(N.J.S.A.
2C:39-5e(3)) model jury charge
The law requires that the court instruct
the jury with respect to possible lesser included offenses, even if they are
not contained in the indictment. Just
because the court is instructing you concerning these offenses does not mean
that the court has any opinion one way or another about whether the defendant
committed these, or any, offenses. You
should consider these offenses along with those for which the defendant is indicted. However, you are not to render a verdict on
these offenses or answer the questions on the verdict sheet unless you find
that the State has failed to meet its burden with regard to the offenses in the
indictment.
The statute dealing with possession of an
imitation firearm states in relevant part:
Any person who knowingly has in his
possession any imitation firearm [choose appropriate] [in or upon any
part of the buildings or grounds of any school, college, university or other
educational institution] [while on any school bus] is guilty of an offense.
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 an imitation
firearm] [there was an imitation firearm];
2. That defendant knowingly possessed the
imitation firearm; and
3. That
defendant knowingly possessed the imitation firearm [choose appropriate] [in or
upon any part of the buildings or grounds of any school, college, university or
other educational institution] [while on a school bus] 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 an imitation firearm] [there was an imitation firearm]. An imitation firearm means an object or
device reasonably capable of being mistaken for a firearm.[2]
The
second element that the State must prove beyond a reasonable doubt is that
defendant knowingly possessed the imitation firearm. 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 an imitation firearm), and he/she
must know what it is that he/she
possesses or controls, in other words, that it is an imitation firearm.
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 imitation [choose appropriate] in or
upon any part of the buildings or grounds of any [school] [college]
[university] [other educational institution] [while on a school bus] without
the written authorization of the governing officer of the institution. I have already defined knowingly for you. [CHARGE IF APPROPRIATE] It is not a defense to the charge that
defendant possessed a valid permit to carry the firearm or a valid firearms
purchaser identification card.
[CHARGE
IN ALL CASES]
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.
