POSSESSION OF CERTAIN WEAPONS
(N.J.S.A. 2C:39-3e) model jury charge
Count
_____ of the indictment charges defendant with the offense of possession of a (weapon
specified in charge). In pertinent
part, the indictment alleges that:
[READ COUNT OF INDICTMENT,
OMITTING “without any explainable Lawful purpose” language, IF ANY[1]]
The statute that defendant is
accused of violating states that: “[a]ny person who knowingly has in his
possession any gravity knife, switchblade knife, dagger, dirk, stiletto, billy,
blackjack, metal knuckle, sandclub, slingshot, cestus or similar leather band
studded with metal filings or razor blades imbedded in wood, ballistic knife .
. . is guilty of a crime[.]”[2]
In order to convict defendant of
this offense, you must be satisfied that the State has proved beyond a
reasonable doubt both of the following two elements:
1.
That (Exhibit S-____) (the object in question) is/was a
(specified weapon);
and
2. That defendant knowingly possessed (Exhibit
S-____) (the object in question).
The first element that the State
must prove beyond a reasonable doubt is that (Exhibit S-____) (the object in
question) is a (weapon specified in the charge).[3]
The
second element that the State must prove beyond a reasonable doubt is that
defendant knowingly possessed (Exhibit S-____) (the object in question) at the
time and place alleged. Here,
the State alleges (set forth allegations).
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.
Thus,
the person must know or be aware that he/she possessed the item, here a (specified
weapon). The State was not required to
prove that, at the time that he/she knowingly possessed the (specified
weapon), defendant also knew that it was a prohibited weapon.[4]
Defendant’s 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. The law recognizes two kinds of possession: actual possession and constructive 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 means possession in which the person does not physically have the
property, but he/she
is aware of the presence of the property and is able to and has the intention
to exercise control over it.
A
person who, although not in actual possession, has knowledge of its character,
knowingly has both the power and the intention at a given time to exercise
control over a thing, either directly or through another person or persons, is
then in constructive possession of it.
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.[5]
[CHARGE IF AFFIRMATIVE DEFENSE OF
“EXPLAINABLE
LAWFUL PURPOSE” IS RAISED][6]
During this trial, evidence has been
presented that would show that defendant may have had an explainable lawful
purpose for his/her
possession of (Exhibit S-___) (the weapon). Defendant maintains that [insert
explainable lawful purpose asserted by defendant] and has proffered [insert
testimony/evidence offered in support of that explanation]. It is for you the jurors to consider and
weigh this evidence.
The burden of disproving or negating
the explanation lies with the State. In order
to find defendant guilty, the State must prove beyond a reasonable doubt that
defendant’s possession of (Exhibit S-___) (the weapon) was without any
explainable lawful purpose.[7] If the State has proved beyond a reasonable
doubt that defendant’s possession of (Exhibit S-___) (the weapon) was without any explainable lawful purpose,
you must return a verdict of guilty. On
the other hand, if you find that the State has failed to prove this beyond a
reasonable doubt, you must return a verdict of not guilty.
[RESUME CHARGE IN
ALL CASES:]
To sum up, if the State has proven
both elements of this crime beyond a reasonable doubt, [CHARGE IF APPROPRIATE:] [and has further proven beyond a
reasonable doubt that defendant’s possession of (Exhibit S-___) (the weapon) was without any explainable lawful purpose,]
then you must find defendant guilty of possession of a prohibited weapon. On the other hand, if the State has failed to
prove either element beyond a reasonable doubt, [CHARGE IF APPROPRIATE:] [or has failed to disprove the defense of
explainable lawful purpose,] you must find him/her not guilty.
[1] See
generally, State v. Lee, 96 N.J. 156 (1984); State v.
Blaine, 221 N.J. Super. 66 (App. Div. 1987) in which affirmative
defense of explainable lawful purpose has been applied.
[2] The
list of weapons specified in the text of N.J.S.A. 2C:39-3e (gravity
knife, switchblade knife, dagger, etc.) is complete. Possession of a different type of knife or
weapon even if dangerous or used unlawfully is not an offense under N.J.S.A.
2C:39-3e [but might be violative of other statutory provisions such as N.J.S.A.
2C:39-4d (possession of a weapon for an unlawful purpose) or N.J.S.A.
2C:39-5d (unlawful possession of a weapon).]
[3] The
weapons statute provides specific definitions for three of the weapons
mentioned in N.J.S.A. 2C:39-3e. See
N.J.S.A. 2C:39-1h for “gravity knife,” N.J.S.A. 2C:39-1p for
“switchblade knife,” and N.J.S.A. 2C:39-1u for “ballistic knife.” A standard dictionary definition should be
used for instructional purposes whenever an indictment alleges possession of
another type of weapon (dagger, dirk, stiletto, etc.) prohibited by N.J.S.A.
2C:39-3e.
[4] State
v. Smith, 197 N.J. 325, 338
(2009).
[5] If the
weapon was found in a vehicle, the jury should be instructed on the permissive
inference of possession allowed by N.J.S.A. 2C:39-2a. See State v. Bolton, 230 N.J.
Super. 476, 480-81 (App. Div. 1989) (construing the statutory presumption
in N.J.S.A. 2C:39-2a to permit only an inference for the jury's
consideration). See also N.J.R.E.
303 (“presumptions against the accused in criminal cases”).
[6] See
generally, State v. Lee, 96 N.J. 156 (1984); State v.
Blaine, 221 N.J. Super. 66 (App. Div. 1987).
[7] The
prohibited weapons statute expressly exempts military personnel and law
enforcement officers from the proscriptions of N.J.S.A. 2C:39-3e if
possession of the prohibited weapon is authorized under law, regulations or
military/law enforcement orders. See N.J.S.A. 2C:39-3g. The confiscation, seizure or other possession
of a prohibited weapon by a law enforcement officer acting on his/her duty is
also exempted, provided that the officer promptly notifies a superior of his
possession of the prohibited weapon.
An additional
exemption applies to the possession of a nightstick by a guard in the employ of
a private security company, provided that (1) the guard possessed the
nightstick when in the actual performance of his official duties; (2) the guard
is licensed to carry a firearm; and (3) the guard has satisfactorily completed
a training course in the use of a nightstick approved by the Police Training
Commission. See N.J.S.A. 2C:39-3i. In matters where any of the above exemptions
are asserted by the defense, instructions on these provisions, as applicable,
should be given to the jury.
