N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-5b

Revised 6/11/18

UNLAWFUL POSSESSION OF A HANDGUN

(SECOND DEGREE)

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

Defendant(s) is charged in with Unlawful Possession of a H andgun. The statute upon

which this count is based reads, in pertinent part, as follows:

Any person who knowingly has in his pos session any handgun . . .

without first having obtained a permit to carry the same . . . is

guilty of a crime.

In order to convict the defendant, the State must prove each of the following elements

beyond a reasonable doubt:

1. S-___ is a handgun (CHARGE IF APPROPRIATE : That there was a

handgun);

2. That the defendant knowingly possessed the handgun; and

3. That the defendant did not have a permit to possess such a weapon.

The first element that the State must prove b eyond a reasonable doubt that ( CHOOSE

APPROPRIATE (S-__ is a handgun)( there was a handgun ). Under our law, a handgun is any

pistol, revolver or other firearm originally designed or manufactured to fire or eject any solid

projectile, ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means

of a cartridge or shell or by action of an explosive or the igniting of flammable or explosive

substances by the use of a single hand.1

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

defendant knowingly possessed the handgun.

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.

1 N.J.S.A. 2C:39-1(f) and N.J.S.A. 2C:39-1(k).

UNLAWFUL POSSESSION OF A HANDGUN

(Second Degree)

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

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 circu mstances 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 se en. 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.

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 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

Possession may be constructive instead of actual. As I just stated, 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 a nd 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,

UNLAWFUL POSSESSION OF A HANDGUN

(Second Degree)

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

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

item.

[MERE PRESENCE – Read if Appropriate2]

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 tha t 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 defendan t 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. 3 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 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].4

In summary, the State m ust 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.5]

JOINT POSSESSION

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

3 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).

4 State v. Randolph, supra, 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.

5 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.

UNLAWFUL POSSESSION OF A HANDGUN

(Second Degree)

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

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.

(RESUME MAIN CHARGE - CHARGE IN ALL CASES)

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

defendant did not have a permit to possess such a handgun. If you find that the defendant

knowingly possessed the handgun, and that there is no evidence that defendant had a valid permit

to carry such a handgun, then you may infer, if you think it appropriate to do so based upon the

facts presented, that defendant had no such permit. 6 Note, however, that as with all other

elements, the State be ars the burden of showing, beyond a reasonable doubt, the lack of a valid

permit and that you may draw 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 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.

6 If appropriate, see N.J.R.E. 803(c)(10) and State v. Ingram, 98 N.J. 489 (1985), regarding absence

of a permit.