POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f) model jury charge
Defendant(s),
_______________________, is/are charged in count _______ with unlawful
possession of an assault firearm. The
pertinent language of the statute reads as follows:
Any person who knowingly has in his possession an
assault firearm is guilty of a crime...except if the assault firearm is
licensed..., registered..., or rendered inoperable.
The
crime with which the defendant in this case is charged contains three essential
elements, all of which the State must prove beyond a reasonable doubt. They are:
1.
S__________ is an assault firearm or (there was an assault firearm);(choose appropriate)
2. The defendant knowingly possessed the assault
firearm; and
3. The assault firearm was not licensed,
registered, or rendered inoperable.
A
“firearm” is defined as any handgun, 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 projectile 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....[1]
An assault firearm includes the
following firearms[2] [Select
appropriate: (1) Algimec AGM1 type; (2) Any shotgun with a revolving
cylinder such as the "Street Sweeper" or "Striker 12"; (3)
Armalite AR-180 type; (4) Australian Automatic Arms SAR; (5) Avtomat
Kalashnikov type semi-automatic firearms; (6) Beretta AR-70 and BM59
semi-automatic firearms; (7) Bushmaster Assault Rifle; (8) Calico M-900 Assault
carbine and M-900; (9) CETME G3; (10) Chartered Industries of Singapore SR-88
type; (11) Colt AR-15 and CAR-15 series; (12) Daewoo K-1, K-2, Max 1 and Max 2,
AR 100 types; (13) Demro TAC-1 carbine type; (14) Encom MP-9 and MP-45 carbine
types; (15) FAMAS MAS223 types; (16) FN-FAL, FN-LAR, or FN-FNC type
semi-automatic firearms; (17) Franchi SPAS 12 and LAW 12 shotguns; (18) G3SA
type; (19) Galil type Heckler and Koch HK91, HK93, HK94, MP5, PSG-1; (20)
Intratec TEC 9 and 22 semi-automatic firearms; (21) M1 carbine type; (22) M14S
type; (23) MAC 10, MAC 11, MAC 11-9mm carbine type firearms; (24) PJK M-68
carbine type; (25) Plainfield Machine Company Carbine; (26) Ruger K-Mini-1 4/5F
and Mini-1 4/5RF; (27) SIG AMT, SIG 550SP, SIG 551SP, SIG PE-57 types; (28) SKS
with detachable magazine type; (29) Spectre Auto carbine type; (30) Springfield
Armory BM59 and SAR-48 type; (31) Sterling MK-6, MK-7 and SAR types; (32) Steyr
A.U.G. semi-automatic firearms; (33) USAS 12 semi-automatic type shotgun; (34)
Uzi type semi-automatic firearms; (35) Valmet M62, M71S, M76, or M78 type
semi-automatic firearms; or (36) Weaver Arm Nighthawk].
(Charge if applicable)
A is designated as an assault firearm.
(Charge
if applicable) Any firearm
manufactured under any designation which is substantially identical to any of
the firearms listed in the statute is also an assault firearm. In this case, the State alleges that S_________
is substantially identical to _______________ which is designated in the
statute.[3]
(Charge
if appropriate: On the other hand, the defendant maintains ______________).
(Include
any of the three following definitions of assault firearm if material to the
case)
The term “substantial” means
pertaining to the substance, matter, material or essence of a thing. The term “identical” means exactly the
same. Hence, a firearm is substantially identical
to another only if it is identical in all material, essential respects. A firearm is not substantially identical to a
listed assault firearm unless it is identical except for differences which do
not alter the essential nature of the firearm.[4]
The following are examples of
manufacturer changes that do not alter the essential nature of the firearm:
name or designation of the firearm; the color of the firearm; the material used
to make the barrel or stock of the firearm; the material used to make a pistol
grip; a modification of a pistol grip.
This is not an exclusive list.
A semi-automatic firearm should be
considered to be “substantially identical,” that is, identical in all material
respects, to a named assault weapon if it meets the below listed criteria:
(Semi-automatic shotgun: Charge if applicable)
An
assault firearm also means a semi-automatic shotgun with either a magazine
capacity exceeding six rounds, a pistol grip, or a folding stock.[5]
“Semi-automatic” means a firearm which fire a single projectile for each
single pull of the trigger and is self-reloading or automatically chambers a
round, cartridge, or bullet.[6]
A “pistol grip” means a well-defined handle, similar to that found on a
handgun, that protrudes conspicuously beneath the action of the weapon, and
which permits the shotgun to be held and fired with one hand.[7]
It
includes a semi-automatic shotgun that has at least 2 of the following:
1. A folding or telescoping stock;
2. A pistol grip that protrudes
conspicuously beneath the action of the weapon;
3. A fixed magazine capacity in excess
of 5 rounds; and
4. An ability to accept a detachable
magazine.
(Semi-automatic rifle: Charge if applicable)
An
assault firearm also means a semi-automatic rifle with a fixed magazine
capacity exceeding 15 rounds.[8]
“Semi-automatic” mean a firearm which fires a single projectile for each
single pull of the trigger and is self-reloading or automatically chambers a
round, cartridge, or bullet.[9]
It
includes a semi-automatic rifle that has the ability to accept a detachable
magazine and has at least 2 of the following:
1. a folding or telescoping stock;
2. a pistol grip that protrudes
conspicuously beneath the action of the weapon;
3. a
bayonet mount;
4. a flash suppressor or threaded
barrel designed to accommodate a flash suppressor;
and
5. a grenade launcher.
(Semi-automatic pistol: Charge if applicable)
A semi-automatic pistol that has an
ability to accept a detachable magazine and has at least 2 of the following:
1. An ammunition magazine that attaches
to the pistol outside of the pistol grip;
2.
A threaded barrel
capable of accepting a barrel extender, flash suppressor, forward handgrip, or
silencer;
3.
A shroud that is
attached to, or partially or completely encircles, the barrel and that permits
the shooter to hold the firearm with the nontrigger hand without being burned;
4. Manufactured weight of 50 ounces or
more when the pistol is unloaded; and
5. A semi-automatic version of an
automatic firearm.
An
assault firearm also means a part or combination of parts designed or intended
to convert a firearm into an assault firearm, or any combination of parts from
which an assault firearm may be readily assembled if those parts are in the
possession or under the control of the same person.[10]
The
second element that the State must prove beyond a reasonable doubt is that the
defendant knowingly possessed the assault firearm.
KNOWINGLY
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 circumstance 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. “Knowingly,” “with knowledge” or
equivalent terms have the same meaning.
A person acts knowingly with respect to his/her conduct if he/she is aware that his/her conduct is of that nature. You must determine whether the defendant was
aware of the nature of his/her conduct in this case. Since knowledge is a state of mind and cannot
be seen and can only be determined by inference from conduct, words or acts, it
can rarely be proved directly.
Therefore, it is not necessary that witnesses be produced by the State
to testify that a defendant said he/she knowingly did
something. His/Her knowledge may be gathered from his/her acts and his/her conduct, and from all the
surrounding circumstances reflected in the evidence you have heard and seen in
this case. That is, you must be
convinced beyond a reasonable doubt that the defendant in this case was aware
that he/she had S________in his/her possession.
POSSESSION[11]
The
word “possess” as used in criminal statutes signifies 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
S______, and the person must know what it is that he/she possess or controls, in this case,
that it is a firearm. The State need not
prove that defendant knew it was an assault firearm.[12]
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 control if he/she chose to do so.
A
person may possess S________ even though it was not physically on his/her person at the time of the arrest, if
the person had in fact, at some time prior to his/her arrest, had control over it.
When
we speak of possession, we mean a conscious, knowing possession. The law recognizes two kinds of possession:
they are actual possession and constructive possession.
[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, the
person has knowledge of its character and knowingly has it on his/her person at a given time.
CONSTRUCTIVE
POSSESSION
The
law recognizes that possession may be constructive instead of actual. 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
The
law recognizes that 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 possession of a thing, possession is joint; that is, if they
knowingly share control over the article.
The
third element that the State must prove beyond a reasonable doubt is that the
assault firearm was not licensed, registered or rendered inoperable.[13]
[Charge appropriate section]
An assault firearm is “licensed” when
the possessor obtains a valid license to possess and carry the assault firearm.[14]
An
assault firearm is “registered” when the owner of an assault firearm purchased
on or before May 1, 1990 properly registered the assault firearm as one that is
legitimate for target shooting purposes before May 30, 1991.[15]
An
assault firearm is “rendered inoperable” when:
1. The firearm is
altered in such a manner that it cannot be immediately fired;
2. The owner or possessor of the firearm does
not possess or have control over
the parts necessary to make the firearm
operable; and
3. The owner of the firearm filed a valid
certification prior to May 30, 1991
If the defendant alleges that the
assault firearm was lawfully possessed and/or rendered inoperable during the
time frame of August 8, 2013 to February 5, 2014, the State must disprove
that defense beyond a reasonable doubt.[17]
[Resume Main Charge]
If you find that the defendant
knowingly possessed the assault firearm, and that there is no evidence that the
defendant had a valid license to possess and carry such a firearm or that the
defendant legally registered it or rendered it inoperable by filing a valid
certification of inoperability, then you may infer, if you think it appropriate
to do so based upon the facts presented, that defendant had no such license and
that the defendant did not legally register the firearm or render it
inoperable.[18]
Note, however, that as with all other elements, the State bears the
burden of showing, beyond a reasonable doubt, the lack of a valid license and
registration and that the firearm was not rendered inoperable. You may apply the inference only if you feel
it appropriate to do so under all the facts and circumstances.
If
you have found that the State has proven each of the elements beyond a
reasonable doubt, then you must find the defendant guilty.
If
you have found that the State has failed to prove any of the elements beyond a
reasonable doubt, then you must find the defendant not guilty.
[1] N.J.S.A.
2C:39-1(f).
[2] N.J.S.A.
2C:39-1w(1).
[3] N.J.S.A.
2C:39-1w(2).
[4] Attorney
General Guidelines Regarding the “Substantially Identical” Provision in the
State’s Assault Firearm Laws (Aug. 1996); Coalition of New Jersey Sportsmen,
Inc. v. Whitman, 44 F. Supp. 2d 666 D.N.J. (1999), aff 'd 263 F. 3d 157 (3d Cir.
2001).
[5] N.J.S.A.
2C:39-1w(3).
[6] N.J.S.A.
2C:39-1x.
[12] See State
v. Pelleteri, 294 N.J. Super. 330, 333-34 (App. Div. 1996), where
the Court held “that knowledge of the character of the weapon is not an element
of the offense...the Legislature intended to proscribe knowing possession, as
distinguished from knowledge of the illegal character of the article
possessed...In that context, ‘[k]nowing possession is not to be confused with
criminal intent or guilty knowledge.’” The trial judge in response to a
question arising out of deliberations charged the jury “that defendant could be
found guilty if he knowingly possessed the firearm (a semi-automatic rifle with
a magazine capacity of seventeen cartridges) but was unaware that its fixed
capacity exceeded fifteen rounds.” The case also involved the defenses of
mistake of law and mistake of fact which were precluded by the trial judge. The Appellate Court found no error with the
rulings of the trial court and affirmed the conviction.
[13] There is
no burden on the State to prove operability of the assault firearm. State v. Elrose, 277 N.J. Super.
548, 557 (App. Div. 1994).
