CERTAIN WEAPONS IN EDUCATIONAL
INSTITUTION
(N.J.S.A.
2C:39-5e(2))[1] model jury charge
Count ______ of the indictment charges
defendant with possession of a weapon in an educational institution.
(Read count of indictment).
The statute upon which this count of the indictment is based states in
pertinent part:
Any person who knowingly has in his
possession [choose appropriate] a [gravity knife[2]]
[switchblade knife[3]]
[dagger] [dirk] [stiletto] [dangerous knives] [billy] [blackjack] [bludgeon]
[metal knuckles] [sandclub] [slingshot] [cesti] [leather band studded with
metal filings] [razor blades imbedded in wood] [stun gun[4]]
[any weapon or device which projects, releases or emits tear gas or any other
substances intended to produce temporary physical discomfort or permanent injury
through being vaporized or otherwise dispensed in the air] [firearm even though
not loaded or lacking a clip or other component to render them immediately
operable] [any components which can be readily assembled into a firearm] in or
upon any part of the buildings or grounds of any school, college, university or
other educational institution without the written
authorization of the governing officer of the institution is guilty of a
crime.
In order for you to find the defendant
guilty of this charge, the State must prove each of the following elements
beyond a reasonable doubt:
1. That [exhibit ___ is a (enumerate type of
weapon)] [there was a (enumerate type of weapon)];
2. That
defendant knowingly possessed the [enumerate type of weapon]; and
3. That defendant knowingly possessed the
[enumerate type of weapon] in or upon any part of the buildings or grounds of
any school, college, university or other educational institution without the
written authorization of the governing officer of the institution.
The
first element that the State must prove beyond a reasonable doubt is that
[exhibit ___ is a (enumerate type of weapon] [there was a enumerate type of weapon firearm]. A weapon includes [choose appropriate] a
[gravity knife] [switchblade knife] [dagger] [dirk] [stiletto] [dangerous
knives] [billy] [blackjack] [bludgeon] [metal knuckles] [sandclub] [slingshot]
[cesti] [leather band studded with metal filings] [razor blades imbedded in
wood] [stun gun] [any weapon or device which projects, releases or emits tear
gas or any other substances intended to produce temporary physical discomfort
or permanent injury through being vaporized or otherwise dispensed in the air]
[firearm even though not loaded or lacking a clip or other component to render
them immediately operable] [any components which can be readily assembled into
a firearm]. In this case the State
alleges that defendant was in possession of (enumerate type of weapon).
The
second element that the State must prove beyond a reasonable doubt is that
defendant knowingly possessed the weapon.
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/her conduct if he/she
is aware that it is practically certain that his/her 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
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.
The
word “possess” means 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 [enumerate type of weapon]), and he/she
must know what it is that he/she
possesses or controls, in other words, that it is [enumerate type of weapon].
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.
When
we speak of possession, we mean a conscious, knowing possession, either actual
or constructive.
[CHOOSE
APPROPRIATE]
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.
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
Constructive
possession means possession in which the possessor does not physically have the
item on his/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
third element that the State must prove beyond a reasonable doubt is that
defendant knowingly possessed the firearm in or upon any part of the buildings
or grounds of any [choose appropriate] [school] [college] [university]
[other educational institution] without the written authorization of the
governing officer of the institution. I
have already defined knowingly for you.
If you
find that the State has proven every element of the offense beyond a reasonable
doubt, then you must find defendant guilty.
If you find that the State has failed to prove any element of the
offense beyond a reasonable doubt, then you must find defendant not guilty.
[1] This portion of N.J.S.A. 2C:39-5e(2) refers to
specific weapons.
[2] Gravity knife means any knife which has a blade which is
released from the handle or sheath thereof by the force of gravity or the
application of centrifugal force. N.J.S.A. 2C:39-1h.
[3] Switchblade knife means any knife or similar device which
has a blade which opens automatically by hand pressure applied to a button,
spring, or other device in the handle of the knife. N.J.S.A. 2C:39-1p.
[4] Stun gun means any weapon or other device which emits an
electric charge or current intended to temporarily or permanently disable a
person. N.J.S.A. 2C:39-1t.