POSSESSION OF PROHIBITED WEAPONS AND DEVICES
(Dum-dum, hollow nose bullets or body armor
penetrating bullets)[1]
(N.J.S.A.
2C:39-3f) model jury charge
Count
of the indictment charges the defendant as
follows:
(Read Indictment)
The
pertinent part of the statute on which this indictment is based reads as
follows:
Except as authorized by statute, it shall be unlawful
for any person knowingly to possess any (hollow nose or dum-dum bullet) [or]
(body armor breaching or penetrating ammunition).
The
statute, read together with the indictment, identifies the elements which the
State must prove beyond a reasonable doubt to establish guilt of the defendant
on this (count of the) indictment. They
are as follows:
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 hollow nose or dum-dum bullet)[or](body armor breaching or penetrating
ammunition).
2. That defendant knowingly possessed Exhibit S-____ (the
alleged ammunition).
(CHARGE AS APPLICABLE)
In regard to the first element that
the State must prove beyond a reasonable doubt, a “hollow nose bullet or
dum-dum bullet” can be a cartridge of any caliber in which the front portion of
the projectile is designed to expand upon entering a target. The jacket metal does not cover the entire
bullet and an area near the nose is left uncovered. There is a pit or hollow present in the front
of the nose.[2]
[or]
In regard to the first element that
the State must prove beyond a reasonable doubt, body armor penetrating bullets
means (a) ammunition primarily designed for use in a handgun, and (b) which is
comprised of a bullet whose core or jacket, if the jacket is thicker than .025
of an inch, is made of tungsten carbide, or hard bronze, or other material
which is harder than a rating of 72 or greater on the Rockwell B. Hardness
Scale, and (c) is therefore capable of breaching or penetrating body
armor. Body armor is bullet-resistant
material intended to provide ballistic and trauma protection.[3]
(RESUME MAIN CHARGE)
The second element that the State
must prove beyond a reasonable doubt is that the defendant knowingly possessed
S in
evidence.[4] The word “possess” as used in criminal
statutes signifies a knowing, intentional control of a designated thing,
accompanied by a knowledge of its character.
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,
[defendant] must know or be aware that he/she possessed the item, here the items
alleged to be ammunition. The State [is]
not required to prove that, at the time that he/she knowingly possessed the ammunition,
defendant also knew that it was (hollow
nose or dum-dum bullet(s))[or](body armor breaching or penetrating
ammunition).[5]
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.
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.
To
reiterate, the two elements of this offense are that:
1. S in evidence is (a hollow nose or dum-dum bullet)[or](body armor breaching or penetrating
ammunition).
2. The defendant knowingly possessed S
in evidence.
If you find that the State
had proven all these elements beyond a reasonable doubt, then you must return a
verdict of guilty. On the other hand, if
you find that the State has failed to prove any of these elements beyond a
reasonable doubt, then you must return a verdict of not guilty.
[1] The
statute contains certain exemptions including: (1) a law enforcement officer or
persons engaged in activities pursuant to subsection f. of N.J.S.A.
2C:39-6 who has in his possession any hollow nose or dum-dum bullet; or (2) a collector of firearms or ammunition as
curios or relics as defined in Title 18, United States Code, section
921(a)(13), and who has in his possession a valid Collector of Curios and
Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who
possesses body armor breaching or penetrating ammunition. A collector may possess not more than three
examples of each distinctive variation of body armor breaching or penetrating
ammunition. There are also exemptions found in N.J.S.A. 2C:39-3(g)(1),
(g)(2), and (g)(3). If those defenses
are raised, the jury should be instructed that the State bears the burden to
disprove beyond a reasonable doubt the existence of any statutory exemption.
[2] People
v. Lanham, 230 Cal. App. 3d 1396, 1399, 282 Cal. Rptr.
62 (Cal. Ct. of Appeal 1991) for expert testimony on the definition of hollow
nose bullets.
[3] N.J.S.A. 2C:39-13.
[4] If in a motor vehicle, see N.J.S.A.
2C:39-2. Use “inference” instead of
“presumption”. State v. Ingram,
98 N.J. 489 (1985); State v. Bolton, 230 N.J. Super. 476,
480 (App. Div. 1989). Comment 2 N.J.R.E.
301 and 303.
[5] State
v. Smith, 197 N.J. 325, 338 (2009).
