Unlawful Possession of a Handgun

Revised 2/26/01

UNLAWFUL POSSESSION OF A HANDGUN

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

Defendant(s) is charged in count with unlawful possession of a handgun. The statute upon which this count is based reads as follows:

Any person who knowingly has in his possession 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; (OR) 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 beyond a reasonable doubt is that S (or that there) was a handgun. Under our law,

(CHOOSE ONE)

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]

(OR)

a handgun is any pistol, revolver or other firearm in the nature of an air gun, spring gun or pistol of 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, which was originally designed or manufactured to be fired by the use of a single hand and to eject a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.[2]

The second element that the State must prove beyond a reasonable doubt is that the defendant knowingly possessed the handgun.

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 if (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to the result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result.

Knowledge is a condition of the mind that cannot be seen and that can be determined only by inferences from 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) engaged in a particular act. 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 the defendant’s acts and conduct, from all that (he/she) said and did at the particular time and place, and from all surrounding circumstances.

[CHARGE JOINT, CONSTRUCTIVE AND ACTUAL POSSESSION AS APPROPRIATE, ALSO CHARGE ANY APPLICABLE AND APPROPRIATE STATUTORY INFERENCE.]

POSSESSION

The word “possess” as used in criminal statutes signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character. Thus, the defendant must know or be aware that (he/she) possessed the handgun, and the defendant must know what it is that (he/she) possesses or controls is a handgun. This 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 handgun possessed or be aware of (his/her) control thereof for a sufficient period of time to have been able to relinquish control if (he/she) chose to do so. A person may possess a handgun even though it was not physically on (his/her) person at the time of the arrest, if the person had in fact, at some time prior to (his/her) arrest, had control and dominion over it. When we speak of possession, we mean a conscious, knowing possession. The law recognizes two kinds of possession: they are actual possession and constructive possession.

ACTUAL POSSESSION

A person is in actual possession of a handgun when (he/she) knows what it is; that is, the person has knowledge of its character and knowingly has it on (his/her) person at a given time.

CONSTRUCTIVE POSSESSION

The law recognizes that possession may be constructive instead of actual. Constructive possession means possession in which the person does not physically have the handgun, but though not physically on one’s person, (he/she) is aware of the presence of the handgun and is able to exercise intentional control or dominion 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 handgun, either directly or through another person or persons, is then in constructive possession if it.

JOINT POSSESSION

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.[3]

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.[4] Note, however, that as with all other elements, the State bears 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 all of the elements of the crime beyond a reasonable doubt, your verdict must be “guilty.”



[1] See State v. Harmon, 203 N.J. Super. 216, 228 (App. Div. 1985), rev’d on other grounds, 104 N.J. 189 (1986) as to whether a particular device possessed or retained the characteristics of a firearm.

[2] Also see State v. Mieles, 199 N.J. Super. 29 (App. Div.), certif. denied, 101 N.J. 265 (1985), which held that a BB gun is a firearm under this statute.

[3] If appropriate, charge statutory inferences relating to possession of firearms in a vehicle and the absence of evidence of a permit. See N.J.S.A. 2C:39-2.

[4] If appropriate, see Evid. R. 803(c)(10) and State v. Ingram, 98 N.J. 489 (1985), regarding absence of a permit.