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

Revised 5/13/13

POSSESSION OF PROHIBITED WEAPONS AND DEVICES

(Dum-dum, hollow nose bullets or body armor penetrating bullets)1

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

Count of the indictment charges the defendant as follows:

(Read Indictment)

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

Except as authorized by statute, it shall be unlawful for any person

knowingly to possess any (hollow nose or dum -dum bullet) [or]

(body armor breaching or penetrating ammunition).

The statute, read together w ith the indictment, identifies the elements which the State

must prove beyond a reasonable doubt to establish guilt of the defendant on this (count of the)

indictment. They are as follows:

In order to convict defendant of this offense, you must be satisf ied that the State has

proved each of the following two elements beyond a reasonable doubt:

1. That Exhibit S-____ is (a hollow nose or dum-dum bullet)[or](body armor

breaching or penetrating ammunition).

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

ammunition).

(CHARGE AS APPLICABLE)

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

“hollow nose bullet or dum -dum bullet” can be a cartridge of any caliber in which the front

portion of the projectile is designed to expand upon entering a target. The jacket metal does not

cover the entire bullet and an area near the nose is left uncovered. There is a pit or hollow

1 The statu te contains certain exemptions including : (1) a law enforcement officer or persons

engaged in activities pursuant to subsection f. of N.J.S.A. 2C:39-6 who has in his possession any hollow

nose or dum -dum bullet; or ( 2) a collector of firearms or am munition as curios or relics as defined in

Title 18, United States Code, section 921(a)(13), and who has in his possession a valid Collector of

Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who possesses body

armor breaching or penetrating ammunition. A collector may possess not more than three examples of

each distinctive variation of body armor breaching or penetrating ammunition. There are also exemptions

found in N.J.S.A . 2C:39-3(g)(1), (g)(2), and (g)(3). If those d efenses 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.

POSSESSION OF PROHIBITED WEAPONS AND DEVICES

(Dum-dum, hollow nose bullets or body armor penetrating bullets)

N.J.S.A. 2C:39-3f

present in the front of the nose.2

[or]

In regard to t he first element that the State must prove beyond a reasonable doubt , body

armor penetrating bullets means (a) ammunition primarily designed for use in a handgun, and (b)

which is comprised of a bullet whose core or jacket, if the jacket is thicker than .025 of an inch,

is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72

or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or

penetrating body armor. Body armor is bullet -resistant material intended to provide ballistic and

trauma protection.

3

(RESUME MAIN CHARGE)

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

defendant knowingly possessed S in evidence.4 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 conduc t

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 direct

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 thing. It is within your power to find that such proof has been furnished

2 People v. Lanham, 230 Cal. App. 3d 1396, 1399, 282 Cal. Rptr. 62 (Cal. Ct. of Appeal 1991) for

expert testimony on the definition of hollow nose bullets.

3 N.J.S.A. 2C:39-13.

4 If in a motor vehicle, see N.J.S.A. 2C:39-2. Use “inference” instead of “presumption”. State v.

Ingram, 98 N.J. 489 (1985); State v. Bolton, 230 N.J. Super. 476, 480 (App. Div. 1989). Comment 2

N.J.R.E. 301 and 303.

POSSESSION OF PROHIBITED WEAPONS AND DEVICES

(Dum-dum, hollow nose bullets or body armor penetrating bullets)

N.J.S.A. 2C:39-3f

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 and place and from all

surrounding circumstances established by the evidence.

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

alleged to be ammunition. The State [is] not require d to prove that, at the time that he/she

knowingly possessed the ammunition, defendant also knew that it was ( hollow nose or dum-dum

bullet(s))[or](body armor breaching or penetrating ammunition).5

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.

When we speak of possession, we mean a conscious, knowing possession. The law

recognizes two kinds of possession: actual possession and constructive 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. 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 person does not physically have

the pr operty, but he/she is aware of the presence of the property and is able to and has the

intention to exercise control over it.

A person who, although not in actual possession, has knowledge of its character,

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.

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.

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

5 State v. Smith, 197 N.J. 325, 338 (2009).

POSSESSION OF PROHIBITED WEAPONS AND DEVICES

(Dum-dum, hollow nose bullets or body armor penetrating bullets)

N.J.S.A. 2C:39-3f

must find defendant guilty . On the other hand, if the State has failed to prove any element

beyond a reasonable doubt, you must find him/her not guilty.

To reiterate, the two elements of this offense are that:

1. S in evidence is (a hollow nose or dum -dum

bullet)[or](body armor breaching or penetrating ammunition).

2. The defendant knowingly possessed S

in evidence.

If you find that the State had proven all these elements beyond a reasonable doubt, then

you must return a verdict of guilty. On the other hand, if you find that the State has failed to

prove any of these elements beyond a reasonable doubt, then you must return a verdict of not

guilty.