N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-5c(1)

Revised 10/22/18

UNLAWFUL POSSESSION OF A RIFLE OR SHOTGUN

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

Defendant(s), , is charged in count _____ with unlawful possession of a

(rifle)(shotgun). The pertinent language of the statute the defendant is charged with having

violated reads as follows:

Any person who knowingly has in his possession any

(rifle)(shotgun) . . . without first having obtained a firearms

purchaser identification card ... is guilty of a crime.

In order for the State to convict the defendant of thi s crime, the State must prove beyond

a reasonable doubt these three essential elements:

1. S is a (rifle)(shotgun); (Or there was a (rifle)(shotgun);

2. The defendant knowingly possessed the (rifle)(shotgun); and

3. The defendant did not have a valid firearms purchaser identification card.

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

(rifle)(shotgun) (or there was a (rifle)(shotgun)).

A rifle means "any firearm 1 designed to be fired from the shoulder and using the energy

of the explosive in a fixed metallic cartridge to fire a single projectile through a rifled bore for

each single pull of the trigger."2

[OR]

A shotgun means “any firearm designed to be fired from the shoulder and using the

energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of

ball shots or a single projectile for each pull of the trigger, or any firearm designed to be fired

from the shoulder which does not fire fixed ammunition.”

3

A firearm means “a weapon from which may be fired or ejected any solid projectable

ball, slug, pellet, missile or bullet, or any gas, vapor or other thing, by means of a cartridge or

shell or by the action of an explosive or the igniting of flammable or explosive substances.”

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

1 See State v. Harmon, 203 N.J. Super. 216, 228 (App. Div. 1985), rev’d on other grounds 104 N.J.

189 (1986) as to whether a particular device possessed or retained the characteristics of a firearm.

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

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

UNLAWFUL POSSESSION OF A RIFLE OR SHOTGUN

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

knowingly possessed the (rifle)(shotgun).

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 tha t such circumstances

exist, or he/she is aware of a high probability of their existence. A person acts knowing ly 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 terms have the

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

his/her conduct is of that nature. You must determine whether the defend ant 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 reflected in the

evidence you have heard and seen in this cas e. That is, you must be convinced beyond a

reasonable doubt that the defenda nt in this case was aware that he/she had a (rifle)(shotgun) in

his/her possession.

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 per son must know or be aware that he/she possesses the item in this case a

(rifle)(shotgun), and he/she must know what it is t hat he/she possesses or controls that it is a

(rifle)(shotgun).

[Where applicable charge the following: this possession cannot merely be a passing

control that is fleeting or uncertain in its nature.

4] 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.

A person may possess a (rifle)(shotgun) 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, control

over it.

4 If issue of temporary possession see N.J.S.A. 2C:39-5(g)(1)(2).

UNLAWFUL POSSESSION OF A RIFLE OR SHOTGUN

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

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 character and knowingly has it on his/her person at a given

time.

CONSTRUCTIVE POSSESSION

Possession may be constructive instead of actual. As I just stated, a person w ho, 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 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 Appropriate5]

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

in itself, without mo re, 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.

6 Such evidence can include, but is not limited

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

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).

UNLAWFUL POSSESSION OF A RIFLE OR SHOTGUN

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

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/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].

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

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 possession of

an item, possession is joint.

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

did not have a valid firearms purchaser identification card. If you find that the defendant

knowingly possessed the (rifle)(shotgun), and that there is no evidence that defendant had a valid

firearm purchaser identification card, then you may infer ,

9 if you think it appropriate to do so

based upon the facts presented, that defendant had no such firearms purchaser identification card.

Note, however, that as with all other elements, the State bears the burden of showing beyond a

reasonable doubt the lack of a valid firearms identification card, and you may apply the inference

only if you feel it appropriate to do so under all the facts and circumstances.

If you find that the State has failed to prove any one of the elements of the crime beyond

a reasonable doubt, your verdict must be "not guilty."

If, on the other hand, you find that the State has proven all of the elements of the crime

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.

9 See N.J.S.A. 2C:39-2(b). If issue is possession of a firearm by multiple occupants of a vehicle,

see N.J.S.A. 2C:39-2(a). See also State v. Ingram, 98 N.J. 489, 497-500 (1985).

UNLAWFUL POSSESSION OF A RIFLE OR SHOTGUN

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

beyond a reasonable doubt all of the elements, your verdict must be "guilty."