[N.J.S.A. 2C:39-7b(1)][2] 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.[3]
[CHARGE IN ALL CASES]
Count___________ of the indictment
charges defendant with violating a statute, which reads as follows:
Any
person having been convicted in this State or elsewhere of [certain enumerated
offenses[4]]
OR [a predicate offense][5]
who purchases, owns,
possesses
or controls a firearm 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 firearm [or that there was a firearm].
2.
Defendant
purchased, owned, possessed or controlled the firearm [on the
date alleged in the indictment].
3.
Defendant
is a person who previously has been convicted of [a crime of
the ______degree] OR [a
predicate offense].
The first element the State must prove beyond
a reasonable doubt is that exhibit_______is a firearm [or that there was a
firearm]. A “firearm” means any handgun,[6]
rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun,
device or instrument in the nature of a weapon from which may be fired or
ejected any solid projectable ball, slug, pellet, missile or bullet, or any
gas, vapor or other noxious thing, by means of a cartridge or shell or by the
action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation,
any firearm which is in the nature of an air gun, spring gun or pistol or other
weapon of a similar nature in which the propelling force is a spring, elastic
band, carbon dioxide, compressed or other gas or vapor, air or compressed air,
or is ignited by compressed air, and ejecting a bullet or missile smaller than
three-eights of an inch in diameter, with sufficient force to injure a person.
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.
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 followed 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.
[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] 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 firearm
(or that there was a firearm); second, that defendant knowingly purchased,
owned, possessed or controlled the firearm 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].
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] This charge may not be
appropriate where the prior conviction was for domestic violence.
[3] See State v. Ragland, 105 N.J.
189, 195 (1986).
[4] 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, or endangering the
welfare of a child pursuant to N.J.S.A. 2C:24-4, stalking in violation
of N.J.S.A. 2C:12-10 or a crime involving domestic violence as defined
in N.J.S.A. 2C:25-19, 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. Additionally, the following crimes are
included: N.J.S.A. 2C:35-3 through N.J.S.A. 2C:35-6 inclusive; N.J.S.A.
2C:35-7; N.J.S.A. 2C:35-11; N.J.S.A. 2C:39-3; N.J.S.A.
2C:39-4; or N.J.S.A. 2C:39-9.
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.
[5] See State v. Brown, 180 N.J.
at 585 (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).
[6] Handgun means any pistol, revolver or other
firearm originally designed or manufactured to be fired by the use of a single
hand. N.J.S.A. 2C:39-1k. The handgun need not be presently
operable. State v. Gantt, 101 N.J.
573 (1986).
[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 is found in a motor vehicle. See also, N.J.R.E. 303.
[9] In State v. Spivey, N.J.
(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.