, the State must prove each of the following
elements beyond a reasonable doubt:
1. that
the defendant manufactured an engine, machine, tool or implement adapted,
designed, or commonly used for committing or facilitating the offense of ;
2. that
he/she
knew the engine, machine, tool or implement was adapted or designed or commonly
used for committing or facilitating that offense; and
3. that
his/her
purpose was [to use or employ it] [OR to provide it to some other person whom he/she
knew had the purpose to use or employ it] to commit or facilitate that offense.[2]
The
first element that the State must prove beyond a reasonable doubt is that
defendant manufactured an engine, machine, tool or implement adapted, designed,
or commonly used for committing or facilitating the offense of , in this case
[identity by name, type, or exhibit number].
The
engine, machine, tool or implement that defendant is charged with manufacturing
must be specially or specifically designed or adapted or commonly used for
commission or facilitation of this offense and not merely be something designed
or adapted or commonly used for some other purpose that can be or is used for
committing or facilitating this offense.[3]
The
elements of the offense of are [see appropriate Model Jury Charge] OR
[I have already defined for you (OR I will define for you) the elements of
the offense of in the instructions regarding count _____ of the
indictment].
The
second element that the State must prove beyond a reasonable doubt is that
defendant knew that the engine, machine, tool, or implement was designed,
adapted, or commonly used for committing or facilitating the offense of . 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 conduct if he/she
is aware that it is practically certain that his/her conduct will cause such a result.
The
third element that the State must prove beyond a reasonable doubt is that
defendant’s purpose was to use or employ the engine, machine, tool or implement
[OR to provide the engine, machine, tool or implement to another whom he/she
knows has the purpose to use or employ it] for committing or facilitating
the offense of . A person acts purposely with respect to the
nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause
such a result. A person acts “purposely”
with respect to attendant circumstances if he/she
is aware of the existence of such circumstances or he/she
believes or hopes that they exit.
[IF
DEFENDANT IS ACCUSED OF PROVIDING IMPLEMENT TO ANOTHER:
I have already defined the term
“knowing” for you].
Purpose
and knowledge are conditions of the mind that cannot be seen and that can be
determined only by inferences from 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/she
had a certain state of mind when he/she
engaged in a particular act. 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 defendant’s
acts and conduct, from all that he/she
said and did at the particular time and place, and from all surrounding
circumstances.
If
the State has failed to prove each element of this offense beyond a reasonable
doubt, then you must find the defendant not guilty. If the State has proven each element of this
offense beyond a reasonable doubt, then you must find defendant guilty.
CHARGE
IF APPROPRIATE:
POSSESSION OF BURGLAR’S TOOLS
(lesser included offense)
As part of his/her denial of guilt to the charge of manufacturing burglar’s tools,
defendant asserts that he/she
did not manufacture , but merely possessed it
without having any role or part in its manufacture. It is the State’s burden to prove beyond a
reasonable doubt that defendant manufactured rather than merely possessed the
engine, machine, tool or implement.
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 item (in this case ),
and he/she
must know what it is that he/she
possesses or controls (that it is (they are) burglar’s tool(s)).
[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 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 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/she
is aware of the presence of the property and is able to and has the intention
to exercise control 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.
If the State has failed to prove
each element of the offense beyond a reasonable doubt, then you must find the
defendant not guilty. If the State has
proven each element of the offense beyond a reasonable doubt, then you must
find defendant guilty of manufacturing burglar’s tools. If the State has not proven beyond a
reasonable doubt that defendant manufactured rather than possessed the engine,
machine, tool or implement, but has proven all of the other elements beyond a
reasonable doubt, then you must find the defendant guilty of possession of
burglar’s tools.
[1] Specify here, and at every other
relevant point in the charge, the “offense in chapter 20 of this Title or
offenses involving forcible entry into premises” that defendant is charged with
manufacturing the burglar’s tool adapted, designed, or commonly used for
committing or facilitating.
[3] See Cannel, Criminal Code
Annotated, Comments 2. (second
paragraph) and 4. to N.J.S.A. 2C:5-5 (“[T]he linkage of the manufacture
of implements with the publishing of plans suggests that the higher penalty was
intended for those persons who produce a specialized implement. Such persons pose a greater danger to the
public”).
