New Jersey Weapons Charges
Revised 04/18/05
UNLAWFUL
POSSESSION OF A WEAPON
(N.J.S.A.
2C:39‑5d)
The defendant is charged
with knowingly having in his/her possession a weapon. [READ
COUNT OF INDICTMENT]. That section of our statutes provides in
pertinent part:
“Any person who knowingly
has in his possession any
other weapon under circumstances not manifestly appropriate for such
lawful uses as it may have, is guilty of a crime. . . .”
In order to convict the
defendant of this crime, the State must prove the following elements
beyond a reasonable doubt
1. That S -
is a weapon (or that there was a weapon);
2. That the
defendant possessed the weapon knowingly;
3.
That the defendant’s possession of the weapon was under
circumstances not manifestly appropriate for a lawful use.
The first element that
the State must prove beyond a reasonable doubt is that S -
is a weapon [or that there was a weapon]. A
weapon is anything readily capable of lethal use or of inflicting
serious bodily injury.
The second element that
the State must prove beyond a reasonable doubt is that the weapon
was knowingly possessed by the defendant at the time and place
alleged. Here, the State alleges that defendant possessed the
weapon at (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 had a certain state of mind when he 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.
Thus, the
person must know or be aware that he/she possesses the item, here a
and he/she must know what it is that
he/she possesses or controls, in other words, that it is a (describe
object possessed). 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.
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. The third element that
the State must prove beyond a reasonable doubt is that the defendant
possessed S - [or
possessed the object] under circumstances not manifestly appropriate
for such lawful uses as it may have. It is not necessary for the
State to prove that the defendant formed an intent to use S -
[or the object] as a weapon.
It is, however, necessary
for the State to prove that it was possessed under such
circumstances that a reasonable person would recognize that it was
likely to be used as a weapon; in other words, under circumstances
where it posed
[CHOOSE APPROPRIATE]
a likely threat of harm to others
[AND/OR]
a likely threat of damage to property.
You may consider factors such as the surrounding circumstances;
size, shape and condition of the object, the nature of its
concealment, the time, place and actions of the defendant when it
was found in his/her possession to determine whether or not the
object was manifestly appropriate for its lawful use.
If the State has proven
each element beyond a reasonable doubt, then you must find defendant
guilty. If, however, the State has failed to prove any element of
the offense beyond a reasonable doubt, then you must find defendant
not guilty.
This provision is inapplicable to possession of machine
guns, handguns, rifles and shotguns. (See N.J.S.A.
2C:39‑5a to 5e.).
See State in re G.C., 179
N.J.
475, 483-84 (2004) (determining that statute applies to
threats to person and property).
|
