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HARK & HARK
New Jersey Criminal Lawyer
1101 Marlton Pike West
Cherry Hill, NJ 08002
(866) 427-5529
Practicing in all NJ Counties
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New Jersey Weapons Charges
Approved 3/22/04
POSSESSION OF
FIREARM WHILE COMMITTING CERTAIN
DRUG CRIMES
(N.J.S.A.
2C:39-4.1a)
[Defendant] is
charged with possessing a firearm while in the course of committing,
attempting to commit, or conspiring to commit a violation of certain
laws.
This charge is based on a statute which reads:
"Any person who has in his possession any
firearm while in the course of committing, attempting to commit, or
conspiring to commit a violation of [certain drug crimes] is guilty
of a crime ..."
For you to
find [defendant] guilty of this charge, the State must prove beyond
a reasonable doubt the following elements:
1.
That there was a firearm.
2.
That [defendant] possessed the firearm.
3.
That, at the time alleged in the indictment, [defendant] was in the
course of committing, attempting to commit, or conspiring to commit,
[the specific drug offense
charged].
The first
element that the State must prove beyond a reasonable doubt is 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.
The second element that the State must prove
beyond a reasonable doubt is that [defendant] possessed the
firearm. The word possess as used in criminal statutes signifies a
knowing, intentional control of a designated thing, accompanied by a
knowledge of its character. Therefore, [defendant] must have known
or have been aware that he possessed the firearm, and he must have
known that what he possessed was a firearm. The possession cannot
merely be a passing control, fleeting or uncertain in its nature.
So, to possess within the meaning of the law, [defendant] must have
knowingly procured or received the firearm or must have been aware
of his control of it for a sufficient period of time to have been
able to relinquish control if he chose to do so. A person acts
knowingly with respect to the nature of his conduct or the attendant
circumstances if he is aware that his conduct is of that nature, or
that such circumstances exist, or he is aware of the high
probability of their existence. A person acts knowingly as to a
result of his conduct if he is aware that it is practically certain
that his conduct will cause such a result. Knowing, with
knowledge, or equivalent terms have the same meaning.
Possession means a
conscious, knowing possession. Someone may possess an object even
though it was not physically on his person at the time if he had in
fact at some time prior to his arrest control and dominion over it.
Possession may be
either actual or constructive. A person is in actual possession of
an item if he knows what it is [that is, he/she has knowledge of its
character] and knowingly has it on his person at a given time.
Alternatively, possession may be constructive, instead of actual.
Constructive possession is possession in which the person does not
physically have the property, but although the property is not
physically on his person, he/she is aware of the presence of the
property and is able to exercise intentional control or dominion
over it. So, 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.
Similarly,
possession can be either 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 over
a thing, they possess the thing jointly if they knowingly share
control over it.
[If
possession is in a motor vehicle: charge Model Jury Charge on
Possession of Weapon, etc., in Motor Vehicle, per N.J.S.A.
2C:39-2].
“Knowingly” refers
to a condition of the mind. It cannot be seen. Often, it can be
determined only by inferences drawn from a defendant’s conduct,
words or acts as presented in the evidence you have heard and seen.
So, it is not necessary that the State produce a witness or
witnesses to testify that an accused said, for example, that he
acted purposely when he engaged in the conduct with which he is
charged. You may find that proof of “knowingly” has been furnished
beyond a reasonable doubt by inferences which you may draw from the
nature of the acts and the circumstances surrounding the conduct
under investigation as you have heard from the evidence.
The third
element that the State must prove beyond a reasonable doubt is that
[defendant] possessed the firearm while he/she was in the course of
committing, attempting to commit, or conspiring to commit the crime
of . The term
“in the course of committing” means that, at the time [defendant]
possessed the weapon, he/she was also committing a drug crime,
namely
. The term “attempting to commit” means that, at the time
[defendant] possessed the weapon, he/she was also purposely engaged
in conduct which would constitute [the stated drug crime]
, if the attendant circumstances were as a reasonable person
would believe them to be; or doing anything with the purpose of
causing the result which is a specific element of [the stated drug
crime] , or
purposely doing anything which, under the circumstances as a
reasonable person would believe them to be, is an act or omission
constituting a substantial step in a course of conduct planned to
culminate in his commission of that crime.
The term
“conspiring to commit” means that, at the time [defendant] possessed
the weapon, he/she also had the purpose of promoting or facilitating
the commission of [the stated drug crime]
and either (1) agreed with another
person or persons that they or one or more of them will engage in
conduct which constitutes such crime or an attempt or solicitation
to commit such crime, or (2) agreed to aid another person or persons
in the planning or commission of such crime or of an attempt or
solicitation to commit such crime.
If the State
has proven each of the elements of this offense beyond a reasonable
doubt, [defendant] must be found guilty of this charge. However, if
the State has failed to prove, beyond a reasonable doubt, any one of
the elements of this offense, you must find him/her not guilty of
this charge.
The citations contained within N.J.S.A. 2C:39-4.1
are: N.J.S.A. 2C:35-3; N.J.S.A. 2C:35-4;
N.J.S.A. 2C:35-5, N.J.S.A. 2C:35-5.2; N.J.S.A.
2C:35-5.3; N.J.S.A. 2C:35-6, N.J.S.A.
2C:35-7, N.J.S.A. 2C:35-7.1; or N.J.S.A.
2C:35-11.
See Model Jury Charge – Attempt and N.J.S.A.
2C:5-1 (a).
See Model Jury Charge – Conspiracy and N.J.S.A.
2C:5-2(a).
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