N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-5(f)

Approved 10/22/18

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

(For cases June 13, 2018 or after)

Defendant(s), _______________________, is /are charged in count _______ with

unlawful possession of an assault firearm. The pertinent language of the statute reads as follows:

Any person who knowingly has in his possession an assault

firearm is guilty of a crime...except if the assault firearm is

licensed... registered... or rendered inoperable.

The crime with which the defendant in this case is charged contains three essential

elements, all of which the State must prove beyond a reasonable doubt. They are:

1. S__________ is an assault firearm or (there was an assault firearm) ; (choose

appropriate)

2. The defendant knowingly possessed the assault firearm; and

3. The assault firearm was not licensed, registered, or rendered inoperable.

A “firearm” is defined as any handgun, rifle, shotgun, machine gun, automatic or semi -

automatic rifle, or any gun, device or instrument in the nature of a weapon from whi ch may be

fired or ejected any solid projectile 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....

1

An assault firearm includes the following firearms 2 [Select appropriate]: (1) Algimec

AGM1 type; (2) Any shotgun with a revolving cylinder such as the "Street Sweeper" or "Striker

12"; (3) Armalite AR -180 type; (4) Australian Automatic Arms SAR; ( 5) Avtomat Kalashnikov

type semi -automatic firearms; ( 6) Beretta AR -70 and BM59 semi -automatic firearms; ( 7)

Bushmaster Assault Rifle; (8) Calico M-900 Assault carbine and M -900; (9) CETME G3; ( 10)

Chartered Industries of Singapore SR -88 type; ( 11) Colt AR -15 and CA R-15 series; (1 2)

Daewoo K -1, K -2, Max 1 and Max 2, AR 100 types; (13) Demro TAC -1 carbine type; (1 4)

Encom MP-9 and MP -45 carbine types; (15) FAMAS MAS223 types; (1 6) FN-FAL, FN-LAR,

or FN-FNC type semi -automatic firearms; (1 7) Franchi SPAS 12 and LAW 12 shotguns; (18)

G3SA type; (19) Galil type Heckler and Koch HK91, HK93, HK94, MP5, PSG -1; (20) Intratec

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

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

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

TEC 9 and 22 semi -automatic firearms; ( 21) M1 carbine type; (2 2) M14S type; (2 3) MAC 10,

MAC 11, MAC 11- 9mm carbine type firearms; (2 4) PJK M -68 carbine type; (2 5) Plainfield

Machine Company Carbine; (2 6) Ruger K-Mini-1 4/5F and Mini -1 4/5RF; (27) SIG AMT, SIG

550SP, SIG 551SP, SIG PE -57 types; (28 ) SKS with detachable magazine type; (2 9) Spectre

Auto carbine type; (30) Springfield Armory BM59 and SAR-48 type; (31) Sterling MK-6, MK-7

and SAR types; (32 ) Steyr A.U.G. semi -automatic firearms; (33) USAS 12 semi -automatic type

shotgun; (34) Uzi type semi -automatic firearms; (3 5) Valmet M62, M71S, M76, or M78 type

semi-automatic firearms; or (36) Weaver Arm Nighthawk].

(Charge if applicable) A is designated as an assault firearm.

(Charge if applicable) Any firearm manufactured under any designation which is

substantially identical to any of the firearms listed in the statute is also an assault firearm. I n this

case, the State alleges that S_________ is substantially identical to _______________ which is

designated in the statute.3

(Charge if appropriate: On the other hand, the defendant maintains ______________).

(Include any of the three following definitions of assault firearm if material to the case)

The term “substantial” means pertaining to the substance, matter, material or essence of a

thing. The term “identical” means exactly the same. Hence, a firearm is substantially identical

to another only if it is identical in all material, essential respects. A firearm is not substantially

identical to a listed assault firearm unless it is identical except for differences which do not alter

the essential nature of the firearm.

4

The following are examples of manufacturer changes that do not alter the essential nature

of the firearm: name or designation of the firearm; the color of the firearm; the material used to

make the barrel or stock of the firearm; the material used to make a pistol grip; a modific ation of

a pistol grip. This is not an exclusive list.

A semi -automatic firearm should be considered to be “substantial ly identical,” that is,

identical in all material respects, to a named assault weapon if it meets the below listed criteria:

(Semi-automatic shotgun: Charge if applicable)

An assault firearm also means a semi -automatic shotgun with either a magazine capacity

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

4 Attorney General Guidelines Regarding the “Substantially Iden tical” Provision in the State’s

Assault Firearm Laws (Aug. 1996); Coalition of N ew Jersey Sportsmen, Inc. v. Whitman, 44 F. Supp. 2d

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

exceeding six rounds, a pistol grip, or a folding stock.5 “Semi-automatic” means a firearm which

fires a single projectile for each single pull of the trigger and is self -reloading or automatically

chambers a round, cartridge, or bullet. 6 A “pistol grip” means a well -defined handle, similar to

that found on a handgun, that protrudes conspicuously beneath the action of the weapon, and

which permits the shotgun to be held and fired with one hand.7

It includes a semi-automatic shotgun that has at least 2 of the following:

1. A folding or telescoping stock;

2. A pistol grip that protrudes conspicuously beneath the action of the weapon;

3. A fixed magazine capacity in excess of 5 rounds; and

4. An ability to accept a detachable magazine.

(Semi-automatic Rifle: Charge if applicable)

“Semi-automatic” mean a firearm which fires a single projectile for each single pull of

the trigger and is self-reloading or automatically chambers a round, cartridge, or bullet.8

It includes a semi-automatic rifle that has the ability to accept a detachable magazine and

has at least 2 of the following:

1. a folding or telescoping stock;

2. a pistol grip that protrudes conspicuously beneath the action of the weapon;

3. a bayonet mount;

4. a flash suppressor or threaded barrel designed to accommodate a flash suppressor;

and

5. a grenade launcher

An assault firearm also means a semi -automatic rifle with a fixed magazine capacity

exceeding 10 rounds.9 The State must prove beyond a reasonable doubt that the alleged semi -

automatic firearm did not have an attached tubular device capable of operating only with .22

caliber rimfire ammunition.10

666 D.N.J. (1999), aff'd 263 F. 3d 157 (3d Cir. 2001).

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

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

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

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

9 N.J.S.A. 2C:39-1(w)(4) (Effective June 13, 2018). The magazine capacity was amended from 15

rounds to 10 rounds. L. 2018, c. 39.

10 N.J.S.A. 2C:39-1(w)(4).

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

(Semi-automatic pistol: Charge if applicable)

A semi-automatic pistol that has an ability to accept a detachable magazine and has at

least 2 of the following:

1. An ammunition magazine that attaches to the pistol outside of the pistol grip;

2. A threaded barrel capable of accept ing a barrel extender, flash suppressor, forward

handgrip, or silencer;

3. A shroud that is attached to, or partially or completely encircles, the barrel and that

permits the shooter to hold the firearm with the non- trigger hand without being

burned;

4. Manufactured weight of 50 ounces or more when the pistol is unloaded; and

5. A semi-automatic version of an automatic firearm.

An assault firearm also means a part or combination of parts designed or intended to

convert a firearm into an assault firearm, or any combination of parts from which an assault

firearm may be readily assembled if those parts are in the possession or under the control of the

same person.

11

(CHARGE IF APPLICABLE FOR CASES - January 16, 2018 or after)

An assault firearm also means a firearm with a bump stock attached. 12 “Bump stock”

means any device or instrument for a firearm that increases the rate of fire achievable with the

firearm by using energy from the recoil of the firearm to generate a reciprocating action that

facilitates repeated activation of the trigger.13

(RESUMPTION OF MAIN CHARGE)

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

defendant knowingly possessed the assault firearm.

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 circumstance

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/she is aware that it is practically certain that his/her

conduct will cause such a result. “Knowingly,” “with knowledge” or equivalent term s have the

11 N.J.S.A. 2C:39-1(w)(5).

12 N.J.S.A. 2C:39-1(w)(6). See L. 2017, c. 323.

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

same meaning. A person acts knowingly with respect to his/her conduct if he/she is aware that

his/her conduct is of that nature. You must determine whether the defendant was aware of the

nature of his/her conduct in this case. 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

directly. 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 refl ected 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 his/her

possession.

POSSESSION

14

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 item, in this case S______, and the pe rson must know what

it is that he/she possess or controls, in this case, that it is a firearm. The State need not prove that

defendant knew it was an assault firearm.15

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 control if he/she chose to do so.

A person may possess S________ even t hough it was not physically on his/her person at

the time of the arrest, if the person had in fact, at some time prior to his/her arrest, had control

over it.

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

14 Charge statutory inference in N.J.S.A. 2C:39-2, if applicable.

15 See State v. Pelleteri, 294 N.J. Super. 330, 333-34 (App. Div. 1996) , where the Court held “that

knowledge of the character of the weapon is not an element of the offense...the Legislature intended to

proscribe knowing possession, as distinguished from knowledge of the illegal character of the article

possessed...In that context, ‘[k]nowing possession is not to be confused with criminal intent or guil ty

knowledge.’” The trial judge in response to a question arising out of deliberations charged the jury “that

defendant could be found guilty if he knowingly possessed the firearm (a semi -automatic rifle with a

magazine capacity of seventeen cartridges) bu t was unaware that its fixed capacity exceeded fifteen

rounds.” The case also involved the defenses of mistake of law and mistake of fact which were precluded

by the trial judge. The Appellate Court found no error with the rulings of the trial court and a ffirmed the

conviction.

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

Possession means a conscious, knowing possession, either actual or constructive.

[CHARGE THOSE FOLLOWING PARAGRAPHS AS THEY APPLY TO YOUR CASE]

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 cha racter, 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 possesso r does not physically

have the item on his or 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,

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

item.

[MERE PRESENCE – Read if Appropriate

16]

Defendant’s mere presence at or near a place where [co ntraband] is/are discovered is 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 possession 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/she had possession of the [contraband] unless there are other circumstance(s)

tending to permit such an inference to be drawn. 17 Such evidence can include, but is not limited

to [choose as appropriate]: placement and accessibility of the [contraband]; defendant’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

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

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

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

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

[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].18

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.19

JOINT POSSESSION

Possession may be sole or joint. If one person alone has actual or constructive possession

of an item, possession is sole. If two or more persons share actual or constructive knowing

possession of an item, possession is joint.

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

firearm was not licensed, registered or rendered inoperable.20

[Charge appropriate section]

An assault firearm is “licensed” when the possessor obtains a valid license to possess and

carry the assault firearm.21

An assault firearm is “registered”:

1) When the owner of an assault firearm purchased on or before May 1, 1990 properly

registered the assault firearm as one that is legitimate for target shooting purposes

before May 30, 1991.22

2) When the owner of a firearm with a fixed magazine capacity holding up to 15 rounds

which is incapable of being modified to accommodate 10 or less rounds pu rchased on or

before June 13, 2018 properly registered the firearm on or before June 13, 2019.

3) When the owner of a firearm which only accepts a detachable magazine with a

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

18 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.

19 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.

20 There is no burden on the State to prove operability of the assault firearm. State v. Elrose , 277

N.J. Super. 548, 557 (App. Div. 1994).

21 N.J.S.A. 2C:58-5.

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

capacity of up to 15 rounds which is incapable of being modified to accommodate 10 or

less rounds purchased on or before June 13, 2018 properly registered the firearm on or

before June 13, 2019. 23

An assault firearm is “rendered inoperable” when:

1. The firearm is altered in such a manner that it cannot be immediately fired;

2. The owner or possessor of the firearm does not possess or have control over

the parts necessary to make the firearm operable; and

3. The owner of the firearm filed a valid certification prior to May 30, 1991

indicating the date on which the firearm was rendered inoperable.24

If the defendant a lleges that the assault firearm was lawfully possessed and/or rendered

inoperable during the time frame of August 8, 2013 to February 5, 2014, the State must disprove

that defense beyond a reasonable doubt.25

[Resume Main Charge]

If you find that the defendant knowingly possessed the assault firearm, and that there is

no evidence that the defendant had a valid license to possess and carry such a firearm or that the

defendant legally registered it or render ed it inoperable by filing a valid certification of

inoperability, then you may infer, if you think it appropriate to do so based upon the facts

presented, that defendant had no such license and that the defendant did not legally register the

firearm or render it inoperable. 26 Note, however, that as with all other elements, the State bears

the burden of showing, beyond a reasonable doubt, the lack of a valid license and registration

and that the firearm was not rendered inoperable. You may apply the inference only if you feel it

appropriate to do so under all the facts and circumstances.

If you have found that the State has proven each of the elements beyond a reasonable

doubt, then you must find the defendant guilty.

If you have found that the State has failed to prove any of the elements beyond a

22 N.J.S.A. 2C:58-12.

23 L. 2018, c. 39 contains an amnesty provision, codified at N.J.S.A. 2C:39- 19. A similar -worded

amnesty provision was interpreted in State v. Harper , 229 N.J. 228 (2017). In that case, the Court held

that the defendant must give timely notice he intends to rely upon an amnesty defense, and i f properly

raised, the State bears the burden to disprove the defense by a reasonable doubt. Id. at 241-42.

24 See State v. Elrose, 277 N.J. Super. at 557 and N.J.S.A. 2C:58-13.

25 See Section 2(a) of L. 2013, c. 117.

26 N.J.S.A. 2C:39-2(b).

POSSESSION OF AN ASSAULT FIREARM

N.J.S.A. 2C:39-5(f)

reasonable doubt, then you must find the defendant not guilty.