New Jersey Weapons Charges
POSSESSION OF A SAWED-OFF SHOTGUN
(N.J.S.A. 2C:39-3b)
Count _____ charges defendant with possession of a
sawed-off shotgun.
[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 sawed-off shotgun 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 two
elements beyond a reasonable doubt:
1. (That Exhibit S-____ is a sawed-off shotgun) (that
there was a sawed-off shotgun); and
2. That defendant knowingly possessed (Exhibit S-____) (a
sawed-off shotgun).
The first element that the State must prove beyond a
reasonable doubt is (that Exhibit S-____ is a sawed-off shotgun)
(that there was a sawed-off shotgun). The term "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. The term "shotgun" also means any firearm
designed to be fired from the shoulder which does not fire fixed
ammunition.
A sawed-off shotgun is any of the following: (1) a shotgun having a
barrel(s) of less than 18 inches measured from the breech to the
muzzle; (2) a rifle
having a barrel of less than 16 inches in length measured from the
breech to the muzzle; or (3) any firearm made from a rifle or
shotgun that, as modified, has an overall length of less than 26
inches.
New Jersey law classifies a sawed-off shotgun as a
prohibited weapon. This means that one cannot obtain a permit or
license for a sawed-off shotgun and that a sawed-off shotgun cannot
lawfully be possessed in this state.
The State is not required to prove that (Exhibit S-____) (the
sawed-off shotgun) was operable, i.e., capable of firing a
shot or projectile, on (date of incident). The statute only
requires that it be proven to be a rifle or shotgun in terms of its
original design.
The second element that the State must prove beyond a reasonable
doubt is that defendant knowingly possessed (Exhibit S-____) (the
sawed-off shotgun) at the time and place alleged. Here, the State
alleges that (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 \d4Thus, the person must know or be aware that he/she
possessed the item, here, a sawed-off shotgun. However, the State
is not required to prove that, at the time that he/she knowingly
possessed the firearm at issue, defendant also knew that its overall
length or barrel length was illegally short.
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 both elements of this crime
beyond a reasonable doubt, then you must find defendant guilty of
possession of a sawed-off shotgun. On the other hand, if the State
has failed to prove either element beyond a reasonable doubt, you
must find him/her not guilty.
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