N.J. Model Criminal Jury Charge, N.J.S.A. 2C:39-7a

Revised 11/13/23

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS1

N.J.S.A. 2C:39-7(a)

NOTE

[The following should be charged before the beginning of the second trial if it is tried

before the same jury that decided the possessory charge of a weapon or firearm]

Now there is an additional charge for you to consider.

Count _____ charges the defendant with possession of a __________________ by a

previously convicted person.

(Read Certain Persons count of the Indictment)2

You must disregard completely your prior verdict and consider anew the evidence

previously admitted on the possession of a weapon. The defendant is entitled to the presumption

of innocence. Each and every material fact that makes up the crime, including the element of

possession, must be proven by the State beyond a reasonable doubt.3

[CHARGE IN ALL CASES]

Count ________of the indictment charges defendant with violating a statute which reads

as follows:

[Select the appropriate section of the statute from below]

Any person having been convicted in this State or elsewhere of certain

enumerated offenses4] OR [a predicate offense]5 who purchases, owns,

1 This charge should be used when the indictment charges a fourth-degree crime involving the possession

of a prohibited weapon under N.J.S.A. 2C:39-7(a).

2 If defendant is stipulating to the predicate offense, do not read the crime listed in the Certain Persons

count.

3 See State v. Ragland, 105 N.J. 189, 195 (1986).

4 The crimes set forth in the statute include the commission or an attempt or conspiracy to commit

aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual

assault, sexual assault, bias intimidation in violation of N.J.S.A. 2C:16 -1, carjacking in violation N.J.S.A.

2C:15-2, gang criminality in violation of N.J.S.A. 2C:33-29, racketeering in violation of N.J.SA. 2C:41-2,

terroristic threats in violation of N.J.S.A. 2C:12 -3, unlawful possession of a machine gun in violation of

subsection a. of N.J.S.A. 2C:39 -5, unlawful possession of a handgun in violation o f paragraph (1) of

subsection b. of N.J.S.A. 2C:39-5, unlawful possession of an assault firearm in violation of subsection f. of

N.J.S.A. 2C:39-5, leader of a firearms trafficking network in violation of N.J.S.A. 2C:39-16, or endangering

the welfare of a child pursuant to N.J.S.A. 2C:24-4, whether or not armed with or possessing any weapon

enumerated in subsection r. of N.J.S.A. 2C:39-1, or the commission or an attempt or conspiracy to commit

possession of a prohibited weapon, N.J.S.A. 2C:39 -3, possession o f a weapon for an unlawful purpose,

N.J.S.A. 2C:39 -4, or manufacturing, transporting, disposition or defacement of weapons, dangerous

instruments and appliances, N.J.S.A. 2C:39-9, or any person convicted of other than a disorderly persons

or petty disorder ly persons offense for the unlawful use, possession or sale of a controlled dangerous

substance as defined in N.J.S.A. 2C:35-2. When a defendant does not stipulate to a predicate offense under

the certain persons statute, the State shall produce evidence of the predicate offense: the judgment of

conviction with the unredacted nature of the offense, the degree of offense, and the date of conviction. See

State v. Bailey, 231 N.J. 474 (2018).

5 See State v. Brown, 180 N.J. 572, 585 (2004) (if defendant stip ulates to the offense, the jury must be

instructed only that defendant was convicted of a predicate offense.) Defendant’s stipulation must be a

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

N.J.S.A. 2C:39-7(a)

possesses or controls any weapon as set out in subsection r. of N.J.S.A.

2C:39-1 is guilty of a crime.

[or]

Any person who has ever been committed for a mental disorder to any

hospital, mental institution or sanitarium unless he possesses a

certificate of a medical doctor or psychiatrist licensed to practice in New

Jersey or other satisfactory proof that he is no longer suffering from a

mental disorder which interferes with or handicaps him in the handling

of a firearm, who purchases, owns, possesses or controls any weapon as

set out in subsection r. of N.J.S.A. 2C:39-1 is guilty of a crime.

In order for you to find defendant guilty, the State must prove each of the following

elements beyond a reasonable doubt:

1. Exhibit_______ is a weapon [or that there was a weapon].

2. Defendant purchased, owned, possessed or controlled the weapon

[on the date alleged in the indictment].

[Choose appropriate]

3. Defendant is a person who previously has been convicted of [a

certain enumerated crime named in the statute] OR [a predicate

offense].

[or]

3. Defendant is a person who previously has been committed for a

mental disorder to any hospital, mental institution or sanitarium.

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

a weapon [or that there was such a weapon]. A weapon means anything readily capable of lethal

use or of inflicting serious bodily injury. 6 [At this point, if the weapon alleged in the indictment

is a specific weapon which is defined in a subsection of N.J.S .A. 2C:39-1, then you should read

that definition to the jury]. [Additionally, if appropriate, read the following passage: Some

objects that may be used as weapons also have more innocent purposes. Where the object is

knowing and voluntary waiver of rights, placed on the record in defendant’s presence; the prosecution is

limited to announcing to the jury that the defendant has committed an offense that satisfies the statutory

predicate-offense element. See Bailey, supra; see also State v. Alvarez, 318 N.J. Super. 137, 150-54 (App.

Div. 1999) (defendant’s offer to stipulate that his or her prior convictions meet the status element of N.J.S.A.

2C:39-7 must be granted). Accord State v. Harvey, 318 N.J. Super. 167, 173 (App. Div. 1999).

6 N.J.S.A. 2C:39-1(r). See remainder of N.J.S.A. 2C:39 -1(r) for a more detailed definition of the term

“weapon.”

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

N.J.S.A. 2C:39-7(a)

capable of both innocent and unlawf ul purposes, the circumstances attending its possession may

be considered by you. “More specifically, the size, shape and condition of the object, whether it

was concealed, and the time, place and actions of [defendant] are material circumstances in

determining when the particular implement constitutes a weapon under the provisions of this

statute.”7]

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

knowingly8 purchased, owned, possessed or controlled a weapon. A perso n acts knowingly with

respect to the nature of his conduct or the attendant circumstances if he 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 is aware that

it is practically 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 had a certain state of mind when he 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 acts and conduct and from

all he said and did at the particular time and place and fr om all surrounding circumstances

established by the evidence.

To possess9 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 [identify relevant

item(s)] must know or be aware that he possesses it, and he must know what it is that he possesses

or controls, [that it is a __________]

[Where applicable charge the following: Possession cannot merely be a passing control,

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 control thereof

7 State v. Jones, 198 N.J. Super. 553, 564-65 (App. Div. 1985).

8 N.J.S.A. 2C:2-2(c)(3) applies the culpable state of mind of knowingly, pursuant to N.J.S.A. 2C:2-2(b)(2),

to this statutory crime.

9 N.J.S.A. 2C:2-1. Additionally, charge any applicable and appropriate statutory inferences. For example,

see N.J.S.A. 2C:39-2, which creates certain statutory inferences when a weapon is found in a motor vehicle.

See also, N.J.R.E. 303.

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

N.J.S.A. 2C:39-7(a)

for a sufficient period of time to have been able to relinquish his control if he chose to do so.

A person may possess ___________(an item) even though it was not physically on his

person at the time of the arrest, if he had in fact, at some time prior to his arrest, had control over

it.

Possession means a conscious, knowing possession, either actual or constructive.

[CHARGE THE FOLLOWING PARAGRAPHS WHICH APPLY TO CASE]

ACTUAL POSSESSION

A person is in actual possession of a particular article or thing when he first, knows what

it is; that is, he has knowledge of its character, and second, knowingly has it on his person at a

given time.

CONSTRUCTIVE POSSESSION10

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 a thing, 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 the possessor’s 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 Appropriate11]

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 w as 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.

10 In State v. Spivey, 179 N.J. 229 (2004), the Supreme Court affirmed a conviction under N.J.S.A. 2C:39-

4.1(a), possession of a firearm while committing certain drug offenses, and noted that the statute suggested

a tempor al and spatial link between possession of the firearm and the drugs. The Court ruled that the

evidence “must permit the jury to infer that the firearm was accessible for use in the commission of the

[drug] crime.” In the appropriate case, the possession charge may be supplemented by this language.

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

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

N.J.S.A. 2C:39-7(a)

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

doubt that the defendant had possession of the [contraband] unless there are other circumstance(s)

tending to permit such an inference to be drawn. 12 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; the defendant’s proximity

to the place where the [contraband] was/were found; the defendant’s 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 the defendant’s person or property when the [contraband] was/were found; [any other evidence

deemed part of the totality of circumstances]. 13

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.14]

JOINT POSSESSION

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 knowing

possession of an item, possession is joint.

[Choose the appropriate next paragraph from the following three]

[If defendant does not stipulate to the predicate offense(s), use the following paragraph]

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

person who previously has been convicted of a certain enumerated crime. The statute specifically

provides that “any person having been convicted in this State or elsewhere of the crime of [select

the enumerated crime listed in the indictment for the Cert ain Persons count and see footnote 4

supra] who possesses or controls any weapon readily capable of lethal use or of inflicting serious

bodily injury (see footnote 6 supra) is guilty of a crime.” The term “convicted of the crime(s) of

12 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).

13 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.

14 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.

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

N.J.S.A. 2C:39-7(a)

...” means evidence of a judgment of conviction 15 entered by a court of competent jurisdiction in

this State, New Jersey, or elsewhere.16 [Read if appropriate: If defendant has been convicted in

another state, territory, commonwealth or other jurisdiction of the United States, or any country in

the world, in a court of competent jurisdiction, of a crime which in said other jurisdiction or country

is comparable to the crime(s) of ____________________, then defendant is subject to the

provisions of this statute. 17] Here, the S tate has introduced evidence that the defendant was

previously convicted of [specify unredacted nature of offense, degree, and date of conviction].

[or]

[Where defendant does stipulate to the predicate offense, use the following]

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

person who previously has been convicted of a crime named in the statute or [of the predicate

offense]. In this matter, the parties have stipulated, or agreed, that defendant has previously been

convicted of such a crime [or a predicate offense]. You are instructed as follows with regard to

the stipulation: that you should treat these facts as being undisputed, that is, the parties agree that

these facts are true. As with all evidence, undisputed facts can be accepted or rejected by the jury

in reaching a verdict.

[or]

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

person who has ever been committed for a mental disorder to any hospital, mental institution or

sanitarium unless defendant possesses a certificate of a medical doctor or psychiatrist licensed to

practice in New Jersey or other satisfactory proof that he is no longer suffering from a mental

disorder which interferes with or handicaps him in the handling of a firearm.

[Charge in all cases]

Normally evidence [of defendant’s prior conviction(s)] or [of the predicate offense(s)] is

not permitted under our rules of evidence. This is because our rules specifically exclude evidence

that a defendant has committed prior crimes when it is offered only to show that he has a

15 In New Jersey Superior Court, this document is known as a Judgment of Conviction. However, in

Municipal Courts throughout this state and in other jurisdictions, the name of the document may vary.

16 When a defendant does not stipulate to a predicate offense under the certain persons statute, the State

shall produce evidence of the predicate offense: the judgment of conviction with the unredacted nature of

the offense, the degree of offense, and th e date of conviction. See Bailey, supra. The court should redact

from the Judgment of Conviction any information not relevant to what the Bailey holding permits.

17 N.J.S.A. 2C:39-7(c).

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

N.J.S.A. 2C:39-7(a)

disposition or tendency to do wrong and therefore must be guilty of the present offense. However,

our rules do permit evidence of prior crimes when the evidence is used for some other purpose.18

In this case, the evidence has been introduced for the specific purpose of establishing an

element of the present offense. 19 You may not use this evidence to decide that defendant has a

tendency to commit crimes or that he is a bad person. That is, you may not decide that, just because

the defendant has committed [a] prior crime[s], he must be guilty of the present crime[s]. The

evidence produced by the State concerning [a] prior conviction[s] is to be considered in

determining whether the State has established its burden of proof beyond a reasonable doubt.20

[Charge if applicable (where the same jury has already convicted the defendant of another

possessory weapons offense or offenses – a bifurcated trial situation):21

On the issue of possession, although you may consider evidence previously introduced, the

State must prove beyond a reasonable doubt that defendant possessed the [firearm] [weapon] before

you may find the defendant guilty on this charge. In deciding whether the State has carried its burden

of proof, you must set aside your previous verdict on this question and begin your deliberations

anew.22]

[Charge in all cases]

In summary, the State must prove three elements beyond a reasonable doubt - first, that

exhibit _________is a weapon (or that there was a weapon); second, that defendant knowingly

purchased, owned, possessed or controlled the weapon on __________ [the date alleged in the

indictment]; and third, [choose the appropriate phrase:]

[that defendant is a person who previously has been convicted of [a certain enumerated crime

named in the statute] [or] [of the predicate offense]].

[OR]

[that defendant is a person who previously has been committed for a mental disorder to any

hospital, mental institution or sanitarium and does not possess a certificate of a medical doctor or

18 See State v. Marrero, 148 N.J. 469, 495-96 (1997); State v. Cusick, 219 N.J. Super. 452, 466-67 (App.

Div. 1987) (cited in State v. Oliver, 133 N.J. 141, 158 (1993)).

19 If defendant testifies, this portion of the charge should be altered.

20 Brown, 180 N.J. at 583 (absence of information about all of the elements of the crime might cause the

jury to question the criminality of the defendant’s conduct, and in turn influence the jury when it considers

the possession element.)

21 The defendant may affirmatively request that this charge not be given. Alvarez, 318 N.J. Super. at 155.

22 Alvarez, 318 N.J. Super. at 154-55.

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

N.J.S.A. 2C:39-7(a)

psychiatrist licensed to practice in New Jersey or other satisfactory proof that he is no longer

suffering from a mental disorder which interferes with or handicaps him in the handling of a

firearm.]

If you find that the State has proven beyond a reasonable doubt each of these elements,

then you must find the defendant 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 find the defendant not

guilty.