SUPPLEMENTAL CHARGE - NO EARLY RELEASE ACT

(N.J.S.A. 2C:43-7.2)
(To be used in cases in which the count of the indictment does not specifically
require the State to prove beyond a reasonable doubt
any of the NERA elements)1
If you find the defendant2 guilty of (insert specific crime and count of the indictment), you must then determine whether the State has proven beyond a reasonable doubt that the crime committed by the defendant is a violent crime. Under our law, a violent crime is a crime in which the defendant:
(Choose applicable conduct)
used or threatened the immediate use of a deadly weapon.3 For purposes of this determination, “deadly weapon” means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury. Please note that this definition of “deadly weapon” differs from the previous definition that I gave you which included that a deadly weapon could be “an object that the victim reasonably believed to be capable of producing death or serious bodily injury.”4 [insert specific example] To find the
1 This instruction should be given for any count of an indictment that may trigger the No Early Release Act if the language of the indictment does not require a specific finding by the jury that the State has proven the necessary additional NERA elements. State v. Johnson, 166 N.J. 523 (2001). This charge will also be used when the defendant pleads guilty to an offense, but exercises (his/her) right to a jury trial on the NERA issue.
2 In State v. Rumblin, 166 N.J. 550 (2001), the Supreme Court held that NERA may apply to accomplices as well as principals.
3 Proof that a defendant used or threatened the use of a deadly weapon is a prerequisite to parole ineligibility under the No Early Release Act; mere possession does not suffice. State v. Pierre, 329 N.J. Super. 588, 748 A.2d 654 (L.1999), affirmed 330 N.J. Super. 7, 748 A.2d 1129.
4 For cases interpreting “deadly weapon” under the Act, see State v. Ainis, 317 N.J. Super. 127, 721 A.2d 329 (Law Div.1998), AIDS-infected hypodermic needle; State v. Perez, 331 N.J. Super. 497, 752 A.2d 378 (Law Div. 2000), triggerless handgun that maintained permanent characteristics of a firearm; State v. Pierre, 330 N.J. Super. 7, 748 A.2d 1129 (App. Div. 2000), unopened knife; State v. Burford, 163 N.J. 16, 746 A.2d 998 (2000), stolen automobile; State v. Cheung, 328 N.J. Super. 368, 746 A.2d 38 (App. Div. 2000), BB gun; State v. Grawe, 327 N.J. Super. 579, 744 A.2d 246 (App. Div. 2000), certif. denied 164 N.J. 560, 753 A.2d 1152, hand-held hammer; State v. Meyer, 327 N.J. Super. 50, 742 A.2d 614 (App. Div. 2000), certif. denied 164 N.J. 191, 752 A.2d 1292, pellet gun; State v. Austin, 335 N.J. Super. 486 (App. Div. 2000), inoperable BB gun.
SUPPLEMENTAL CHARGE -
NO EARLY RELEASE ACT
(N.J.S.A. 2C:43-7.2)
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defendant guilty of committing a violent crime, you must find that the defendant used or threatened the immediate use of a deadly weapon which was actually capable of producing death or serious bodily injury. “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.5
(or)
caused death or serious bodily injury.6 “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
(or)
used, or threatened the immediate use of physical force during an aggravated sexual assault or a sexual assault. For purposes of determining whether the defendant has committed a violent crime, the meaning of “physical force” is different from the level of force that I have previously defined and means an independent act of force or violence in addition to the act of sexual touching or penetration constituting physical force when the victim does not consent.7
If you are satisfied that the State has proven beyond a reasonable doubt that the defendant committed a violent crime by (insert applicable elements), you must mark “yes” on the appropriate section of the verdict sheet which will be supplied to you. If you are not satisfied that the State has proven beyond a reasonable doubt that the defendant has committed a violent crime by (insert applicable elements), you must mark “no” on the verdict sheet.
5 N.J.S.A. 2C:11-1.
6 (NERA) applies only to violent crimes in which the actor actually causes death or serious bodily injury. State v. Staten, 327 N.J. Super. 349, 743 A.2d 365 (App. Div. 2000), certif. denied 164 N.J. 561, 753 A.2d 1153. (NERA) applies to vehicular homicide committed by causing death through the reckless operation of a vehicle. State v. Ferencsik, 326 N.J. Super. 228, 741 A.2d 101 (App. Div. 1999). In State v. Newman, 325 N.J. Super. 556, 740 A.2d 153 (App. Div. 1999), certif. denied 163 N.J. 396, 749 A.2d 370, it was held that reckless manslaughter is a “violent crime” within the meaning of (NERA) and that the statute that requires “knowingly” as the culpability element when no culpable mental state is expressly designated in a statute only applies to statutes defining offenses and does not apply to (NERA). However, to the extent that the holding in State v. Johnson suggests that NERA is a separate violent crime with additional separate elements, the requirement of a “knowing” level of culpability may need to be revisited.
7 State v. Thomas, 322 N.J. Super. 512, 731 A.2d 532 (App. Div. 1999), aff’d 166 N.J. 560 (2001).

CAUSING SERIOUS BODILY INJURY WHILE OPERATING ON THE REVOKED/SUSPENDED LIST

(N.J.S.A. 2C:40-22b)
In Count of this indictment, the defendant is charged with the crime of causing serious bodily injury to another while operating a motor vehicle with a revoked or suspended driver’s license. The indictment alleges:
(READ APPROPRIATE COUNT OF INDICTMENT)
The defendant is accused of violating a section of our statutes that makes it a crime for a person who is operating a motor vehicle with a revoked or suspended driver’s license to be involved in an accident that results in serious bodily injury to another.
In order for you to find the defendant guilty, the State must prove each of the following elements beyond a reasonable doubt:
1. That the defendant’s license was suspended or revoked;1
2. That the defendant knew that (his/her) license was suspended or revoked;
3. That the defendant knowingly operated a motor vehicle; and
4. That the defendant’s operation resulted in serious bodily injury to another.
The first element that the State must prove beyond a reasonable doubt is that the defendant’s license was suspended or revoked. A motorist’s license is suspended or revoked from the time that the Division of Motor Vehicles or a court suspends or revokes that license until the time that the Division restores it.2
The second element that the State must prove beyond a reasonable doubt is that the defendant knew that (his/her) license was suspended or revoked.3
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
1 See N.J.S.A. 39:3-40. When the State alleges that the defendant was refused a license, that (his/her) reciprocity privileges were suspended or that (he/she) had been prohibited from obtaining a license, the charge should be modified accordingly.
2 State v. Zalta, 217 N.J. Super. 209, 212-213 (App. Div. 1987). See also, State v. Sandoro, 272 N.J. Super. 206 (App. Div. 1994).
3 N.J.S.A. 2C:2-2c(3). But see, State v. Wenof, 102 N.J. Super. 370, 375 (Cty. Ct. 1968), which holds that a motorist need not have actual knowledge that (his/her) license has been revoked or suspended as long as the Division of Motor Vehicles attempted to notify the motorist of the suspension by means reasonably calculated to reach (him/her).
CAUSING SERIOUS BODILY INJURY WHILE
OPERATING ON THE REVOKED/SUSPENDED LIST
(N.J.S.A. 2C:40-22b)
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circumstances exist or if (he/she) is aware of a high probability of their existence.
Knowledge is a condition of the mind that cannot be seen and that can often be determined only from 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.
The third element that the State must prove beyond a reasonable doubt is that the defendant knowingly operated a motor vehicle.
The fourth element that the State must prove beyond a reasonable doubt is that the defendant’s operation resulted in serious bodily injury to another. In other words, the State must prove beyond a reasonable doubt that the defendant’s operation caused serious bodily injury to (insert victim’s name).
Serious bodily injury is bodily injury that creates a substantial risk of death or that causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.4
For you to determine that the defendant’s operation resulted in serious bodily injury to (insert victim’s name), the State must prove the following beyond a reasonable doubt:
First, the State must prove that the serious bodily injury suffered by (insert victim’s name) would not have occurred but for the defendant’s operation. In other words, the State must prove beyond a reasonable doubt that this serious bodily injury would not have occurred if the defendant had not operated a motor vehicle.
Second, the State must prove both:
(1) that the serious bodily injury was not too remote in its occurrence as to have a just bearing on the defendant’s liability; and
(2) that the serious bodily injury was not too dependent upon the conduct of another person that was unrelated to the defendant’s operation as to have a just bearing on (his/her) liability.
4 N.J.S.A. 2C:11-1b.
CAUSING SERIOUS BODILY INJURY WHILE
OPERATING ON THE REVOKED/SUSPENDED LIST
(N.J.S.A. 2C:40-22b)
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In other words, the State must prove beyond a reasonable doubt that the serious bodily injury suffered by (insert victim’s name) was not so unexpected or unusual that it would be unjust to find the defendant guilty of this offense.
In considering any conduct of a person other than the defendant, be aware that it is not a defense that (insert victim’s name) contributed to (his/her) own injuries by reckless or negligent conduct, or reckless or negligent operation.
If you find that the State has proven each of these elements beyond a reasonable doubt, then you must find the defendant guilty.
If, however, the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.5
5 If the trial court plans to consider any Title 39 charge as a lesser included offense, the jury should be advised accordingly. State v. Muniz, 118 N.J. 333-334 (1990).

CAUSING DEATH WHILE OPERATING ON THE REVOKED/SUSPENDED LIST

(N.J.S.A. 2C:40-22a)
In Count of this indictment, the defendant is charged with the crime of causing the death of another while operating a motor vehicle with a revoked or suspended driver’s license. The indictment alleges:
(READ APPROPRIATE COUNT OF INDICTMENT)
The defendant is accused of violating a section of our statutes that makes it a crime for a person who is operating a motor vehicle with a revoked or suspended driver’s license to be involved in an accident that results in the death of another.
In order for you to find the defendant guilty, the State must prove each of the following elements beyond a reasonable doubt:
1. That the defendant’s license was suspended or revoked;1
2. That the defendant knew that (his/her) license was suspended or revoked;
3. That the defendant knowingly operated a motor vehicle; and
4. That the defendant’s operation resulted in the death of another.
The first element that the State must prove beyond a reasonable doubt is that the defendant’s license was suspended or revoked. A motorist’s license is suspended or revoked from the time that the Division of Motor Vehicles or a court suspends or revokes that license until the time that the Division restores it.2
The second element that the State must prove beyond a reasonable doubt is that the defendant knew that (his/her) license was suspended or revoked.3
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.
Knowledge is a condition of the mind that cannot be seen and that can often be
1 See N.J.S.A. 39:3-40. When the State alleges that the defendant was refused a license, that (his/her) reciprocity privileges were suspended or that (he/she) had been prohibited from obtaining a license, the charge should be modified accordingly.
2 State v. Zalta, 217 N.J. Super. 209, 212-213 (App. Div. 1987). See also, State v. Sandoro, 272 N.J. Super. 206 (App. Div. 1994).
3 N.J.S.A. 2C:2-2c(3). But see, State v. Wenof, 102 N.J. Super. 370, 375 (Cty. Ct. 1968), which holds that a motorist need not have actual knowledge that (his/her) license has been revoked or suspended as long as the Division of Motor Vehicles attempted to notify the motorist of the suspension by means reasonably calculated to reach (him/her).
CAUSING DEATH WHILE OPERATING ON
THE REVOKED/SUSPENDED LIST
(N.J.S.A. 2C:40-22a)
Page 2 of 2
determined only from 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.
The third element that the State must prove beyond a reasonable doubt is that the defendant knowingly operated a motor vehicle.
The fourth element that the State must prove beyond a reasonable doubt is that the defendant’s operation resulted in the death of another.
For the defendant’s operation to result in the death of (insert decedent’s name), the State must prove the following beyond a reasonable doubt:
First, the State must prove that the death would not have occurred but for the defendant’s operation. In other words, the State must prove beyond a reasonable doubt that this death would not have occurred if the defendant had not operated a motor vehicle.
Second, the State must prove both:
(1) that the death was not too remote in its occurrence as to have a just bearing on the defendant’s liability; and
(2) that the death was not too dependent upon the conduct of another person that was unrelated to the defendant’s operation as to have a just bearing on (his/her) liability.
In other words, the State must prove beyond a reasonable doubt that the death of (insert decedent’s name) was not so unexpected or unusual that it would be unjust to find the defendant guilty of this offense.
In considering any conduct of a person other than the defendant, be aware that it is not a defense that (insert decedent’s name) contributed to (his/her) own death by reckless or negligent conduct, or reckless or negligent operation.
If you find that the State has proven each of these elements beyond a reasonable doubt, then you must find the defendant guilty. If, however, the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.4
4 If the trial court plans to consider any Title 39 charge as a lesser included offense, the jury should be advised accordingly. State v. Muniz, 118 N.J. 333-334 (1990).

LEADER OF FIREARMS TRAFFICKING NETWORK

(N.J.S.A. 2C:39-16)
The indictment charges defendant with the crime of being a leader of a firearms trafficking network. That section of our statutes provides in pertinent part that:
A person is a leader of a firearms trafficking network if he/she conspires with others an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, transport, ship, sell or dispose of any firearm.
In order to convict defendant of the charge, the State must prove each of the following elements beyond a reasonable doubt:
(1) That defendant conspired with two or more persons.
(2) That the conspiracy included a scheme or course of conduct to unlawfully (manufacture, transport, ship, sell or dispose) of any firearm.
(3) That defendant was an organizer, supervisor, financier or manager in such a conspiracy.
(4) That defendant occupied a high level position of superior authority or control over other persons in the scheme or organization and exercised that authority or control over others involved in the scheme or organization.1
(5) That defendant engaged in the conspiracy for profit.
If you find that the State has proven each of these elements beyond a reasonable doubt, then you must find defendant guilty of being a leader of a firearms trafficking network. 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 of being a leader of a firearms trafficking network.
The first element which the State must prove beyond a reasonable doubt is that defendant conspired with two or more persons. [Read model jury charge on conspiracy; if conspiracy already charged, remind jurors of that definition].
The second element which the State must prove beyond a reasonable doubt is that the conspiracy included a scheme or course of conduct to unlawfully (manufacture, transport, ship,
1This language is based upon State v. Alexander, 136 N.J. 563 (1994), in which the Supreme Court construed identical language.
LEADER OF FIREARMS TRAFFICKING NETWORK
N.J.S.A. 2C:39-16
PAGE 2 OF 3
sell or dispose of)2 firearms. Firearm means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun.3 Manufacture means to receive or obtain raw materials or parts and process them into firearms or finished parts of firearms.4 Transport means to carry from one place to another. Ship means to send or transport by any carrier. Sell means to exchange property, goods or services for money or its equivalent. Dispose of means to give away, lease, loan, keep for sale, offer, offer for sale, sell, transfer, or otherwise transfer possession.
[IF APPLICABLE, CHARGE FOLLOWING]
It is not a defense to this charge that the firearms were brought into or transported in this State solely for ultimate distribution or dispensing in another jurisdiction.
The third element which the State must prove beyond a reasonable doubt is that defendant acted as an organizer, supervisor, financier or manager within the conspiracy. An organizer is a person who arranges, devises, or plans a firearms trafficking conspiracy. A supervisor is one who oversees the operation of a firearms trafficking conspiracy. A financier is one who is responsible for providing the funds or resources necessary to operate a firearms trafficking conspiracy. A manager is one who directs the operations of a firearms trafficking conspiracy. Defendant, however, does not have to be the only or even the primary organizer, supervisor, financier or manager.
The fourth element which the State must prove beyond a reasonable doubt is that defendant held a high level position of superior authority in the firearms trafficking conspiracy. In other words, the State must prove that defendant occupied a position of authority or control over other persons in a scheme or organization of firearms manufacturing, transporting, shipping or selling and that in that position the defendant exercised supervisory authority or control over others engaged in the firearms trafficking conspiracy.
The final element which the State must prove beyond a reasonable doubt is that defendant engaged in the conspiracy for profit. However, the State need not prove that any intended profit was actually realized. You may infer that a particular scheme or course of conduct was undertaken for profit from all the surrounding circumstances, including but not limited to the
2Choose the appropriate allegation.
3A fuller definition of firearm is included in N.J.S.A. 2C:39-1f and may be used if necessary.
4N.J.S.A. 2C:39-1j.
LEADER OF FIREARMS TRAFFICKING NETWORK
N.J.S.A. 2C:39-16
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number of persons involved in the scheme or course of conduct, the defendant’s net worth and his expenditures in relation to his legitimate source(s) of income, the amount of firearms involved or the amount of cash or currency involved.
[IF APPLICABLE, CHARGE FOLLOWING]
It is not a defense to this charge that the profit, if any, involved in this scheme was intended to be made in another jurisdiction.
If the State has failed to prove beyond a reasonable doubt any of the elements of this offense, then you must find the defendant not guilty. If the State has proven beyond a reasonable doubt each element of this offense, then you must find the defendant guilty.

UNLAWFUL USE OF BODY VESTS

N.J.S.A. 2C:39-13
The defendant is charged in the indictment with the crime of unlawful use of a body vest. The statute upon which this charge is based states in pertinent part:
A person is guilty of a crime if he uses or wears a body vest while engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit [choose appropriate] murder, manslaughter, robbery, sexual assault, burglary, kidnapping, criminal escape or assault . . . 1
In order to find the defendant guilty of this crime, the State must prove beyond a reasonable doubt the following elements:
1). That defendant was engaged in the commission of2, or an attempt to commit, or flight after committing or attempting to commit [crime alleged], and
2). That while engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit [crime alleged], defendant was using or wearing a body vest.
The first element that the State must prove beyond a reasonable doubt is that defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit [crime alleged]. I have already defined the elements of [predicate crime(s)], which defendant is accused of having committed [or attempted to commit], in my instructions concerning count(s) [if applicable add:] as well as the included offenses of [predicate crime(s)] that you have a right to consider.3
The second element that the State must prove beyond a reasonable doubt is that while
1The assault set forth in the statute must be as defined in N.J.S.A. 2C:12-1b.
2Delete language relating to attempt or flight throughout the charge if not applicable. Cf. State in the Interest of J.R., 234 N.J. Super. 388 (Ch. Div. 1988). If attempt is applicable, see Model Jury Charge on attempt (N.J.S.A. 2C:5-1).
3If the defendant is accused of using or wearing a body vest while engaged in a first degree crime, and included offenses of that crime are also being submitted, the jury must be instructed that it must unanimously agree as to which crime, if any, the State has proven beyond a reasonable doubt. Such a unanimous verdict is necessary to determine whether defendant, upon conviction, would be exposed to a second or third degree sentence for this offense.
UNLAWFUL USE OF BODY VESTS
N.J.S.A. 2C:39-13
Page 2 of 2
engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit [crime alleged], defendant was using or wearing a body vest. A body vest is defined as a bullet-resistant body armor which is intended to provide ballistic and trauma protection.
If you find that the State has proven both elements of the crime beyond a reasonable doubt, then you must find defendant guilty of the charge. If you find that the State has failed to prove any element of the crime beyond a reasonable doubt, then you must find defendant not guilty of the charge.

CERTAIN PERSONS NOT TO HAVE FIREARMS DISORDERLY PERSONS OFFENSE/DOMESTIC VIOLENCE

[N.J.S.A. 2C:39-7b(2)]
NOTE
[The following should be charged before the beginning of the second trial if this count 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 firearm by a previously convicted person. 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.1
[CHARGE IN ALL CASES]
Count _________of the indictment charges defendant with violating a statute which reads as follows:
A person having been convicted in this State or elsewhere of [a disorderly persons offense involving domestic violence] [an enumerated offense] [a predicate offense]2 . . . who purchases, owns, possesses or controls a firearm is guilty of a crime.
1 See State v. Ragland, 105 N.J. 189, 195 (1986).
2 See State v. Brown, 180 N.J. 572, 585 (2004) (if defendant stipulates to the offense, the jury must be instructed only that defendant was convicted of a predicate offense. If defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment). 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). Defendant also may choose to have the jury informed of the prior
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
Page 2 of 10
In order for you to find defendant guilty, the State must prove each of the following elements beyond a reasonable doubt:
1. That exhibit ________is a firearm [or that there was a firearm].
2. That defendant purchased, owned, possessed or controlled the firearm [on the date alleged in the indictment].
3. That defendant is a person who previously has been convicted of [a disorderly persons offense involving domestic violence whether or not armed or in possession of a weapon] [the enumerated offense] [the predicate offense].
conviction.
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
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The first element the State must prove beyond a reasonable doubt is that exhibit ________is a firearm [or that there was a firearm]. A “firearm”3 means any handgun4, 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 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-
eights of an inch in diameter, with sufficient force to injure a person.
The second element the State must prove beyond a reasonable doubt is that defendant knowingly5 purchased, owned, possessed or controlled the firearm. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she 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/she is aware that it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or
3 N.J.S.A. 2C:39-1f.
4 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:39-1k. The handgun need not be presently operable. State v. Gantt, 101 N.J. 573 (1986).
5 N.J.S.A. 2C:2-2c(3) applies the culpable state of mind of knowingly pursuant to N.J.S.A. 2C:2-2b(2) to this statutory crime.
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
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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 defendant said that he/she had a certain state of mind when he/she did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of his/her acts and conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.
To possess6 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 the firearm 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 is, that it is a firearm.
[Where applicable charge the following: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] To “possess” within the meaning of the law, the defendant must
6 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
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
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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 ________ (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, control and dominion 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/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 POSSESSION7
Possession may be constructive instead of actual. 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 exercise intentional control or dominion 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
7 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 temporal 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.
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
Page 6 of 10
constructive possession of that item.
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 option from the following three:]
OPTION #1
[If defendant chooses to have the jury know the nature of the prior conviction(s), use the following:]
The third element that the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of [a] disorderly persons offense[s] involving domestic violence whether or not armed with or having in his/her possession a weapon. A disorderly persons offense is not a crime within the meaning of this State’s constitution. Convictions of such offenses do not give rise to any disability or legal disadvantage based on a conviction of a crime.8 Domestic violence means the occurrence of one or more acts of [choose appropriate] [simple assault], [false imprisonment], [lewdness], [criminal mischief], [criminal trespass]9 inflicted upon
[CHOOSE APPROPRIATE]
a person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.10
An emancipated minor is [choose appropriate] [someone who is under 18 years of age but has been married] [someone who has entered military service] [someone who has a child or is
8 N.J.S.A. 2C:1-4b.
9 These offenses are the only ones listed in N.J.S.A. 2C:25-19a, defining domestic violence, which are disorderly persons offenses.
10 N.J.S.A. 2C:25-19d
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
Page 7 of 10
pregnant] [someone who has previously been declared by a court or an administrative agency to be emancipated].11
OR
a person, regardless of age, who has been subjected to domestic violence by a person with whom the
person has a child in common or with whom the person anticipates having a child in common if one of the parties is pregnant.12
OR
a person who has been subjected to domestic violence by a person with whom the person has had a dating relationship.13
The term “convicted of an offense” means a judgment of conviction entered by a court of competent jurisdiction in New Jersey, or elsewhere.14 [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 an offense(s) which in the other jurisdiction or country is comparable to the offense(s) of a disorderly persons offense involving domestic violence, then defendant is subject to the provisions of this statute, then read following]15: The offense of_________is comparable to a disorderly persons offense in New Jersey.16
OPTION #2
11 N.J.S.A. 2C:25-19e
12 N.J.S.A. 2C:25-19d.
13 N.J.S.A. 2C:25-19d.
14 The judgment of conviction should be redacted to show only the degree of the offense for which defendant previously was convicted unless the defendant requests that the un-redacted judgment of conviction be entered into evidence.
15 N.J.S.A. 2C:39-7c.
16 Whether the foreign offense satisfies this provision is a question for the trial judge. State v.
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
Page 8 of 10
[If defendant does not 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 [an enumerated offense] [a predicate offense]. The term “convicted of an offense” means a judgment of conviction entered by a court of competent jurisdiction in New Jersey, or elsewhere. [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 an offense(s) which in the other jurisdiction or country is comparable to the offense(s) of a disorderly persons offense involving domestic violence, then defendant is subject to the provisions of this statute.]
[If defendant stipulates to the predicate offense, use the following:]
OR
The third element the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted [of the enumerated offense] [of the predicate offense]. In this matter, the parties have stipulated, or agreed, that defendant has previously been convicted of [an enumerated offense] [a predicate offense]. With regard to the stipulation, 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.
[Charge in case which is based upon defendant’s prior conviction:]
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
Schumann, 111 N.J. 470, 475 (1988).
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
Page 9 of 10
defendant who has committed prior offenses when it is offered only to show that (he/she) has 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.17
In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense.18 You may not use this evidence to decide that defendant has a tendency to commit crimes or that (he/she) is a bad person. That is, you may not decide that, just because the defendant has committed [a] [prior disorderly persons offense(s) involving domestic violence] [predicate offense(s)] [enumerated offense(s)], (he/she) 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.19
[Charge if applicable (where the same jury has already convicted the defendant of another possessory weapons offense or offenses – a bifurcated trial situation):20
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] 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
17 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)).
18 If defendant testifies and has a record which includes indictable offenses, the court should instruct the jury on the use of these convictions. See Model Jury Charges, Criminal, Credibility - Prior Conviction of a Defendant.
19 State v. 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.)
20 The defendant may affirmatively request that this charge not be given. State v. Alvarez, 318 N.J. Super. at 155.
CERTAIN PERSONS NOT TO HAVE
FIREARMS DISORDERLY PERSONS
OFFENSE/DOMESTIC VIOLENCE
(N.J.S.A. 2C:39-7b(2))
Page 10 of 10
anew.21]
[Charge in all cases:]
If you find that the State has proven every element of the offense beyond a reasonable doubt, 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.
21 Alvarez, 318 N.J. Super. at 154-55.

CERTAIN PERSONS NOT TO HAVE ANY FIREARMS

[N.J.S.A. 2C:39-7b(1)]2
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. 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:
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:39-7a.
2 This charge may not be appropriate where the prior conviction was for domestic violence.
3 See State v. Ragland, 105 N.J. 189, 195 (1986).
4 The crimes set forth in the statute are: 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, or endangering the welfare of a child pursuant to N.J.S.A. 2C:24-4, stalking in violation of N.J.S.A. 2C:12-10 or a crime involving domestic violence as defined in N.J.S.A. 2C:25-19, whether or not armed with or having in his/her possession a weapon enumerated in subsection r. of N.J.S.A. 2C:39-1. Additionally, the following crimes are included: N.J.S.A. 2C:35-3 through N.J.S.A. 2C:35-6 inclusive; N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-11; N.J.S.A. 2C:39-3; N.J.S.A. 2C:39-4; or N.J.S.A. 2C:39-9. Unless the defendant stipulates, see note 4, infra, the prior crimes should be sanitized. See State v. Brown, 180 N.J. 572, 585 (2004). Thus, the trial court should refer to them as crime(s) of the appropriate degree. For example, if the offense were aggravated sexual assault, the court would indicate that defendant previously was convicted of a crime of the first degree. Nothing prevents a defendant, however, from choosing to inform the jury of the name of the prior crime of which he/she was convicted.
5 See State v. Kevin Brown, 180 N.J. at 585 (if defendant stipulates to the offense, the jury must be instructed only that defendant was convicted of a predicate offense. If defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment). 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).
CERTAIN PERSONS NOT TO
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N.J.S.A. 2C:39-7b(1)
Page 2 of 6
possesses or controls a firearm 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 firearm [or that there was a firearm].
2. Defendant purchased, owned, possessed or controlled the firearm [on the date alleged in the indictment].
3. Defendant is a person who previously has been convicted of [a crime of the ______degree] OR [a predicate offense].
The first element the State must prove beyond a reasonable doubt is that exhibit_______is a firearm [or that there was a firearm]. A “firearm” means any handgun6, 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 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-eights of an inch in diameter, with sufficient force to injure a person.
The second element the State must prove beyond a reasonable doubt is that defendant knowingly7 purchased, owned, possessed or controlled a weapon. A person 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.
6 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:39-1k. The handgun need not be presently operable. State v. Gantt, 101 N.J. 573 (1986).
7 N.J.S.A. 2C:2-2c(3) applies the culpable state of mind of knowingly pursuant to N.J.S.A. 2C:2-2b(2) to this statutory crime.
CERTAIN PERSONS NOT TO
HAVE ANY FIREARMS
N.J.S.A. 2C:39-7b(1)
Page 3 of 6
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 from all surrounding circumstances established by the evidence.
To possess”8 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/she possesses it, and he/she must know what it is that he/she 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/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 _____________(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 and dominion 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/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.
8 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 FIREARMS
N.J.S.A. 2C:39-7b(1)
Page 4 of 6
CONSTRUCTIVE POSSESSION9
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 his or her person but is aware that the item is present and is able to exercise intentional control or dominion 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.
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 the crime(s) of the ________degree. The term “convicted of the crime(s) of . . .” means a judgment of conviction entered by a court of competent jurisdiction in this State, New Jersey, or elsewhere.10 [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
9 In State v. Spivey, N.J. (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 temporal 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.
10 The judgment of conviction should be redacted to show only the degree of the offense for which defendant previously was convicted unless the defendant requests that the un-redacted judgment of conviction be entered into evidence.
CERTAIN PERSONS NOT TO
HAVE ANY FIREARMS
N.J.S.A. 2C:39-7b(1)
Page 5 of 6
provisions of this statute.11].
[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 followed 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.
[Charge in case which is based upon defendant’s prior conviction:]
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/she) has 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.12
In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense.13 You may not use this evidence to decide that defendant has a tendency to commit crimes or that (he/she) is a bad person. That is, you may not decide that, just because the defendant has committed [a] prior crime[s], (he/she) must be guilty of the present crime[s]. The evidence produced by the State concerning [a] prior conviction[s] is to be considered
11 N.J.S.A. 2C:39-7c.
12 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)).
13 If defendant testifies, this portion of the charge should be altered.
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N.J.S.A. 2C:39-7b(1)
Page 6 of 6
in determining whether the State has established its burden of proof beyond a reasonable doubt.14
[Charge if applicable (where the same jury has already convicted the defendant of another possessory weapons offense or offenses – a bifurcated trial situation):15
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] 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.16]
[Charge in all cases:]
In summary, the State must prove three elements beyond a reasonable doubt - first, that exhibit________is a firearm (or that there was a firearm); second, that defendant knowingly purchased, owned, possessed or controlled the firearm 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 crime of the ______________degree] OR [a crime named in the statute] OR [of the predicate offense].
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.
14 State v. Kevin 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.)
15 The defendant may affirmatively request that this charge not be given. Alvarez, 318 N.J. Super. at 155.
16 Alvarez, 318 N.J. Super. at 154-55.

CERTAIN PERSONS NOT TO HAVE ANY WEAPONS

[N.J.S.A. 2C:39-7a]
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. 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.2
[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 offenses3] OR [a predicate offense]4 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:39-7a.
2 See State v. Ragland, 105 N.J. 189, 195 (1986).
3 The crimes set forth in the statute are 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, endangering the welfare of a child pursuant to N.J.S.A. 2C:24-4, whether or not armed with or having in his/her possession a weapon enumerated in subsection r. of N.J.S.A. 2C:39-1, possession of a prohibited weapon, N.J.S.A. 2C:39-3, possession of 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 disorderly persons offense for the unlawful use, possession or sale of a controlled dangerous substance as defined in N.J.S.A. 2C:35-2. Unless the defendant stipulates, see note 4, infra, the prior crimes should be sanitized. See State v. Brown, 180 N.J. 572, 585 (2004). Thus, the trial court should refer to them as crime(s) of the appropriate degree. For example, if the offense were aggravated sexual assault, the court would indicate that defendant previously was convicted of a crime of the first degree. Nothing prevents a defendant, however, from choosing to inform the jury of the name of the prior crime of which he/she was convicted.
4 See State v. Kevin Brown, 180 N.J. 572, 585 (2004) (if defendant stipulates to the offense, the jury must be instructed only that defendant was convicted of a predicate offense. If defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment). 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).
CERTAIN PERSONS NOT TO
HAVE ANY WEAPONS
N.J.S.A. 2C:39-7a
Page 2 of 7
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 crime of the ____________________degree] 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.5 [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 capable of both
5 N.J.S.A. 2C:39-1r. See remainder of N.J.S.A. 2C:39-1r for more detailed definition of the term “weapon.”
innocent and unlawful purposes, the circumstances attending its possession may be considered by
CERTAIN PERSONS NOT TO
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N.J.S.A. 2C:39-7a PAGE 3 of 7
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.”6]
The second element the State must prove beyond a reasonable doubt is that defendant knowingly7 purchased, owned, possessed or controlled a weapon. A person 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 from all surrounding circumstances established by the evidence.
To possess”8 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/she possesses it, and he/she must know what it is that he/she 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/her) control
6 State v. Jones, 198 N.J. Super. 553, 564-65 (App. Div. 1985).
7 N.J.S.A. 2C:2-2C(3) applies the culpable state of mind of knowingly pursuant to N.J.S.A. 2C:2-2b(2) to this statutory crime.
8 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 if found in a motor vehicle. See also, N.J.R.E. 303.
CERTAIN PERSONS NOT TO
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N.J.S.A. 2C:39-7a PAGE 4 of 7
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 ___________(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 and dominion 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/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 POSSESSION9
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 his or her person but is aware that the item is present and is able to exercise intentional control or dominion 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.
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
9 In State v. Spivey, N.J. (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 temporal 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.
CERTAIN PERSONS NOT TO
HAVE ANY WEAPONS
N.J.S.A. 2C:39-7a PAGE 5 of 7
person who previously has been convicted of the crime(s) of the ___________degree. The term “convicted of the crime(s) of . . .” means a judgment of conviction entered by a court of competent jurisdiction in this State, New Jersey, or elsewhere.10 [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.11]
[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 follow 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/she is no longer suffering from a mental disorder which interferes with or handicaps him/her in the handling of a firearm.
[Charge in case which is based upon defendant’s prior conviction:]
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/she) has a disposition or tendency to do wrong and therefore must be guilty of the present offense. However, our rules do
10 The judgment of conviction should be redacted to show only the degree of the offense for which defendant previously was convicted unless the defendant requests that the un-redacted judgment of conviction be entered into evidence.
11 N.J.S.A. 2C:39-7c.
CERTAIN PERSONS NOT TO
HAVE ANY WEAPONS
N.J.S.A. 2C:39-7a PAGE 6 of 7
permit evidence of prior crimes when the evidence is used for some other purpose.12
In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense.13 You may not use this evidence to decide that defendant has a tendency to commit crimes or that (he/she) is a bad person. That is, you may not decide that, just because the defendant has committed [a] prior crime[s], (he/she) 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.14
[Charge if applicable (where the same jury has already convicted the defendant of another possessory weapons offense or offenses – a bifurcated trial situation):15
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.16]
[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 crime of the_______ degree] OR [a crime named in the statute] OR [of the predicate offense].
[or]
12 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)).
13 If defendant testifies, this portion of the charge should be altered.
14 State v. Kevin 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.)
15 The defendant may affirmatively request that this charge not be given. Alvarez, 318 N.J. Super. at 155.
16 Alvarez, 318 N.J. Super. at 154-55.
CERTAIN PERSONS NOT TO
HAVE ANY WEAPONS
N.J.S.A. 2C:39-7a PAGE 7 of 7
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 psychiatrist licensed to practice in New Jersey or other satisfactory proof that (he/she) is no longer suffering from a mental disorder which interferes with or handicaps (him/her) 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.

POSSESSION OF AN ASSAULT FIREARM

(N.J.S.A. 2C:39-5f)
Defendant(s), _______________________, is charged in count __________ with unlawful possession of an assault firearm. The pertinent language of the statute reads as follows:
Any person who knowingly has in his possession an assault firearm is guilty of a crime...except if the assault firearm is licensed..., registered..., or rendered inoperable.
The crime with which the defendant in this case is charged contains three essential elements, all of which the State must prove beyond a reasonable doubt. They are:
1. S__________ is an assault firearm;
2. The defendant knowingly possessed the assault firearm;
and
3. The assault firearm was not licensed, registered, or rendered operable.
A “firearm” is denied as any handgun, 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 projectile 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 flammable or explosive substances....1
An assault firearm is any firearm designated in the statute.2 (Charge if applicable.) A is designated in the statute as an assault firearm.
(Charge if applicable.) Any firearm manufactured under any designation which is substantially identical to any of the firearms listed in the statute is also an assault firearm. In this case, the State alleges that S_________ is substantially identical to _______________ which is designated in the statute.3
1N.J.S.A. 2C:39-1(f).
2N.J.S.A. 2C:39-1w(1).
3N.J.S.A. 2C:39-1w(2).
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
Page 2 of 6
(Include any of the three following definitions of assault firearm if material to the case)
An assault firearm also means a semi-automatic shotgun with either a magazine capacity exceeding six rounds, a pistol grip, or a folding stock.4 “Semi-automatic” means a firearm which fire a single projectile for each single pull of the trigger and is self-reloading or automatically chambers a round, cartridge, or bullet.5 A “pistol grip” means a well-defined handle, similar to that found on a handgun, that protrudes conspicuously beneath the action of the weapon, and which permits the shotgun to be held and fired with one hand.6
An assault firearm also means a semi-automatic rifle with a fixed magazine capacity exceeding 15 rounds.7 “Semi-automatic” mean a firearm which fires a single projectile for each single pull of the trigger and is self-reloading or automatically chambers a round, cartridge, or bullet.8
An assault firearm also means a part or combination of parts designed or intended to convert a firearm into an assault firearm, or any combination of parts from which an assault firearm may be readily assembled if those parts are in the possession or under the control of the same person.9
The second element is that the defendant knowingly possessed the assault firearm.10
4N.J.S.A. 2C:39-1w(3).
5N.J.S.A. 2C:39-1x.
6N.J.S.A. 2C:39-1z.
7N.J.S.A. 2C:39-1(4).
8N.J.S.A. 2C:39-1x.
9N.J.S.A. 2C:39-1w(5)
10See State v. Pelleteri, 294 N.J. Super. 330, 333-334 (App. Div. 1996) where the Court held “that knowledge of the character of the weapon is not an element of the offense...the Legislature intended to proscribe knowing possession, as distinguished from knowledge of the illegal character of the article possessed...In that context, ‘[k]nowing
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
Page 3 of 6
(The Model Charges on POSSESSION and KNOWINGLY follow. Include joint, constructive, and actual, as appropriate, and charge any applicable and material statutory inference.11)
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.
KNOWINGLY
“Knowingly:” 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 circumstance 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
possession is not to be confused with criminal intent or guilty knowledge.’” The trial judge in response to a question arising out of deliberations charged the jury “that defendant could be found guilty if he knowingly possessed the firearm (a semi-automatic rifle with a magazine capacity of seventeen cartridges) but was unaware that its fixed capacity exceeded fifteen rounds.” The case also involved the defenses of mistake of law and mistake of fact which were precluded by the trial judge. The Appellate Court found no error with the rulings of the trial court and affirmed the conviction.
11N.J.S.A. 2C:39-2.
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
Page 4 of 6
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 S________in (his/her) possession.
POSSESSION CONTINUED
Thus, the person must know or be aware that (he/she) possesses the item, in this case S______, and the person must know what it is that (he/she) possess or controls, in this case, that it is a firearm.
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 item 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 S________ 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 particular article or thing 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. 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 person does not physically have
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
Page 5 of 6
the property, but though not physically on one’s person, (he/she) 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, 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 is that the assault firearm was not licensed, registered or rendered inoperable12.
An assault firearm is “licensed” when the possessor obtains a valid license to possess and carry the assault firearm.13
An assault firearms is “registered” when the owner of an assault firearm purchased on or before May 1, 1990 properly registered the assault firearm as one that is legitimate for target shooting purposes before May 30, 1991.14
An assault firearm is “rendered inoperable” when:
1. The firearm is altered in such a manner that it cannot be immediately fired;
2. The owner or possessor of the firearm does not possess or have control over
the parts necessary to make the firearm operable;
12There is no burden on the State to prove operability of the assault firearm. State v. Elrose, 277 N.J. Super. 548, 557 (App. Div. 1994).
13N.J.S.A. 2C:58-5.
14N.J.S.A. 2C:58-12.
POSSESSION OF AN ASSAULT FIREARM
(N.J.S.A. 2C:39-5f)
Page 6 of 6
and
3. The owner of the firearm filed a valid certification prior to May 30, 1991
indicating the date on which the firearm was rendered inoperable.15
If you find that the defendant knowingly possessed the assault firearm, and that there is no evidence that the defendant had a valid license to possess and carry such a firearm or that the defendant legally registered it or rendered it inoperable by filing a valid certification of inoperability, then you may infer, if you think it appropriate to do so based upon the facts presented, that defendant had no such license and that the defendant did not legally register the firearm or render it inoperable.16 Note, however, that as with all other elements, the State bears the burden of showing, beyond a reasonable doubt, the lack of a valid license and registration and that the firearm was not rendered inoperable. You may apply the inference only if you feel it appropriate to do so under all the facts and circumstances.
If you are satisfied beyond a reasonable doubt that the defendant knowingly possessed an assault firearm which was not validly licensed, registered, or rendered inoperable, your verdict must be “guilty.”
If, on the other hand, any of the elements of the crime have not been proven to your satisfaction beyond a reasonable doubt, your verdict must be “not guilty.”
15See State v. Elrose, supra and N.J.S.A. 2C:58-13.
16N.J.S.A. 2C:39-2b.

UNLAWFUL POSSESSION OF A WEAPON

(N.J.S.A. 2C:39-5d)
The defendant is charged with knowingly having in his/her possession a weapon. [READ COUNT OF INDICTMENT]. That section of our statutes provides in pertinent part:
“Any person who knowingly has in his possession any1 other weapon under circumstances not manifestly appropriate for such lawful uses as it may have, is guilty of a crime. . . .”
In order to convict the defendant of this crime, the State must prove the following elements beyond a reasonable doubt
1. That S - is a weapon (or that there was a weapon);
2. That the defendant possessed the weapon knowingly;
3. That the defendant’s possession of the weapon was under circumstances not manifestly appropriate for a lawful use.
The first element that the State must prove beyond a reasonable doubt is that S - is a weapon [or that there was a weapon]. A weapon is anything readily capable of lethal use or of inflicting serious bodily injury.2
The second element that the State must prove beyond a reasonable doubt is that the weapon was knowingly possessed by the defendant at the time and place alleged. Here, the State alleges that defendant possessed the weapon at (set forth allegations).
A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist
1 This provision is inapplicable to possession of machine guns, handguns, rifles and shotguns. (See N.J.S.A. 2C:39-5a to 5e.).
2 See N.J.S.A. 2C:39-1r.
UNLAWFUL POSSESSION OF A WEAPON
(N.J.S.A. 2C:39-5d)
Page 2 of 4
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/she 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/her acts and conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.
Thus, the person must know or be aware that he/she possesses the item, here a and he/she must know what it is that he/she possesses or controls, in other words, that it is a (describe object possessed). 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 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.
When we speak of possession, we mean a conscious, knowing possession. The law recognizes two kinds of possession: actual possession and constructive possession.
UNLAWFUL POSSESSION OF A WEAPON
(N.J.S.A. 2C:39-5d)
Page 3 of 4
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. 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 person does not physically have the property, but he/she 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, 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.
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 that the defendant possessed S - [or possessed the object] under circumstances not manifestly appropriate for such lawful uses as it may have. It is not necessary for the State to prove that the defendant formed an intent to use S - [or the object] as a weapon.
It is, however, necessary for the State to prove that it was possessed under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon; in other words, under circumstances where it posed [CHOOSE APPROPRIATE] a
UNLAWFUL POSSESSION OF A WEAPON
(N.J.S.A. 2C:39-5d)
Page 4 of 4
likely threat of harm to others [AND/OR] a likely threat of damage to property.3 You may consider factors such as the surrounding circumstances; size, shape and condition of the object, the nature of its concealment, the time, place and actions of the defendant when it was found in his/her possession to determine whether or not the object was manifestly appropriate for its lawful use.
If the State has proven each element beyond a reasonable doubt, then you must find defendant guilty. If, however, the State has failed to prove any element of the offense beyond a reasonable doubt, then you must find defendant not guilty.
3 See State in re G.C., 179 N.J. 475, 483-84 (2004) (determining that statute applies to threats to person and property).

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 firearm1 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
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.
UNLAWFUL POSSESSION
OF A RIFLE OR SHOTGUN
(N.J.S.A. 2C:39-5c(1))
Page 2 of 4
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.
3 N.J.S.A. 2C:39-1n.
UNLAWFUL POSSESSION
OF A RIFLE OR SHOTGUN
(N.J.S.A. 2C:39-5c(1))
Page 3 of 4
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
4 If issue of temporary possession see N.J.S.A. 2C:39-5g(1)(2).
UNLAWFUL POSSESSION
OF A RIFLE OR SHOTGUN
(N.J.S.A. 2C:39-5c(1))
Page 4 of 4
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 infer5, 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."
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).

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
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.
UNLAWFUL POSSESSION OF A HANDGUN
(N.J.S.A. 2C:39-5b)
PAGE 2 OF 4
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.
UNLAWFUL POSSESSION OF A HANDGUN
(N.J.S.A. 2C:39-5b)
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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.
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.
UNLAWFUL POSSESSION OF A HANDGUN
(N.J.S.A. 2C:39-5b)
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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."