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

Revised 2/9/09

POSSESSION OF CERTAIN WEAPONS

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

Count _____ of the indictment charges defendant with the offense of possession of a

(weapon specified in charge). In pertinent part, the indictment alleges that:

[READ COUNT OF INDICTMENT, OMITTING “WITHOUT ANY EXPLAINABLE

LAWFUL PURPOSE” LANGUAGE, IF ANY1]

The statute that defendant is accused of violating states that: “[a] ny person who

knowingly has in his possession any gravity knife, switchblade knife, dagger, dirk, stiletto, billy,

blackjack, metal knuckle, sandclub, slingshot, cestus or similar leather band studded with metal

filings or razor blades imbedded in wood, ballistic knife . . . is guilty of a crime[.]”2

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

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

1. That (Exhibit S-____) (the object in question) is/was a (specified weapon);

and

2. That defendant knowingly possessed (Exhibit S-____) (the object in question).

The first element that the State must prove beyond a reasonable doubt is that (Exhibit S -

____) (the object in question) is a (weapon specified in the charge).3

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

knowingly possessed (Exhibit S -____) (the object in question) at the time and place alleged.

Here, the State alleges (set forth allegations).

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

1 See generally, State v. Lee , 96 N. J. 156 (1984); State v. Blaine , 221 N.J. Supe r. 66 (App. Div.

1987) in which affirmative defense of explainable lawful purpose has been applied.

2 The list of weapons specified in the text of N.J.S.A . 2C:39-3e (gravity knife, switchblade knife,

dagger, etc.) is complete. Possession of a different type of knife or weapon even if dangerous or used

unlawfully is not an offense under N.J.S.A. 2C:39-3e [but might be violative of other statutory provisions

such as N.J.S.A . 2C:39-4d (possession of a weapon for an unlawful purpose) or N.J.S.A . 2C:39-5d

(unlawful possession of a weapon).]

3 The weapons statute provides specific definitions for three of the weapons mentioned in N.J.S.A .

2C:39-3e. See N.J.S.A. 2C:39-1h for “gravity knife,” N.J.S.A . 2C:39-1p for “switchblade knife,” and

N.J.S.A. 2C:39-1u for “ballistic knife.” A standard dictionary definition should be used for instructi onal

purposes whenever an indictment alleges possession of another type of weapon (dagger, dirk, stiletto,

etc.) prohibited by N.J.S.A. 2C:39-3e.

POSSESSION OF CERTAIN WEAPONS

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

respect to a result of the conduct if he/she is aware that it is p ractically certain that the conduct

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 st ate of mind when

he/she did a particular thing. It is within your power to find that such proof has been furnished

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, the person must know or be aware that he/she possessed the item, here a (specified

weapon). The State was not required to prove that, at the time that he/she knowingly possessed

the (specified weapon), defendant also knew that it was a prohibited weapon.4

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 property, 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 exercis e control over a thing,

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

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

POSSESSION OF CERTAIN WEAPONS

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

The law recognizes that possession may be sole or joint. If one person alone has actual or

constructive possession of a thing, posses sion 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.5

[CHARGE IF AFFIRMATIVE DEFENSE OF “EXPLAINABLE

LAWFUL PURPOSE” IS RAISED]6

During this trial, evidence has been presented that would show that defendant may have

had an explainable lawful purpose for his/her possession of ( Exhibit S-___) (the weapon).

Defendant maintains that [insert explainable lawful purpose asserted b y defendant] and has

proffered [insert testimony/evidence offered in support of that explanation]. It is for you the

jurors to consider and weigh this evidence.

The burden of disproving or negating the explanation lies with the State. In order to find

defendant guilty, the State must prove beyond a reasonable doubt that defendant’s possession of

(Exhibit S-___) (the weapon) was without any explainable lawful purpose. 7 If the State has

proved beyond a reasonable doubt that defendant’s possession of ( Exhibit S-___) (the weapon)

was without any explainable lawful purpose, you must return a verdict of guilty. On the other

hand, if you find that the State has failed to prove this beyond a reasonable doubt, you must

return a verdict of not guilty.

[RESUME CHARGE IN ALL CASES:]

5 If the weapon was found in a vehicle, the jury should be instructed on the permissive inference of

possession allowed by N.J.S.A . 2C:39-2a. See State v. Bolton , 230 N.J. Super. 476, 480-81 (App. Div.

1989) (construing the statutory presumption in N.J.S.A. 2C:39-2a to permit only an inference for the

jury's consideration). See also N.J.R.E. 303 (“presumptions against the accused in criminal cases”).

6 See generally, State v. Lee , 96 N.J . 156 (1984); State v. Blaine , 221 N.J. Super . 66 (App. Div.

1987).

7 The prohibited weapons statute expressly exempts military pe rsonnel and law enforcement

officers from the proscriptions of N.J.S.A. 2C:39-3e if possession of the prohibited weapon is authorized

under law, regulations or military/law enforcement orders. See N.J.S.A. 2C:39-3g. The confiscation,

seizure or other possession of a prohibited weapon by a law enforcement officer acting on his/her duty is

also exempted, provided that the officer promptly notifies a superior of his possession of the prohibited

weapon.

An additional exemption applies to the possession of a nightstick by a guard in the employ of a

private security company, provided that (1) the guard possessed the nightstick when in the actual

performance of his official duties; (2) the guard is licensed to carry a firearm; and (3) the guard has

satisfactorily completed a training course in the use of a nightstick approved by the Police Training

Commission. See N.J.S.A. 2C:39-3i. In matters where any of the above exemptions are asserted by the

defense, instructions on these provisions, as applicable, should be given to the jury.

POSSESSION OF CERTAIN WEAPONS

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

To sum up, i f the State has proven both elements of this crime beyond a reasonable

doubt, [CHARGE IF APPROPRIATE:] [and has further proven beyond a reasonable doubt

that defendant’s possession of (Exhibit S-___) (the weapon) was without any explainable lawful

purpose,] then you must find defendant guilty of possession of a prohibited weapon. On the

other hand, if the State has failed to prove either element beyond a reasonable doubt, [CHARGE

IF APPROPRIATE:] [or has failed to disprove the defense of explainable lawful purpose,] you

must find him/her not guilty.