POSSESSION
(N.J.S.A. 2C:2-1) model jury charge
To “possess” 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 an
item such as (
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 ).
[WHERE APPLICABLE, charge: Possession cannot merely be a passing control,
fleeting or uncertain in its nature.]
In other words, to “possess” an item, one must knowingly procure or
receive an item 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.
The
State must prove beyond a reasonable doubt that a possessor acted knowingly in
possessing the item. 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 the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he/she
is aware that it is practically certain that the 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 particular
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.
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 THOSE FOLLOWING PARAGRAPHS
AS APPLY TO YOUR CASE]
ACTUAL POSSESSION
A person is in
actual possession of an item 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[1]
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 an item 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 an item, possession is sole. If two or more persons share actual or
constructive knowing possession of an item, possession is joint.
[1] In State
v. Spivey, 179 N.J. 229 (2004), the New Jersey Supreme Court
affirmed a conviction under N.J.S.A. 2C:39-4.1(a), Possession of a
Firearm While Committing Certain Drug Offenses.
There, the Court noted that the statute suggests a temporal and spatial
link between possession of the firearm and the drugs. The Court held: “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,
therefore, the possession charge may be supplemented by this language.
