Unlawful Possession of a Rifle or Shotgun

Approved 12/11/00

UNLAWFUL POSSESSION OF A RIFLE OR SHOTGUN

N.J.S.A. 2C:39-5c(1)

Defendant(s), , is charged in count _____ with unlawful possession of a (rifle)(shotgun). The pertinent language of the statute the defendant is charged with having violated reads as follows:

Any person who knowingly has in his possession any (rifle)(shotgun) . . . without first having obtained a firearms purchaser identification card … is guilty of a crime.

In order for the State to convict the defendant of this crime, the State must prove beyond a reasonable doubt these three essential elements:

  1. S is a (rifle)(shotgun); (Or there was a (rifle)(shotgun);
  2. The defendant knowingly possessed the (rifle)(shotgun); and
  3. The defendant did not have a valid firearms purchaser identification card.

The first element the State must prove beyond a reasonable doubt is that S____ is a (rifle)(shotgun) (or there was a (rifle)(shotgun)).

A rifle means any firearm [1] designed to be fired from the shoulder and using the energy of the explosive in a fixed metallic cartridge to fire a single projectile through a rifled bore for each single pull of the trigger.”[2]

[OR]

A shotgun means “any firearm designed to be fired from the shoulder and using the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shots or a single projectile for each pull of the trigger, or any firearm designed to be fired from the shoulder which does not fire fixed ammunition.”[3]

A firearm means “a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other thing, by means of a cartridge or shell or by the action of an explosive or the igniting of a flammable or explosive substance.

The second element the State must prove beyond a reasonable doubt is that the defendant knowingly possessed the (rifle)(shotgun).

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 a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result. “Knowingly,” “with knowledge” or equivalent terms have the same meaning. A person acts knowingly with respect to (his/her) conduct if (he/she) is aware that (his/her) conduct is of that nature. You must determine whether the defendant was aware of the nature of (his/her) conduct in this case. Since knowledge is a state of mind and cannot be seen and can only be determined by inference from conduct, words or acts, it can rarely be proved directly. Therefore, it is not necessary that witnesses be produced by the State to testify that a defendant said (he/she) knowingly did something. (His/her) knowledge may be gathered from (his/her) acts and (his/her) conduct, and from all the surrounding circumstances reflected in the evidence you have heard and seen in this case. That is, you must be convinced beyond a reasonable doubt that the defendant in this case was aware that (he/she) had a (rifle)(shotgun) in (his/her) 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 person must know or be aware that (he/she) possesses the item in this case a (rifle) (shotgun), and (he/she) must know what it is that (he/she) possesses or controls that it is a (rifle) (shotgun).

[Where applicable charge the following: this possession cannot merely be a passing control that is fleeting or uncertain in its nature.[4]] 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.

A person may possess a (rifle)(shotgun) 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, 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 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.

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 property, but though not physically on one’s person, he is aware of the presence of the property and is able to exercise intentional control or dominion over it.

A person who, although not in actual possession, has knowledge of its character, and knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of 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.

The third element that the State must prove beyond a reasonable doubt is the defendant did not have a valid firearms purchaser identification card. If you find that the defendant knowingly possessed the (rifle)(shotgun), and that there is no evidence that defendant had a valid firearm purchaser identification card, then you may infer [5], if you think it appropriate to do so based upon the facts presented, that defendant had no such firearms purchaser identification card. Note, however, that as with all other elements, the State bears the burden of showing beyond a reasonable doubt the lack of a valid firearms identification card, and you may apply 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 one of the elements of the crime beyond a reasonable doubt, your verdict must be “not guilty.”

If, on the other hand, you find that the State has proven all of the elements of the crime beyond a reasonable doubt all of the elements, 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] N.J.S.A. 2C:39-1m.

[3] N.J.S.A. 2C:39-1n.

[4] If issue of temporary possession see N.J.S.A. 2C:39-5g(1)(2).

[5] See N.J.S.A. 2C:39-2b. If issue is possession of a firearm by multiple occupants of a vehicle, see N.J.S.A. 2C:39-2a. Also see State v. Ingram, 98 N.J. 489, 497-500 (1985).