N.J. Model Criminal Jury Charge, N.J.S.A. 2C:33-22

Approved 3/5/07

POSSESSION OF RADIO TO INTERCEPT EMERGENCY COMMUNICATIONS

WHILE COMMITTING OR ATTEMPTING TO COMMIT A CRIME

(N.J.S.A. 2C:33-22)

The defendant is charged with possession of a radio to intercept emergency communications

while committing or attempting to commit a crime. The statute provides in pertinent part:

Any person who, while in the course of committing or attempting to

commit a crime, including the immediate flight therefrom, possesses

or controls a radio capable of receiving any message or transmission

made on or over any police, fire or emergency medical

communications system, shall be guilty of a crime ...

In order for you to find the defendant guilty of this offense, you must find that the State has

proved the following elements beyond a reasonable doubt:

1. the defendant knowingly possessed or knowingly controlled a radio capable of

receiving any message or transmission made on or over any police, fire or emergency

medical communications system; and

2. that the defendant possessed or controlle d that radio while in the course of

committing or attempting to commit a crime.

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

knowingly possessed or knowingly controlled a radio capable of receiving a message or transmission

made on or over a police, fire or emergency medical communications system.

A police, fire or emergency medical communications system is a radio system or other

communications system used by police officers, firefighters and/or emergency medical personnel to

communicate among themselves and/or with each other.

1

POSSESSION

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

To “possess” an item under the law, one must have a knowing, intentional control of that

item accompanied by a knowledge of its character. So, a person who possesses an item such as

(_________________________ IDENTIFY RELEVANT ITEM(S)) must know or be aware that

he/she possesses it, and he/she must know what it is that he/she possesses or controls (that it is

1 Radar devices used to monitor vehicle speed are not a “police, fire, or emergency medical

communications system.” N.J.S.A. 2C:33-23.

POSSESSION OF RADIO TO INTERCEPT EMERGENCY

COMMUNICATIONS WHILE COMMITING OR

ATTEMPTING TO COMMIT A CRIME

(N.J.S.A. 2C:33-22)

____________________). [WHERE APPLICABLE, charge: Possession cannot merely be a

passing control, fleeting or uncertain in its nature.] In other words, to “possess” an item, one

must knowingly procure or receive an item 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.

The State must prove beyond a reasonable doubt that a possessor acted knowingly in

possessing the item. 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

circumstances exist, or he/sh e is aware of the high probability of their existence. A person acts

knowingly as to a result of his/her conduct if he/she is aware that it is practically certain that that

conduct will cause such a result. Knowing, with know ledge, or equivalent terms have the same

meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by

inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce

witnesses to testify that a particular defendant stated, for example, that he/she acted with knowledge

when he/she had control over a particular thing. It is within your power to find that proof of

knowledge has been furnished beyond a reasonable doubt by inference which may arise from the

nature of the acts and the surrounding circumstances.

A person may possess _______________ (an item) even t hough it was not physically on

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

control over it.

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

[CHARGE THOSE FOLLOWING PARAGRAPHS AS APPLY TO YOUR CASE]

ACTUAL POSSESSION

A person is in actual possession of an item when he/she first, knows what it is: that is, he/she

has knowledge of its character, and second, knowingly has it on his/her person at a given time.

CONSTRUCTIVE POSSESSION

POSSESSION OF RADIO TO INTERCEPT EMERGENCY

COMMUNICATIONS WHILE COMMITING OR

ATTEMPTING TO COMMIT A CRIME

(N.J.S.A. 2C:33-22)

Possession may be constructive instead of actual. As I just stated, a person who, with

knowledge of its character, knowingly has direct physical control over an item 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 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.

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

was in the course of committing or attempting to commit a crime.

2

Here, the State contends that defendant was in the course of [INSERT CRIME

COMMITTED OR ATTEMPTED] .]3

An act is considered to be in the course of committing a crime if it occurs during an attempt

to commit a crime, during the commission of the crime itself, or during the immediate flight after the

attempt to commit or the commission of the crime.

If you find that the State has proved, beyond a reasonable doubt, the elements as I have just

explained them, then you must find the defendant guilty. If, on the other hand, you find that the State

has failed to prove any of the elements beyond a reasonable doubt, then you must find the defendant

not guilty.

2 When the case involves an attempt theory, attempt should be charged. See Model Charge for N.J.S.A.

2C:5-1. Note that attempt requires a purposeful state of mind. State v. Robinson, 136 N.J. 476 (1994).

3 The State must identify the crime that defendant was in the course of committing or attempting to

commit when he/she possessed a radio capable of receiving a message made over an emer gency

communications system. The court’s charge should advise the jury of the elements of the underlying crime.

Cf. State v. MacIlwraith, 344 N.J. Super. 544, 548 (App. Div. 2001).