POSSESSION
OF FALSE GOVERNMENT DOCUMENTS
(N.J.S.A.
2C:21-2.1d)[1] model jury charge
Count (INSERT) of the indictment charges the defendant with possession of
false government documents. The statute
on which this count of the indictment is based reads in pertinent part:
A person who knowingly possesses a document
or other writing which falsely purports to be a driver’s license, birth
certificate or other document issued by a governmental agency and which could
be used as a means of verifying a person’s identity or age or any other
personal identifying information is guilty of a crime.
In this case, the State
alleges that the defendant (describe).
In
order for you to find the defendant guilty of this offense, the State must
prove each of the following elements of the crime beyond a reasonable doubt:
1. The
defendant knowingly possessed a (CHOOSE
APPROPRIATE: [document] [other writing]);
and
2. That
the document or other writing falsely purported to be a (CHOOSE APPROPRIATE: [driver’s license] [birth certificate] [other
document]) issued by a governmental
agency that could be used as a means of verifying a person’s identity or age or
any other personal identifying information.
The first element
that the State must prove beyond a reasonable doubt is that on (cite date set forth in indictment) the
defendant knowingly possessed a (CHOOSE
APPROPRIATE: [document] [other writing]).
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 the 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 inferences 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.
“Writing”
includes printing or [CHOOSE
APPROPRIATE: any other method of recording information, money, coins,
tokens, stamps, seals, credit cards, badges, trademarks, access devices, and
other symbols of value, right, privilege, or identification, including retail
sales receipts, universal product code (UPC) labels and checks.[2]]
The
State must also prove beyond a reasonable that the defendant possessed a
document or other writing.
[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
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.
The
second element that the State must prove beyond a reasonable doubt is that the (CHOOSE APPROPRIATE: [document] [other
writing]) was falsely purported to
be a (CHOOSE APPROPRIATE: [driver’s
license] [birth certificate] [other document]) issued by a governmental agency.
(CHOOSE APPROPRIATE: [The
State has offered evidence] [It has been stipulated]) that the (insert name of
governmental agency) is a governmental agency. The second element also requires that the
State prove beyond a reasonable doubt (or it has been stipulated) that the (CHOOSE APPROPRIATE: [document] [printed
form] [other writing]), purported to
be issued by a governmental agency, could be used as a means of verifying a
person’s identity or age or other personal identifying information.[3]
“Personal identifying information” means
any name, number or other information that may be used, alone or in conjunction
with any other information, to identify a specific individual and includes, but
is not limited to, the name, address, telephone number, date of birth, social
security number, official State issued identification number, employer or
taxpayer number, place of employment, employee identification number, demand
deposit account number, savings account number, credit card number, mother's
maiden name, unique biometric data, such as fingerprint, voice print, retina or
iris image or other unique physical representation, or unique electronic
identification number, address or routing code of the individual.[4]
If
the State has proven each of the elements of this crime beyond a reasonable
doubt, then you must find the defendant guilty of having knowingly possessed
false government documents. However, if
the State has failed to prove any element beyond a reasonable doubt, then you
must find the defendant not guilty.
[1] “A
violation of [N.J.S.A. 2C:28-7], constituting a disorderly persons
offense, section 1 of P.L.1979, c.264 (C.2C:33-15), R.S.33:1-81
or section 6 of the P.L.1968, c. 313 (C.33:1-81.7) in a case
where the person uses the personal identifying information of another to
illegally purchase an alcoholic beverage or for using the personal identifying
information of another to misrepresent his [or her] age for the purpose of
obtaining tobacco or other consumer product denied to persons under 18 years of
age shall not constitute an offense under this subsection if the actor received
only that benefit or service and did not perpetrate or attempt to perpetrate
any additional injury or fraud on another.”
N.J.S.A. 2C:21-2.1d.
[2] N.J.S.A.
2C:21-1a.
[3] It is not an offense under the statute if the
defendant is alleged to have committed the disorderly persons violation
codified at either N.J.S.A.
2C:28-7, or N.J.S.A. 2C:33-15, or N.J.S.A. 33:1-81.7, which apply
to the use of the personal identifying information of another to
illegally purchase an alcoholic beverage or for using the personal identifying
information of another to misrepresent his age for the purpose of obtaining
tobacco or other consumer product denied to persons under 18 years of age and
the actor received only that benefit or service and did not perpetrate or
attempt to perpetrate any additional injury or fraud on another. N.J.S.A.
2C:21-2.1(d).
If
there is evidence that is raised to support that defense, the jury should be
instructed that the State bears the burden to disprove beyond a reasonable
doubt the elements of that defense and its applicability. See N.J.S.A.
2C:1-13(b).
[4] N.J.S.A.
2C:20-1v.
