POSSESSION OF A DEFACED FIREARM[1]
(N.J.S.A. 2C:39-3d) model jury charge
Count
_____ of the indictment charges defendant with possession of a defaced firearm.
[READ COUNT OF INDICTMENT]
The pertinent part of the statute on
which the indictment is based states that: “[a]ny person who knowingly has in
his possession any firearm which has been defaced is guilty of a crime.”[2]
In order to convict defendant of
this offense, you must be satisfied that the State has proved each of the
following three elements beyond a reasonable doubt:
1. (That Exhibit S-____ is a firearm) (that
there was a firearm);
2. (That Exhibit S-____ is defaced) (that the
firearm was defaced); and
3. That defendant knowingly possessed (Exhibit
S-____) (the defaced firearm).
The
first element that the State must prove beyond a reasonable doubt is that (Exhibit
S- is) (there was) a firearm. The
term "firearm" means 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 projectable
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.[3] The State is not required to prove that (Exhibit
S-____) (the firearm) was operable, i.e., capable of firing a bullet or
other projectile, on (date of incident). The statute only requires that (Exhibit S-___)
(the firearm) be proven to be a firearm in terms of its original design.[4]
The second element that the State
must prove beyond a reasonable doubt is that (Exhibit S-___ is) (the firearm
was) defaced. The term “defaced” means
that the name of the maker, model designation, manufacturer's serial number or
any other distinguishing identification mark or number on the firearm has been
removed, defaced, covered, altered or destroyed.[5]
The third element that the State
must prove beyond a reasonable doubt is that defendant knowingly
possessed the defaced firearm 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
firearm. The State was not required to
prove that, at the time that he/she knowingly possessed the firearm,
defendant also knew that it was defaced.[6]
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. [7]
If the State has proven each element
of this crime beyond a reasonable doubt, then you must find defendant guilty of
possession of a defaced firearm. On the
other hand, if the State has failed to prove any element beyond a reasonable
doubt, you must find him/her
not guilty.
[1] N.J.S.A.
2C:39-3d is now included in the Graves Act.
N.J.S.A. 2C:43-6c; L. 2007, c. 341, § 5 (effective
January 13, 2008).
[2] Note
that the statute exempts possession of an "antique firearm" or an
"antique handgun" that may be defaced. Where appropriate, the above instruction
should be expanded to include the definition of "antique firearm" [N.J.S.A.
2C:39-1a] and/or "antique handgun" [N.J.S.A. 2C:39-1aa]. Also exempted from the prohibition on
possession of a defaced firearm are military personnel acting under color of
law, regulation or military orders and law enforcement officers acting in the
performance of their duties. See N.J.S.A.
2C:39-3g.
[3] N.J.S.A.
2C:39-1f. The statutory definition also
encompasses air guns, spring guns and other firearms which discharge a bullet
or projectile smaller than three-eighths of an inch in diameter with force sufficient
to cause injury.
[4] See
State v. Gantt, 101 N.J. 573, 589-590 (1986); State v. Orlando,
269 N.J. Super. 116, 129 (App. Div. 1993), certif. denied, 136 N.J.
30 (1994). The only exception to this
rule is a firearm that has been so mutilated or destroyed that it cannot be
called a gun. State v. Gantt, supra,
101 N.J. at 589.
[5] N.J.S.A.
2C:39-1b.
[6] State
v. Smith, 197 N.J. 325, 338 (2009).
[7] 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”).
