POSSESSION OF RADIO TO INTERCEPT
EMERGENCY COMMUNICATIONS
WHILE
COMMITTING OR ATTEMPTING TO COMMIT A CRIME
(N.J.S.A.
2C:33-22)
The defendant is charged with possession
of a radio to intercept emergency communications while committing or attempting
to commit a crime. The statute provides
in pertinent part:
Any person who, while in the course of
committing or attempting to commit a crime, including the immediate flight
therefrom, possesses or controls a radio capable of receiving any message or
transmission made on or over any police, fire or emergency medical
communications system, shall be guilty of a crime ...
In order for you to find the defendant
guilty of this offense, you must find that the State has proved the following
elements beyond a reasonable doubt:
1. the defendant knowingly possessed or knowingly controlled a radio
capable of receiving any message or transmission made on or over any police,
fire or emergency medical communications system; and
2. that the defendant possessed or controlled that radio while in the
course of committing or attempting to commit
a crime.
The first element that the State must
prove beyond a reasonable doubt is that the defendant knowingly possessed or
knowingly controlled a radio capable of receiving a message or transmission
made on or over a police, fire or emergency medical communications system.
A police, fire or emergency medical
communications system is a radio system or other communications system used by
police officers, firefighters and/or emergency medical personnel to communicate
among themselves and/or with each other.[1]
POSSESSION
(N.J.S.A.
2C:2-1)
To “possess” 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 an item such as (_________________________
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 ____________________). [WHERE APPLICABLE, charge: Possession cannot
merely be a passing control, fleeting or uncertain in its nature.] In other words, to “possess” an item, one
must knowingly procure or receive an item 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.
The State must prove beyond a reasonable
doubt that a possessor acted knowingly in possessing the item. 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 the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he/she
is aware that it is practically certain that that conduct will cause such a
result. Knowing, with knowledge, or
equivalent terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by
inferences from conduct, words or acts. Therefore, it is not necessary for the
State to produce witnesses to testify that a particular defendant stated, for
example, that he/she acted with knowledge when he/she had control over a particular thing. It is within your power to find that proof of
knowledge has been furnished beyond a reasonable doubt by inference which may
arise from the nature of the acts and the surrounding circumstances.
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.
Possession
means a conscious, knowing possession, either actual or constructive.
[CHARGE THOSE FOLLOWING PARAGRAPHS AS APPLY TO
YOUR CASE]
ACTUAL
POSSESSION
A person
is in actual possession of an item 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
POSSESSION
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 an item 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 and
has the intention to exercise control 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 an item, possession is
sole. If two or more persons share
actual or constructive knowing possession of an item, possession is joint.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant was in the course of committing or attempting to commit a crime.[2]
Here,
the State contends that defendant was in the course of [INSERT CRIME COMMITTED OR ATTEMPTED] .][3]
An act
is considered to be in the course of committing a crime if it occurs during an
attempt to commit a crime, during the commission of the crime itself, or during
the immediate flight after the attempt to commit or the commission of the
crime.
If you
find that the State has proved, beyond a reasonable doubt, the elements as I
have just explained them, then you must find the defendant guilty. If, on the other hand, you find that the
State has failed to prove any of the elements beyond a reasonable doubt, then
you must find the defendant not guilty.
[1] Radar devices used to monitor vehicle speed are not a
“police, fire, or emergency medical communications system.” N.J.S.A. 2C:33-23.
[2] When the case involves an attempt theory, attempt should be
charged. See Model Charge for N.J.S.A.
2C:5-1. Note that attempt requires a
purposeful state of mind. State v.
Robinson, 136 N.J. 476 (1994).
[3] The State must identify the crime that defendant was in the
course of committing or attempting to commit when he/she possessed a radio
capable of receiving a message made over an emergency communications
system. The court’s charge should advise
the jury of the elements of the underlying crime. Cf.
State v. MacIlwraith, 344 N.J. Super. 544, 548 (App. Div.
2001).
