N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-4.1a

Approved 3/22/04

POSSESSION OF FIREARM WHILE COMMITTING CERTAIN

DRUG CRIMES

(N.J.S.A. 2C:39-4.1a)

[Defendant] is charged with possessing a firearm while in the course of committing,

attempting to commit, or conspiring to commit a violation of certain laws.1 This charge is based on

a statute which reads:

Any person who has in his possession any firearm 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:

2

1. That there was a firearm.

2. That [defendant] possessed the firearm.

3. That, at the time alleged in the indictment, [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

firearm. A firearm means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic

rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected

any solid projectable ball, slug, pellet, missile or bullet, or any gas vapor or other noxious thing, by

means of a cartridge or sh ell or by the action of an explosive or the igniting of flammable or

explosive substances.

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

1 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; N.J.S.A. 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.

2 In State v. Harrison , 358 N.J. Super. 578, 584 (App. Div. 2003), the court held that, so long as

defendant had constructive possession of a weapon, a conviction under this statute will stand, even though

physical proximity between defendant and the drugs and weapon was lacking. Certification of this matter was

granted by the Supreme Court, sub nom State v. Spivey, 177 N.J. 495 (2003).

POSSESSION OF FIREARM WHILE

COMMITTING CERTAIN DRUG CRIMES

N.J.S.A. 2C:39-4.1a

possessed the firearm. 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/she possessed the firearm, and he/she must have

known that what he/she possessed was a firearm. 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 firearm or must have been aware of his/her control of it for

a sufficient period of time to have been able to relinquish control if he/she chose to do so. 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/she is aware of

the high probability of their existence. A person acts knowingly as to a result of his conduct if he/she

is aware that it is practically certain that his/her 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/her person at the time if he/she had in fact at some time prior to

his/her arrest control over it.

Possession may be either actual or constructive. A person is in actual possession of an item if

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. Alter natively, 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/her person, he/she is aware of the presence of the

property and is able to and has the intention to exercise control 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.

POSSESSION OF FIREARM WHILE

COMMITTING CERTAIN DRUG CRIMES

N.J.S.A. 2C:39-4.1a

[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].

“Knowingly” 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/she engaged

in the conduct with which he/she is charged. You may find that pr oof of “knowingly” 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 third element that the State must prove beyond a reasonable doubt is that [defendant]

possessed the firearm while he/she was in the course of committing, attempting to commit, or

conspiring to commit the crime of . 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 . The term “attempting to commit”

means that, at the time [defendant] possessed the weapon, he/she was also purposely engaged in

conduct which would constitute [the stated drug crime] , if the attendant

circumstances were as a reasonable person would believe them to be; or doing anything with the

purpose of causing the result which is a specific element of [the stated drug crime]

, or purposely doing anything which, under the circumstances as a reasonable person would

believe them to be, is an act or omission constituting a substantial step in a course of conduct

planned to culminate in his commission of that crime.

3

The term “conspiring to commit” means that, at the time [defendant] possessed the weapon,

he/she also had the purpose of promoting or facilitating the commission of [the stated drug crime]

and either (1) agreed with another person or persons that they or one or more

of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit

3 See Model Jury Charge, Attempt and N.J.S.A. 2C:5-1(a).

POSSESSION OF FIREARM WHILE

COMMITTING CERTAIN DRUG CRIMES

N.J.S.A. 2C:39-4.1a

such crime, or (2) agreed to aid another person or persons in the planning or commission of such

crime or of an attempt or solicitation to commit such crime.4

If the State has proven each of the elements of this offense beyond a reasonable doubt,

[defendant] must be found guilty of this charge. However, if the State has failed to prove, beyond a

reasonable doubt, any one of the elements of this offense, you must find him/her not guilty of this

charge.

4 See Model Jury Charge, Conspiracy and N.J.S.A. 2C:5-2(a).