New Jersey Weapons Charges
POSSESSION OF A DEFACED FIREARM
(N.J.S.A. 2C:39-3d)
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.”
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.
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.
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.
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.
ADVANCE \d4 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.
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 exercise intentional control or dominion
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.
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