N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-3j

Approved 5/13/19

POSSESSION OF LARGE CAPACITY AMMUNITION MAGAZINE1

N.J.S.A. 2C:39-3(j)

(For crimes committed on or after December 10, 2018)

Count of the indictment charges the defendant as follows:

(Read Indictment)

The pertinent part of the statute on which this indictment is based is as follows:

it shall be unlawful for any person to knowingly possess any large

capacity ammunition magazine.

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 large capacity ammunition magazine.

2. That defendant knowingly possessed Exhibit S -____ ( the alleged

magazine).

In regard to the first element that the State must prove beyond a reasonable doubt , a large

capacity ammunition magazine means a box, drum, tube or other container which is capable of

holding more than 10 rounds of ammunition to be fed continuously and directly therefrom into a

1 The statute contains certain exemptions including if the person:

(1) has registered an assault firearm pursuant to N.J.S.A. 2C:58-12, and the magazine is maintained and

used in connection with parti cipation in competitive shooting matches sanctioned by the Director of

Civilian Marksmanship of the United States Department of the Army. See N.J.S.A. 2C:39-3(j)(1); or

(2) has registered a firearm with a fixed magazine capacity or detachable magazine capa ble of holding up

to 15 rounds, pursuant to N.J.S.A. 2C:39-20. See N.J.S.A. 2C:39-3(j)(2); or

(3) is a member of the Armed Forces of the United States or the National Guard, or except as otherwise

provided, to any law enforcement officer while actually on duty or traveling to or from an authorized

place of duty, provided that his possession of the prohibited weapon or device has been duly authorized

under the applicable laws, regulations or military or law enforcement orders. See N.J.S.A. 2C:39-

3(g)(1)(a).

(4) is a law enforcement officer who possesses and carries while off -duty a large capacity ammunition

magazine capable of holding not more than 17 rounds of ammunition that can be fed continuously and

directly into a semi-automatic firearm. See N.J.S.A. 2C:39-3(g)(1)(b) (Effective 12/19/18); or

(5) is a law enforcement officer who possesses and carries while off -duty a large capacity ammunition

magazine capable of holding more than 17 rounds of ammunition that can be fed continuously and

directly into a s emi-automatic firearm provided the large capacity ammunition magazine is used with a

service firearm issued to the officer by the officer’s employer for use in the officer’s official duties. See

N.J.S.A. 2C:39-3(g)(1)(c) (Effective 12/19/18).

If any of these defenses are raised, the jury should be instructed that the State bears the burden to

disprove beyond a reasonable doubt the existence of any statutory exemption.

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N.J.S.A. 2C:39-3(j)

semi-automatic firearm. The term shall not include an attached tubular device which is capable

of holding only .22 caliber rimfire ammunition.2

A semi-automatic firearm is defined as a firearm which fires a single projectile for each

single pull of the trigger and is self -reloading or automatically chambers a r ound, cartridge, or

bullet.3

The second element that the State must prove beyond a reasonable doubt is that the

defendant knowingly possessed S-_____ in evidence. T he word “possess” as used in criminal

statutes signifies a knowing, intentional control of a designated thing, accompanied by a

knowledge of its character.

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 dir ect

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 thin g. 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 an d place and from all

surrounding circumstances established by the evidence.

2 N.J.S.A. 2C:39-1(y).

3 N.J.S.A. 2C:39-1(x).

POSSESSION OF LARGE CAPACITY

AMMUNITION MAGAZINE

N.J.S.A. 2C:39-3(j)

Thus, [defendant] must know or be aware that he/she possessed the item, here th e item

alleged to be a large capacity ammunition magazine. The State [i s] not required to prove that, at

the time that he/she knowingly possessed the magazine that the defendant also knew that it was a

large capacity ammunition magazine.4

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.

[Choose Appropriate]

ACTUAL POSSESSION

A person is in actual possession of a particular article or thing when he/she knows what it

is; that is, the person has knowledge of its character and second, knowingly has it on his/her

person at a given time.

CONSTRUCTIVE POSSESSION

The law recognizes that possession may be constructive instead of actual. 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 possessor does not physically

have the item on his/her person but is aware that the item is present and is able to and has the

intention to exercise control over it. So, someone who has knowledge of the character of an item

and knowingly has both the power and the intention at a given time to exercise control over it,

4 See State v. Reininger, 430 N.J. Super. 517, 538 (App. Div.), certif. denied, 216 N.J. 367 (2013),

cert. denied, 572 U.S. 1088 (2014). See also State v. Smith, 197 N.J. 325, 338 (2009).

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N.J.S.A. 2C:39-3(j)

either directly or through another person or persons, is then in constructive possession of that

item.

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.

[MERE PRESENCE – Read if Appropriate

5]

Defendant’s mere presence at or near a place where [contraband] is/are discovered i s not

in itself, without more, proof beyond a reasonable doubt that defendant was in constructive

possession of [that contraband]. It is, however, a circumstance to be considered with the other

evidence in determining whether the State has proven possessi on of the [contraband] beyond a

reasonable doubt.

Where defendant is one of the persons found in the area where [contraband] is/are

discovered, you may not conclude, without more, that the State has proven beyond a reasonable

doubt that he/sh e had possession of the [contraband] unless there are other circumstance(s)

tending to permit such an inference to be drawn.

6 Such evidence can include, but is not limited

to [choose as appropriate]: placement and accessibility of the [contraband]; defen dant’s access to

and connection with the place where the [contraband] was/were found; his/her proximity to the

place where the [contraband] was/were found; his/her demeanor when confronted by police after

the [contraband] was/we re found; whether defendant made any inculpatory statements after the

5 State v. Randolph, 228 N.J. 566, 590-93 (2017).

6 State v. Jackson , 326 N.J. Super. 276, 280 ( App. Div. 1999); See State v. Brown, 80 N.J. 587,

593 (1979) and State v. Sapp, 71 N.J. 476 (1976), rev’g on dissent 144 N.J. Super. 455, 460 (1975).

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N.J.S.A. 2C:39-3(j)

[contraband] was/were found; whether defendant possessed other [contraband] on his/her person

or property when the [contraband] was/were found; [any other evidence deemed part of the

totality of circumstances].7

In summary, the State must prove more than defendant’s mere presence at the time that

the [contraband] was/were found. There must be other circumstance(s) tying defendant to the

[contraband] in order for the State to prove constructive possession beyond a reasonable doubt.]

8

If the State has proven each element of this crime beyond a reasonable doubt, then you

must find defendant guilty.

On the other hand, if the State has failed to prove any element beyond a reasonable doubt,

you must find defendant not guilty.

7 State v. Randolph, 228 N.J. at 590-93, citing State v. Palacio , 111 N.J. 543, 549-54 (1988) and

State v. Shipp, 216 N.J. Super. 662, 664- 66 (App. Div. 1987). See Palacio, Shipp, and State v.

Montesano, 298 N.J. Super. 597, 615 (App. Div. 1997), certif. denied, 150 N.J. 27 (1997), for

circumstances more specifically related to presence in or near an automobile in which drugs are found.

8 State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff’d o.b. 133 N.J. 481 (1993);

Jackson, 326 N.J. Super. at 280.