POSSESSION
OF FIREARM WHILE COMMITTING CERTAIN
DRUG
CRIMES
(N.J.S.A.
2C:39-4.1a) model jury charge
[Defendant] is charged with possessing a
firearm while in the course of committing, attempting to commit, or conspiring
to commit a violation of certain laws.[1] This charge is based on a statute which
reads:
Any person who has in his possession any firearm while in
the course of committing, attempting to commit, or conspiring to commit a
violation of [certain drug crimes] is guilty of a crime ...
For you to find [defendant] guilty of
this charge, the State must prove beyond a reasonable doubt the following
elements:[2]
1. That
there was a firearm.
2. That
[defendant] possessed the firearm.
3. That, at the time alleged in the
indictment, [defendant] was in the course of committing, attempting to commit,
or conspiring to commit, [the specific drug offense charged].
The first element that the State must
prove beyond a reasonable doubt is that there was a firearm. A 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.
The second
element that the State must prove beyond a reasonable doubt is that [defendant]
possessed the firearm. The word possess
as used in criminal statutes signifies a knowing, intentional control of a
designated thing, accompanied by a knowledge of its character. Therefore, [defendant] must have known or have
been aware that he/she possessed the firearm, and he/she must have known that what he/she possessed was a firearm. The possession cannot merely be a passing
control, fleeting or uncertain in its nature.
So, to possess within the meaning of the law, [defendant] must have
knowingly procured or received the firearm or must have been aware of his/her control of it for a sufficient
period of time to have been able to relinquish control if he/she chose to do so. 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 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.
Possession means a conscious, knowing
possession. Someone may possess an
object even though it was not physically on his/her person at the time if he/she had in fact at some time prior to his/her arrest control over it.
Possession may be either actual or
constructive. A person is in actual
possession of an item if 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. Alternatively, possession may be
constructive, instead of actual.
Constructive possession is possession in which the person does not
physically have the property, but although the property is not physically on his/her person, he/she is aware of the presence of the
property and is able to and has the intention to exercise control over it. So, a person who, although not in actual
possession, has knowledge of its character, and 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.
Similarly, possession can be either
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 over a thing, they possess the thing jointly if they
knowingly share control over it.
[If possession is in a motor vehicle:
charge Model Jury Charge on Possession of Weapon, etc., in Motor Vehicle, per N.J.S.A.
2C:39-2].
“Knowingly” refers to a condition of
the mind. It cannot be seen. Often, it can be determined only by
inferences drawn from a defendant’s conduct, words or acts as presented in the
evidence you have heard and seen. So, it
is not necessary that the State produce a witness or witnesses to testify that
an accused said, for example, that he acted purposely when he/she engaged in the conduct with which he/she is charged. You may find that proof of “knowingly” has
been furnished beyond a reasonable doubt by inferences which you may draw from
the nature of the acts and the circumstances surrounding the conduct under
investigation as you have heard from the evidence.
The third element that the State must
prove beyond a reasonable doubt is that [defendant] possessed the firearm while
he/she was in the course of committing, attempting to commit, or
conspiring to commit the crime of .
The term “in the course of committing”
means that, at the time [defendant] possessed the weapon, he/she was also committing a drug crime, namely .
The term “attempting to commit” means
that, at the time [defendant] possessed the weapon, he/she was also purposely engaged in conduct which would
constitute [the stated drug crime] , if the attendant circumstances were as a
reasonable person would believe them to be; or doing anything with the purpose
of causing the result which is a specific element of [the stated drug crime] ,
or purposely doing anything which, under the circumstances as a reasonable
person would believe them to be, is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commission
of that crime.[3]
The term “conspiring to commit” means
that, at the time [defendant] possessed the weapon, he/she
also had the purpose of promoting or facilitating the commission of [the stated
drug crime] and either (1) agreed with another person or
persons that they or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to commit such crime, or
(2) agreed to aid another person or persons in the planning or commission of
such crime or of an attempt or solicitation to commit such crime.[4]
If the State has proven each of the
elements of this offense beyond a reasonable doubt, [defendant] must be found
guilty of this charge. However, if the
State has failed to prove, beyond a reasonable doubt, any one of the elements
of this offense, you must find him/her
not guilty of this charge.
[1] The citations contained within N.J.S.A. 2C:39-4.1
are: N.J.S.A. 2C:35-3; N.J.S.A. 2C:35-4; N.J.S.A. 2C:35-5,
N.J.S.A. 2C:35-5.2; N.J.S.A.
2C:35-5.3; N.J.S.A. 2C:35-6, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-7.1; or N.J.S.A. 2C:35-11.
[2] In State v. Harrison, 358 N.J. Super. 578,
584 (App. Div. 2003), the court held that, so long as defendant had
constructive possession of a weapon, a conviction under this statute will
stand, even though physical proximity between defendant and the drugs and
weapon was lacking. Certification of this matter was granted by the Supreme
Court, sub nom State v.
Spivey, 177 N.J. 495 (2003).
[3] See Model Jury Charge, Attempt and N.J.S.A.
2C:5-1(a).
[4] See Model Jury Charge, Conspiracy and N.J.S.A.
2C:5-2(a).