New Jersey Weapons Charges
Approved 6/13/05
POSSESSION OF PROHIBITED WEAPONS
AND DEVICES
(Dum-dum, hollow nose bullets or body
armor penetrating bullets)
(N.J.S.A. 2C:39-3f)
Count
of the indictment charges the
defendant as follows:
(Read Indictment)
The
pertinent part of the statute (N.J.S.A. 2C:39-3f) 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
defendant does not claim legal authorization, so the exceptions in
the statute are not applicable in this case.)
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:
1. S
in evidence is (a hollow nose or dum-dum bullet)[or](body
armor breaching or penetrating ammunition).
2. The defendant possessed,
or had under (his/her) control, S
in evidence.
3. That the defendant acted
knowingly.
In regard to the
first element, 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.
[or]
In regard to the
first element, 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.
In regard to the
second element, that the defendant had under (his/her) control or
possessed S in evidence,
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
(hollow point bullet or dum-dum bullet)[or](body armor penetrating
bullet), and (he/she) must know what it is that (he/she)
possesses or controls that it is a prohibited weapon or device.
[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. (Define “knowing” N.J.S.A. 2C:2-2
and any other definition relevant to the item allegedly possessed.)
A person
may possess (an item)
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, had 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, 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.
In
regard to the third element, that the defendant acted knowingly, 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 is aware that it is practically certain that
(his/her) conduct will cause such a result. “Knowing,” “with
knowledge” or equivalent terms have the same meaning.
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 by direct evidence, such as a statement by the defendant
that (he/she) had particular knowledge when he did something.
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 S
in evidence, in his possession.
To reiterate, the three 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 possessed,
or had under (his/her) control, S
in evidence.
3. That the defendant acted
knowingly.
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.
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