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HARK & HARK
New Jersey Criminal Lawyer
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Practicing in all NJ Counties
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New Jersey Weapons Charges
Revised 6/16/03
POSSESSION OF A FIREARM WITH A
PURPOSE TO USE IT UNLAWFULLY
AGAINST THE PERSON OR PROPERTY OF
ANOTHER
(N.J.S.A. 2C:39-4a)
The
count of the Indictment charges
the defendant,
,
with the crime of possession of a firearm with a purpose to use it
unlawfully against the person or property of another. The statute on
which this count of the Indictment is based reads in pertinent part:
“Any person who has in his possession
any firearm with a purpose to use it unlawfully against the person
or property of another is guilty of a crime."
In order for you to find
the defendant guilty of this charge, the State has the burden of
proving beyond a reasonable doubt each of the following four
elements of this crime:
1. Exhibit is a firearm. (or, there was a firearm)
2. Defendant possessed the firearm.
3. Defendant possessed the firearm with the purpose to use it
against the person or property of another.
4. Defendant's purpose was to use the firearm unlawfully.
The first element that
the State must prove beyond a reasonable doubt is that exhibit
is a firearm (or, 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. It shall also
include, without limitation, any firearm which is in the nature of
an air gun, spring gun or pistol or other weapon of a similar nature
in which the propelling force is a spring, elastic band, carbon
dioxide, compressed or other gas or vapor, air or compressed air, or
is ignited by compressed air, and ejecting a bullet or missile
smaller than three-eighths of an inch in diameter, with sufficient
force to injure a person.
The second element that
the State must prove beyond a reasonable doubt is that defendant
possessed the firearm.
[Charge: Model Jury Charge on
Possession. If possession
is in a motor vehicle, also charge model jury charge on possession
of a firearm, etc. in a motor vehicle. N.J.S.A. 2C:39-2]
The third element that
the State must prove beyond a reasonable doubt is that defendant's
purpose in possessing the firearm was to use it against the person
or property of another. Purpose is a condition of the mind which
cannot be seen and can only be determined by inferences from
conduct, words or acts.
In determining the
defendant's purpose in possessing the firearm, you may consider that
a person acts purposely with respect to the nature of (his/her)
conduct or a result of (his/her) conduct if it is the person's
conscious object to engage in conduct of that nature or to cause
such a result. That is, a person acts purposely if (he/she) means
to act in a certain way or to cause a certain result. A person acts
purposely with respect to attendant circumstances if the person is
aware of the existence of such circumstances or believes or hopes
that they exist.
The defendant's purpose
or conscious objective to use the firearm against another person or
the property of another may be found to exist at any time (he/she)
is in possession of the object and need not have been the
defendant's original intent in possessing the object.
The fourth element that
the State must prove beyond a reasonable doubt is that the defendant
had a purpose to use the firearm in a manner that was prohibited by
law. I have already defined purpose for you. This element requires
that you find that the State has proven beyond a reasonable doubt
that the defendant possessed a firearm with the conscious objective,
design or specific intent to use it against the person or property
of another in an unlawful manner as charged in the indictment, and
not for some other purpose.
In this case, the State
contends that the defendant's unlawful purpose in possessing the
firearm was
(Describe the unlawful purpose of
defendant’s possession of the weapon)
You must not rely upon
your own notions of the unlawfulness of some other undescribed
purpose of the defendant; rather, you must consider whether the
State has proven the specific unlawful purpose charged.
The unlawful purpose alleged by the State may be inferred from all
that was said or done and from all of the surrounding circumstances
of this case.
However, the State need not prove that defendant accomplished his
unlawful purpose of using the firearm [or, if appropriate,
specifically define the elements of the crime defendant allegedly
intended to commit with the firearm].
[Charge if
applicable:] The defense on the other hand contends that
.
[If the defendant raises the issue of protective
purpose, charge the following paragraphs:]
I have already told you
that the State must prove beyond a reasonable doubt that defendant
had an unlawful purpose at the time in question. If you find that
the defendant had a lawful purpose, for example, to use the firearm
to protect (himself/herself) or another against the use of unlawful
force, or to protect (his/her) property, or if you have a reasonable
doubt as to the defendant’s purpose, then the State has failed to
carry its burden of proof on this element beyond a reasonable doubt.
I instruct you that for
purposes of this offense, if defendant honestly believed that
(he/she) needed to use a firearm to protect
(himself/herself/another/property), the law does not require that
this belief be reasonable. In other words, if defendant had an
honest though unreasonable belief that (he/she) needed to use the
weapon to protect (himself/herself/another), this negates the
purposeful mental state required for this offense.
[Choose appropriate]
Later on in the charge, I
will instruct you on the concept of self-defense/defense of another
as it applies to the offense(s) of
. The concept of self-defense/defense of another as it applies
to those offenses is different than that of protective purpose that
applies to this count of the indictment. When applied to that/those
offense(s), self-defense requires defendant to have both an honest
AND a reasonable belief in the need to use force.
OR
Earlier in the charge, I
instructed you on the concept of self-defense as it applies to the
offense(s) of .
The concept of self-defense/defense of another as it applies to
that/those offense(s) is different than that of protective purpose
that applies to this count of the indictment. When applied to
that/those offense(s), self-defense requires a defendant to have an
honest AND a reasonable belief in the need to use force.
[Charge in every case:]
If you are satisfied beyond a reasonable doubt that
the State has proven each of the elements of this offense as I have
defined them, then you must find defendant guilty. However, if you
find that the State has failed to prove beyond a reasonable doubt
any of the elements of this offense as I have defined them, then you
must find defendant not guilty.
The person/property
distinction is not an element of the crime and need not be
specifically determined by the jury verdict. State v.
Camacho, 153 N.J. 54, 69, 72 (1998). The court,
therefore should not inquire of the jury through a special
interrogatory whether its verdict distinguishes between
person or property. Ibid. Rather, the
person/property distinction is relevant for sentencing
purposes only, not for obtaining a conviction. Ibid.
If the State elects to proceed on only one theory, either
person or property, then the court should only instruct the
jury on the theory elected throughout the charge. If both
theories are alleged, then the court should include the
phrase “against the person or property of another”
throughout the charge.
Handgun means any
pistol, revolver or other firearm originally designed or
manufactured to be fired by the use of a single hand.
N.J.S.A. 2C:39-1k. The handgun need not be presently
operable. State v. Gantt, 101 N.J. 573 (1986).
See, State v. Daniels,
231 N.J. Super. 555 (App. Div. 1989); State v.
Harmon, 104 N.J. 189 (1986). Indeed, the State
is not required to prove defendant’s original purpose in
possessing the firearm. State v. Diaz, 144 N.J.
628, 636 (1996); State v. Petties, 139 N.J.
310, 316 (1995). See State v. Villar, 150
N.J. 503, 512 (1997).
State v. Petties,
supra. See State v. Villar, supra,
150 N.J. at 511.
State v. Jenkins,
234 N.J. Super. 311, 316 (App. Div. 1989). See
State v. Villar, supra.
State v. Petties,
supra; State v. Diaz, supra, 144 N.J.
at 636.
State v. Mello,
297 N.J. Super. 452, 464-67 (App. Div. 1997).
State v. Williams,
168 N.J. 323 (2001).
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