[N.J.S.A. 2C:39-7a] model jury charge
NOTE
[The following should be charged before the beginning of the second
trial if it is tried before the same jury that decided the possessory charge of
a weapon or firearm]
Now there is an additional charge for you
to consider.
Count _____ charges the defendant with
possession of a __________________ by a previously convicted person. You must disregard completely your prior
verdict, and consider anew the evidence previously admitted on the possession
of a weapon. The defendant is entitled
to the presumption of innocence. Each
and every material fact that makes up the crime, including the element of
possession, must be proven by the State beyond a reasonable doubt.[2]
[CHARGE
IN ALL CASES]
Count ________of the indictment charges
defendant with violating a statute which reads as follows:
[Select the appropriate section of the
statute from below]
Any
person having been convicted in this State or elsewhere of certain enumerated
offenses[3]]
OR [a predicate offense][4]
who purchases, owns, possesses or controls any weapon as set out in subsection
r. of N.J.S.A. 2C:39-1 is guilty of a crime.
[or]
Any person who
has ever been committed for a mental disorder to any hospital, mental
institution or sanitarium unless he possesses a certificate of a medical doctor
or psychiatrist licensed to practice in New Jersey or other satisfactory proof
that he is no longer suffering from a mental disorder which interferes with or
handicaps him in the handling of a firearm, who purchases, owns, possesses or
controls any weapon as set out in subsection r. of N.J.S.A. 2C:39-1 is
guilty of a crime.
In order for
you to find defendant guilty, the State must prove each of the following
elements beyond a reasonable doubt:
1. Exhibit_______ is a weapon [or that there was
a weapon].
2. Defendant
purchased, owned, possessed or controlled the weapon [on the date alleged in
the indictment].
[Choose appropriate]
3. Defendant is a
person who previously has been convicted of [a crime of the
____________________degree] OR [a predicate offense].
[or]
3.
Defendant is a person who previously has been committed for a mental
disorder to any hospital, mental institution or sanitarium.
The first element the State must prove
beyond a reasonable doubt is that exhibit ______ is a weapon [or that there was
such a weapon]. A weapon means anything
readily capable of lethal use or of inflicting serious bodily injury.[5] [At this point, if the weapon alleged
in the indictment is a specific weapon which is defined in a subsection of N.J.S.A.
2C:39-1, then you should read that definition to the jury]. [Additionally, if appropriate, read the
following passage: Some objects that
may be used as weapons also have more innocent purposes. Where the object is capable of both innocent
and unlawful purposes, the circumstances attending its possession may be
considered by you. “More specifically,
the size, shape and condition of the object, whether it was concealed, and the
time, place and actions of [defendant] are material circumstances in
determining when the particular implement constitutes a weapon under the
provisions of this statute.”[6]]
The second element the State must prove
beyond a reasonable doubt is that defendant knowingly[7]
purchased, owned, possessed or controlled a weapon. A person acts knowingly with respect to the
nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such
circumstances exist or the person is aware of a high probability of their
existence. A person acts knowingly with
respect to a result of the conduct if he/she is aware that it is practically certain that the conduct
will cause 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
inference from defendant’s 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
did a particular thing. 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 his/her
acts and conduct and from all he/she
said and did at the particular time and place and from all surrounding circumstances
established by the evidence.
To possess”[8]
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 [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 a __________]
[Where
applicable charge the following: Possession cannot merely be a passing
control, 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.
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 THE FOLLOWING PARAGRAPHS WHICH
APPLY TO CASE]
ACTUAL POSSESSION
A person is in actual possession of
a particular article or thing 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[9]
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 a thing, 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 a thing, possession is sole. If two or more persons share actual or
constructive knowing possession of an item, possession is joint.
[Choose the appropriate next paragraph
from the following three]
[If defendant does not stipulate to the
predicate offense(s), use the following paragraph]
The third element the State must prove
beyond a reasonable doubt is that defendant is a person who previously has been
convicted of the crime(s) of the __________degree. The term “convicted of the crime(s) of ...”
means a judgment of conviction entered by a court of competent jurisdiction in
this State, New Jersey, or elsewhere.[10]
[Read if appropriate: If defendant has been convicted in another state,
territory, commonwealth or other jurisdiction of the United States, or any
country in the world, in a court of competent jurisdiction, of a crime which in
said other jurisdiction or country is comparable to the crime(s) of
____________________, then defendant is subject to the provisions of this
statute.[11]]
[or]
[Where
defendant does stipulate to the predicate offense, use the following]
The third
element the State must prove beyond a reasonable doubt is that defendant is a
person who previously has been convicted of a crime named in the statute or [of
the predicate offense]. In this matter,
the parties have stipulated, or agreed, that defendant has previously been
convicted of such a crime [or a predicate offense]. You are instructed as follows with regard to
the stipulation that you should treat these facts as being undisputed, that is,
the parties agree that these facts are true.
As with all evidence, undisputed facts can be accepted or rejected by
the jury in reaching a verdict.
[or]
The third element the State
must prove beyond a reasonable doubt is that defendant is a person who has ever
been committed for a mental disorder to any hospital, mental institution or
sanitarium unless defendant possesses a certificate of a medical doctor or
psychiatrist licensed to practice in New Jersey or other satisfactory proof
that he/she
is no longer suffering from a mental disorder which interferes with or
handicaps him/her in the handling of a firearm.
[Charge in case
which is based upon defendant’s prior conviction]
Normally evidence [of defendant’s prior
conviction(s)] or [of the predicate offense(s)] is not permitted under our
rules of evidence. This is because our
rules specifically exclude evidence that a defendant has committed prior crimes
when it is offered only to show that he/she
has a disposition or tendency to do wrong and therefore must be guilty of the
present offense. However, our rules do permit evidence of prior crimes when the
evidence is used for some other purpose.[12]
In this case, the evidence has been
introduced for the specific purpose of establishing an element of the present
offense.[13] You may not use this evidence to decide that
defendant has a tendency to commit crimes or that he/she is a bad person.
That is, you may not decide that, just because the defendant has
committed [a] prior crime[s], he/she
must be guilty of the present crime[s].
The evidence produced by the State concerning [a] prior conviction[s] is
to be considered in determining whether the State has established its burden of
proof beyond a reasonable doubt.[14]
[Charge if applicable (where the same jury has already
convicted the defendant of another possessory weapons offense or
offenses – a bifurcated trial situation):[15]
On the issue of possession, although you may consider evidence
previously introduced, the State must prove beyond a reasonable doubt that
defendant possessed the [firearm] [weapon] before you may find the defendant
guilty on this charge. In deciding whether the State has carried its burden of
proof, you must set aside your previous verdict on this question and begin your
deliberations anew.[16]]
[Charge in all cases]
In summary,
the State must prove three elements beyond a reasonable doubt - first, that
exhibit _________is a weapon (or that there was a weapon); second, that
defendant knowingly purchased, owned, possessed or controlled the weapon on
__________ [the date alleged in the indictment]; and third, [choose the
appropriate phrase:] that defendant is a person who previously has been
convicted of [a crime of the_______ degree] OR [a crime named in
the statute] OR [of the predicate offense].
[or]
that defendant is a person who previously
has been committed for a mental disorder to any hospital, mental institution or
sanitarium and does not possess a certificate of a medical doctor or
psychiatrist licensed to practice in New Jersey or other satisfactory proof
that he/she is no longer suffering from a mental disorder which interferes with or handicaps him/her
in the handling of a firearm.
If you find
that the State has proven beyond a reasonable doubt each of these elements,
then you must find the defendant 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 find the defendant not
guilty.
[1] This charge should be used when the
indictment charges a fourth degree crime involving the possession of a
prohibited weapon under N.J.S.A. 2C:39-7a.
[2] See State v. Ragland, 105 N.J.
189, 195 (1986).
[3] The crimes set forth in the statute are
aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping,
robbery, aggravated sexual assault, sexual assault, bias intimidation in
violation of N.J.S.A. 2C:16-1, endangering the welfare of a child
pursuant to N.J.S.A. 2C:24-4, whether or not armed with or having
in his/her possession a weapon enumerated in subsection r. of N.J.S.A.
2C:39-1, possession of a prohibited weapon, N.J.S.A. 2C:39-3, possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, or manufacturing,
transporting, disposition or defacement of weapons, dangerous instruments and
appliances, N.J.S.A. 2C:39-9, or any person convicted of other than a
disorderly persons or petty disorderly persons offense for the unlawful use,
possession or sale of a controlled dangerous substance as defined in N.J.S.A.
2C:35-2. Unless the defendant
stipulates, see note 4, infra, the prior crimes should be
sanitized. See State v. Brown,
180 N.J. 572, 585 (2004). Thus, the trial court should refer to them as
crime(s) of the appropriate degree. For
example, if the offense were aggravated sexual assault, the court would
indicate that defendant previously was convicted of a crime of the first
degree. Nothing prevents a defendant,
however, from choosing to inform the jury of the name of the prior crime of
which he/she was convicted.
[4] See State v. Brown, 180 N.J.
572, 585 (2004) (if defendant stipulates to the offense, the jury must be
instructed only that defendant was convicted of a predicate offense. If defendant does not stipulate, then the
trial court should sanitize the offense or offenses and limit the evidence to
the date of the judgment). See also
State v. Alvarez, 318 N.J. Super. 137, 150-54 (App. Div. 1999)
(defendant’s offer to stipulate that his or her prior convictions meet the
status element of N.J.S.A. 2C:39-7 must be granted). Accord State v. Harvey, 318 N.J.
Super. 167, 173 (App. Div. 1999).
[5] N.J.S.A. 2C:39-1r. See remainder of N.J.S.A. 2C:39-1r for more detailed definition of the
term “weapon.”
[6] State
v. Jones, 198 N.J. Super. 553, 564-65 (App. Div. 1985).
[7] N.J.S.A. 2C:2-2C(3) applies the
culpable state of mind of knowingly pursuant to N.J.S.A. 2C:2-2b(2) to
this statutory crime.
[8] N.J.S.A. 2C:2-1. Additionally, charge
any applicable and appropriate statutory inferences. For example, see N.J.S.A.
2C:39-2 which creates certain statutory inferences when a weapon if found in a
motor vehicle. See also, N.J.R.E.
303.
[9] In State v. Spivey, 179 N.J. 229
(2004), the Supreme Court affirmed a conviction under N.J.S.A.
2C:39-4.1(a), possession of a firearm while committing certain drug offenses,
and noted that the statute suggested a temporal and spatial link between
possession of the firearm and the drugs. The Court ruled that the evidence
“must permit the jury to infer that the firearm was accessible for use in the
commission of the [drug] crime.” In the
appropriate case, the possession charge may be supplemented by this language.
[10] The judgment of conviction should be
redacted to show only the degree of the offense for which defendant previously
was convicted unless the defendant requests that the un-redacted judgment of
conviction be entered into evidence.
[11] N.J.S.A. 2C:39-7c.
[12] See State v. Marrero, 148 N.J.
469, 495-96 (1997); State v. Cusick, 219 N.J. Super. 452, 466-67
(App. Div. 1987) (cited in State v. Oliver, 133 N.J. 141, 158
(1993)).
[13] If defendant testifies, this portion of the
charge should be altered.
[14] State v. Brown, 180 N.J. at
583 (absence of information about all of the elements of the crime might cause
the jury to question the criminality of the defendant’s conduct, and in turn
influence the jury when it considers the possession element.)
[15] The defendant may affirmatively request that
this charge not be given. Alvarez, 318 N.J. Super. at 155.
[16] Alvarez, 318 N.J. Super. at
154-55.
