New Jersey Weapons Charges
Approved
12/11/00
UNLAWFUL POSSESSION OF A RIFLE OR
SHOTGUN
N.J.S.A.
2C:39-5c(1)
Defendant(s),
, is charged in count _____ with
unlawful possession of a (rifle)(shotgun). The pertinent language
of the statute the defendant is charged with having violated reads
as follows:
Any person who knowingly has in his
possession any (rifle)(shotgun) . . . without first having obtained
a firearms purchaser identification card ... is guilty of a crime.
In order for the State to
convict the defendant of this crime, the State must prove beyond a
reasonable doubt these three essential elements:
1. S is a (rifle)(shotgun); (Or there was
a (rifle)(shotgun);
2. The defendant knowingly possessed the (rifle)(shotgun); and
3. The defendant did not have a valid firearms purchaser
identification card.
The first element the
State must prove beyond a reasonable doubt is that S____ is a (rifle)(shotgun)
(or there was a (rifle)(shotgun)).
A rifle means " any
firearm
designed to be fired from the shoulder and using the energy of the
explosive in a fixed metallic cartridge to fire a single projectile
through a rifled bore for each single pull of the trigger."
[OR]
A shotgun means “any
firearm designed to be fired from the shoulder and using the energy
of the explosive in a fixed shotgun shell to fire through a smooth
bore either a number of ball shots or a single projectile for each
pull of the trigger, or any firearm designed to be fired from the
shoulder which does not fire fixed ammunition.”
A firearm means “a weapon
from which may be fired or ejected any solid projectable ball, slug,
pellet, missile or bullet, or any gas, vapor or other thing, by
means of a cartridge or shell or by the action of an explosive or
the igniting of a flammable or explosive substance.
The second element the
State must prove beyond a reasonable doubt is that the defendant
knowingly possessed the (rifle)(shotgun).
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. "Knowingly," "with knowledge" or equivalent terms have the
same meaning. A person acts knowingly with respect to (his/her)
conduct if (he/she) is aware that (his/her) conduct is of that
nature. You must determine whether the defendant was aware of the
nature of (his/her) conduct in this case. Since knowledge is a
state of mind and cannot be seen and can only be determined by
inference from conduct, words or acts, it can rarely be proved
directly. Therefore, it is not necessary that witnesses be produced
by the State to testify that a defendant said (he/she) knowingly did
something. (His/her) knowledge may be gathered from (his/her) acts
and (his/her) conduct, and from all the surrounding circumstances
reflected in the evidence you have heard and seen in this case.
That is, you must be convinced beyond a reasonable doubt that the
defendant in this case was aware that (he/she) had a (rifle)(shotgun)
in (his/her) possession.
The word "possess" as
used in criminal statutes signifies a knowing, intentional control
of a designated thing, accompanied by a knowledge of its character.
Thus, the person must
know or be aware that (he/she) possesses the item in this case a
(rifle) (shotgun), and (he/she) must know what it is that (he/she)
possesses or controls that it is a (rifle) (shotgun).
[Where applicable charge
the following: this 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.
A person may possess a (rifle)(shotgun)
even though it was not physically on (his/her) person at the time of
the arrest, if (he/she) had in fact, at some time prior to (his/her)
arrest, control and dominion over it.
When we speak of
possession, we mean a conscious, knowing possession. The law
recognizes two kinds of possession: they are actual possession and
constructive possession.
ACTUAL 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.
CONSTRUCTIVE POSSESSION
The law recognizes that
possession may be constructive instead of actual.
Constructive possession
means possession in which the person does not physically have the
property, but though not physically on one's person, he 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, 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.
JOINT POSSESSION
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.
The third element that
the State must prove beyond a reasonable doubt is the defendant did
not have a valid firearms purchaser identification card. If you
find that the defendant knowingly possessed the (rifle)(shotgun),
and that there is no evidence that defendant had a valid firearm
purchaser identification card, then you may infer,
if you think it appropriate to do so based upon the facts presented,
that defendant had no such firearms purchaser identification card.
Note, however, that as with all other elements, the State bears the
burden of showing beyond a reasonable doubt the lack of a valid
firearms identification card, and you may apply the inference only
if you feel it appropriate to do so under all the facts and
circumstances.
If you find that the
State has failed to prove any one of the elements of the crime
beyond a reasonable doubt, your verdict must be "not guilty."
If, on the other hand,
you find that the State has proven all of the elements of the crime
beyond a reasonable doubt all of the elements, your verdict must be
"guilty."
See State v. Harmon, 203
N.J. Super. 216, 228 (App. Div.1985), rev’d on other
grounds 104 N.J. 189 (1986) as to whether a
particular device possessed or retained the characteristics
of a firearm.
If issue of temporary possession see
N.J.S.A. 2C:39-5g(1)(2).
See N.J.S.A. 2C:39-2b. If issue
is possession of a firearm by multiple occupants of a
vehicle, see N.J.S.A. 2C:39-2a. Also see State v.
Ingram, 98 N.J. 489, 497-500 (1985).
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