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CHARGED WITH?
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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)
[WEAPON OTHER
THAN A FIREARM]
POSSESSION OF
WEAPON WITH A PURPOSE
TO USE IT
UNLAWFULLY AGAINST THE PERSON
OR PROPERTY OF
ANOTHER WHILE COMMITTING
CERTAIN DRUG
CRIMES
(N.J.S.A.
2C:39-4.1b)
[Defendant] is
charged with possessing a weapon with a purpose to use it unlawfully
against the person or property of another 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
weapon with a purpose to use it unlawfully against the person or
property of another, 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 weapon.
2.
That [defendant] possessed the weapon.
3. That he/she possessed the weapon with the purpose to use
it against another person or the property of another.
4.
That his/her purpose was to use the weapon unlawfully.
5. That, at that time, [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 weapon. A "weapon" is anything readily capable of
lethal use or of inflicting serious bodily injury. "Serious bodily
injury" means bodily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member
or organ.
Many objects
have innocent uses. For example, ordinarily, a knife is
neither a weapon nor is its possession against the law. An otherwise
harmless object such as a baseball bat, however, could inflict
serious bodily harm if used to strike another person. If the State
establishes beyond a reasonable doubt that the object is capable of
being used to inflict serious bodily injury, it may be considered a
weapon.
The second element that the State must
prove beyond a reasonable doubt is that [defendant] possessed the
weapon. 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 weapon, and he must have
known that what he possessed was a weapon. 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 weapon 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].
The third element
that the State must prove beyond a reasonable doubt is that [defendant]’s
purpose in possessing the weapon was to use it against another
person or the property of another. Purpose, like knowledge or
“knowing”, is a condition of the mind. It cannot be seen. Often, a
condition of the mind can only be determined by inferences from
conduct, words or acts. In determining that purpose which existed
at the time, you may consider that a person acts purposely with
respect to the nature of his/her conduct or a result of his/her
conduct if it is the person's conscious object to engage in conduct
of that nature or to cause such a result. That is, a person acts
purposely if he/she means to act in a certain way or to cause a
certain result. A person acts purposely with respect to attendant
circumstances if the person is aware of the existence of such
circumstances or believes or hopes that they exist. So, one’s
purpose or conscious object to use the weapon against another person
may be found to exist at any time he is in possession of the object
and need not have been his/her original purpose in possessing the
object.
“Purposely” 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 purpose 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 fourth
element that the State must prove beyond a reasonable doubt is that
while [defendant] was committing, attempting to commit, or
conspiring to commit [the specific drug crime], he/she had a purpose
to use the weapon in a manner prohibited by law. This requires that
you find that [defendant] possessed a weapon with the conscious
objective, design or specific intent to use it against the person or
property of another in an unlawful manner as charged in this case
and not for some other purpose. The State contends here that
[defendant’s] unlawful purpose in possessing the weapon was
.
The defense
disputes this contention. You must not consider your own notions of
the unlawfulness of this purpose. You must consider whether the
State has proven the specific unlawful purpose charged.
The fifth
element is that [defendant] must be shown, beyond a reasonable
doubt, to have been in the course of committing, attempting to
commit, or conspiring to commit the crime of
at that time.
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
.
[IF
APPLICABLE, USE MODEL CHARGE FOR ATTEMPT,
CONSPIRACY OR
BOTH]
If the State has proven each of these
elements beyond a reasonable doubt, you must find [defendant]
guilty. However, if the State has failed to prove, beyond a
reasonable doubt, any one of these elements, 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 or
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.
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