PUBLICATION OF PLANS OR
INSTRUCTIONS FOR
BURGLAR'S TOOLS
(N.J.S.A.
2C:5-5b)
[Count of] [T]he
indictment charges defendant with publishing plans or instructions dealing with
the manufacturing of burglar's tools.
That section of our statutes provides that:
Any person who publishes
plans or instructions dealing with the manufacture or use of any engine,
machine, tool or implement adapted, designed, or commonly used for committing
or facilitating the offense of ,[1]
with the purpose that such publication be used committing or facilitating that
offense, 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
published plans or instructions dealing with an engine, machine, tool or
implement adapted, designed, or commonly used for committing or facilitating
the offense of ;
(2) that his/her purpose in publishing
such plans or instructions was that they be used or employed to commit or
facilitate that offense.[2]
The first element that the State
must prove beyond a reasonable doubt is that defendant published plans or
instructions dealing with an engine, machine, tool or implement adapted,
designed, or commonly used for committing or facilitating the offense of __________. Publish means to make the plans or instructions available to others. The State alleges that the plans or
instructions were for [identify name or type of burglar's tool(s) described in
the plans or instructions].
The engine, machine, tool or
implement that defendant is charged with publishing the plans or instructions
for 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's purpose was that the
plans or instructions for the engine, machine, tool or implement that he/she
published would be used 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 exist.
Purpose is a condition 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 PLANS OR INSTRUCTIONS FOR BURGLAR'S TOOLS
(lesser
included offense)
As part of his/her denial
of guilt to this charge, defendant asserts that he/she did not publish the plans or instructions
for the burglar's tools, but merely possessed them without having any role or
part in their publication. It is the
State's burden to prove beyond a reasonable doubt that defendant published the
plans or instructions rather than merely possessed them.
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 (namely, plans or
instructions for burglar’s tools).
[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
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 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 of publishing plans or instructions for burglar's
tools. If the State has not proven
beyond a reasonable doubt that defendant published rather than possessed the
plans or instructions, but has proven all of the other elements beyond a
reasonable doubt, then you must find the defendant guilty of possession of
plans or instructions for 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" for which defendant is charged
with publishing plans or instructions.
[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").
