N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-4(a)

Revised 10/22/18

POSSESSION OF A FIREARM WITH A PURPOSE TO USE IT UNLAWFULLY

AGAINST THE PERSON OR PROPERTY OF ANOTHER

N.J.S.A. 2C:39-4(a)

The count of the Indictment charges the defendant,

, with the crime of possession of a firearm with a purpose to use it

unlawfully against the person or property of another. The statute on which this count of the

Indictment is based reads in pertinent part:

Any person who has in his possession any firearm with a purpose

to use it unlawfully against the person or property of another is

guilty of a crime.

In order for you to find the defendant guilty of this charge, the State has the burden of

proving beyond a reasonable doubt each of the following four elements of this crime:

1. Exhibit is a firearm. (or, there was a firearm)

2. Defendant possessed the firearm.

3. Defendant possessed the firearm with the purpose to use it against the

person or property of another.1

4. Defendant's purpose was to use the firearm unlawfully.

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

is a firearm (or, that there was a firearm).

A "firearm" means any handgun, 2 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 shell or by the action of an explosive or the igniting of

1 The person/property distinction is not an element of the crime and need not be specifically

determined by the jury verdict. State v. Camacho, 153 N.J. 54, 69, 72 (1998). The court, therefore should

not inquire of the jury through a special interrogatory whether its verdict distinguishes between person or

property. Ibid. Rather, the person/property distinction is relevant for sentencing purposes only, not for

obtaining a conviction. Ibid . If the State elects to proceed on only one theory, either person or property,

then the court should only instruct the jury on the theory elected throughout the charge. If both theories

are alleged, then the court should include the p hrase “against the person or property of another”

throughout the charge.

2 Handgun means any pistol, revolver or other firearm originally designed or manufactured to be

fired by the use of a single hand. N.J. S.A. 2C:39-1(k). The handgun need not be presently operable. State

v. Gantt, 101 N.J. 573 (1986).

POSSESSION OF A FIREARM WITH A PURPOSE

TO USE IT UNLAWFULLY AGAINST THE PERSON

OR PROPERTY OF ANOTHER

N.J.S.A. 2C:39-4(a)

flammable or explosive substances. It shall also include, without limitation, any firearm which is

in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the

propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or

compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than

three-eighths of an inch in diameter, with sufficient force to injure a person.

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

possessed the firearm.

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

__________________). [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/she 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 the

conduct will cause such 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

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.

POSSESSION OF A FIREARM WITH A PURPOSE

TO USE IT UNLAWFULLY AGAINST THE PERSON

OR PROPERTY OF ANOTHER

N.J.S.A. 2C:39-4(a)

A person may possess ___________________ (an item) even though 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 THEY 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

The law recognizes that possession may be constructive instead of actual. 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.

[MERE PRESENCE – Read if Appropriate3]

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

in itself, without more, 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

POSSESSION OF A FIREARM WITH A PURPOSE

TO USE IT UNLAWFULLY AGAINST THE PERSON

OR PROPERTY OF ANOTHER

N.J.S.A. 2C:39-4(a)

doubt that he/she had possession of the [cont raband] unless there are other circumstance(s)

tending to permit such an inference to be drawn. 4 Such evidence can include, but is not limited

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

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 ma de 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].5

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.6

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

purpose in possessing the firearm was to use it against the person or property of another. Purpose

is a condition of the mind which cannot be s een and can only be determined by inferences from

conduct, words or acts.

In determining the defendant's purpose in possessing the firearm, you may consider that a

person acts purposely with respect to the nature of his/her conduct or a re sult of his/her conduct

3 State v. Randolph, 228 N.J. 566, 590-93 (2017).

4 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).

5 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.

6 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.

POSSESSION OF A FIREARM WITH A PURPOSE

TO USE IT UNLAWFULLY AGAINST THE PERSON

OR PROPERTY OF ANOTHER

N.J.S.A. 2C:39-4(a)

if it is the person's conscious object to engage in conduct of that nature or to cause such a result.

That is, a person acts purposely if he/she means to act in a certain way or to cause a certain

result. A person acts purposely with respect to attendant circumstances if the person is aware of

the existence of such circumstances or believes or hopes that they exist.

The defendant's purpose or conscious objective to use the firearm against another person

or the property of another may be found to exist at any time he/she is in possession of the object

and need not have been the defendant's original intent in possessing the object.7

The fourth element that the State must prove beyond a reas onable doubt is that the

defendant had a purpose to use the firearm in a manner that was prohibited by law. I have

already defined purpose for you. This element requires that you find that the State has proven

beyond a reasonable doubt that the defendant possessed a firearm with the conscious objective,

design or specific intent to use it against the person or property of another in an unlawful manner

as charged in the indictment, and not for some other purpose.

In this case, the State contends that the d efendant's unlawful purpose in possessing the

firearm was

(Describe the unlawful purpose of defendant’s possession of the weapon)8

You must not rely upon your own notions of the unlawfulness of some other undescribed

purpose of t he defendant; rather, you must consider whether the State has proven the specific

unlawful purpose charged.9 The unlawful purpose alleged by the State may be inferred from all

that was said or done and from all of the surrounding circumstances of this cas e.10 However, the

State need not prove that defendant accomplished his/her unlawful purpose of using the firearm

[or, if appropriate, specifically define the elements of the crime defendant allegedly intended to

7 See, State v. Daniels, 231 N.J. Super. 555 (App. Div. 1989); State v. Harmon, 104 N.J. 189

(1986). Indeed, the State is not required to prove defendant’s original purpose in possessing the f irearm.

State v. Diaz , 144 N.J. 628, 636 (1996); State v. Petties, 139 N.J. 310, 316 (1995). See State v. Villar ,

150 N.J. 503, 512 (1997).

8 State v. Petties, 139 N.J. at 316. See State v. Villar, 150 N.J. at 511.

9 State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989). See State v. Villar, 150 N.J. at 511.

10 State v. Petties, 139 N.J. at 316; State v. Diaz, 144 N.J. at 636.

POSSESSION OF A FIREARM WITH A PURPOSE

TO USE IT UNLAWFULLY AGAINST THE PERSON

OR PROPERTY OF ANOTHER

N.J.S.A. 2C:39-4(a)

commit with the firearm].11

[Charge if applicable:] The defense on the other hand contends that

________________.

[If the defendant raises the issue of protective purpose, charge the following paragraphs]

I have already told you that the State must prove beyond a reasonable doubt tha t

defendant had an unlawful purpose at the time in question. If you find that the defendant had a

lawful purpose, for example, to use the firearm to protect himself/herself or another against the

use of unlawful force, or to protect his/her property, or if you have a reasonable doubt as to the

defendant’s purpose, then the State has failed to carry its burden of proof on this element beyond

a reasonable doubt.12

I instruct you that for purposes of this offense, if de fendant honestly believed that he/she

needed to use a firearm to protect ( himself/herself/another/property), the law does not require

that this belief be reasonable. In other words, if defendant had an honest though unreasonable

belief that he/she needed to use the weapon to protect ( himself/herself/another), this negates the

purposeful mental state required for this offense.

[Choose appropriate]

Later on in the charge, I will instruct you on the concept of self -defense/defense of

another as it applies to the offense(s) of . The concept of self -defense/defense of

another as it applies to those offenses is different than that of protective purpose that applies to

this count of the indictment. When applied to that/those offense(s), self -defense requires

defendant to have both an honest AND a reasonable belief in the need to use force.

OR

Earlier in the charge, I instructed you on the concept of self -defense as it applies to the

offense(s) of . The concept of self -defense/defense of another as it

applies to that/those offense(s) is different than that of protective purpose that applies to this

count of the indictment. When applied to that/those offense(s), self -defense requires a defendant

11 State v. Mello, 297 N.J. Super. 452, 464-67 (App. Div. 1997).

12 State v. Harmon, 104 N.J. at 189.

POSSESSION OF A FIREARM WITH A PURPOSE

TO USE IT UNLAWFULLY AGAINST THE PERSON

OR PROPERTY OF ANOTHER

N.J.S.A. 2C:39-4(a)

to have an honest AND a reasonable belief in the need to use force.13

[Charge in every case]

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

reasonable doubt, your verdict must be not guilty. On the other hand, if you are satisfied that the

State has proven each and every element of the crime beyond a reasonable doubt, your verdict

must be guilty.

13 State v. Williams, 168 N.J. 323 (2001).