State v. Lewis, 93 N.J. Super. 212 (App. Div. 1966),
cert. denied, 386 U.S. 986 (1967), further restricted the
breadth of the statute in holding that the unexplained
possession of a gun in the coat pocket of an automobile
passenger did not justify a conviction of another
passenger for illegal possession.
In contrast, State v. Rodriguez, 141 N.J. Super. 7
(App. Div. 1976), certif. denied, 71 N.J. 495 (1976), held
that although defendant was a rear seat passenger and a
gun was found in the front console of an automobile, the
lower court improperly granted defendant’s motion for a
judgment n.o.v. on the charge of unlawful possession of
a weapon. See also, State v. Riley, 69 N.J. 217 (1976)
(where rifle was in back seat of car, constructive possession
of a rifle was proper finding); State v. Danzinger, 121 N.J.
Super. 44 (App. Div. 1972), certif. denied, 62 N.J. 191
(1973) (possession of a weapon inferred from proximity
of a weapon to passengers).
The current statute, N.J.S.A. 2C:39-2a, evinces a
legislative attempt to harmonize the former statute with
the cases that construed it. See State v. Ingram, 98 N.J.
489 (1985); State v. Bolton, 230 N.J. Super. 476 (App.
Div. 1989). See also, In the Matter of Two Seized Firearms,
127 N.J. 84 (1992), cert. denied sub nom. Sholtis v. New
Jersey, 506 U.S. 823 (1992) (the federal statute which
assures gun owners freedom to travel from state to state
with weapon legally possessed in their state of residence,
18 U.S.C. § 926A, did not preclude forfeiture in New
Jersey of a loaded handgun in a glove compartment being
transported by a Florida motorist and a loaded handgun
kept underneath and behind the driver’s seat).
B. Lack of Licenses or Permits
N.J.S.A. 2C:39-2b creates a presumption that an
individual does not have a license or permit for a weapon
until he proves otherwise. Cf. State v. Hock, 54 N.J. 526
(1969), cert. denied, 399 U.S. 930 (1970) (prosecution
need not prove defendant had no firearm permit where
defendant denied ownership). See State v. Harmon, 104
N.J. 189 (1986); State v. Johnson, 287 N.J. Super. 197
(1996); State v. Latimore, 197 N.J. Super. (App. Div.
1984); State v. McCandless, 190 N.J. Super. 75 (App. Div.
1983), certif. denied, 95 N.J. 210 (1983).
III. PROHIBITED WEAPONS AND DEVICES
(N.J.S.A. 2C:39-3)
N.J.S.A. 2C:39-3 prohibits the possession of certain
specified weapons including “destructive devices,”
sawed-off shotguns, silencers, etc. The section makes
possession of these weapons per se unlawful. State v. Lee,
96 N.J. 156, 160 (1984). Once the State proves
possession of these weapons beyond a reasonable doubt,
it has met its burden. State v. Dunlap, 181 N.J. Super. 71
(Law Div. 1981).N.J.S.A. 2C:39-3e prohibits possession of certain
weapons including gravity knives, switchblade knives,
blackjacks, etc. “without any explainable lawful purpose”
and exonerates possession of the specified weapons if
defendant comes forward with such a purpose. State v.
Lee, 96 N.J. 156 (1984). The subsection also creates a
rebuttable presumption that a defendant possesses a
weapon for an unlawful use. State v. Dunlap, 181 N.J.
Super. at 77. Because the statute’s presumption contains
the requisite qualities of trustworthiness, it has withstood
constitutional attack. Id. The statute is also not
unconstitutionally vague because the phrase “explainable
lawful purpose” plainly means that defendant may
produce evidence to show that he does not possess an
instrument for its use as a weapon. Id. at 78. See State v.
Blaine, 221 N.J. Super. 66 (App. Div. 1987).For cases testing the constitutionality of the prior
statute (N.J.S.A. 2A:151-41), see U.S. ex rel Ebron v.
Attorney General of State of N.J., 377 F. Supp. 396
(D.D.C. 1974); State v. Ebron, 122 N.J. Super. 552 (App.
Div. 1973), certif. denied, 63 N.J. 250 (1973); State v.
Horton, 98 N.J. Super. 258 (App. Div. 1967), certif.
denied, 51 N.J. 393 (1968).N.J.S.A. 2C:39-3g sets forth exceptions of the
possession offenses described in subsections a through f.
These exceptions inure to duly authorized military
personnel while actually on duty and to law enforcement
officers who are removing prohibited weapons from a
criminal at a crime scene. See P.B.A. Local 278 v. Degnan,
175 N.J. Super. 102 (Ch. Div. 1980). N.J.S.A. 2C:39-
3g also allows an individual to keep dum-dum bullets on
his premises, and licensed ammunition dealers to sell
dum-dum bullets provided that the dealers maintain
records of each purchaser of such ammunition.IV. POSSESSION OF WEAPONS FOR
UNLAWFUL PURPOSES (N.J.S.A. 2C:39-4)
Unlike N.J.S.A. 2C:39-3, N.J.S.A. 2C:39-4
prohibits possession of specified weapons if the actor
possesses them “with the purpose to use (them)
unlawfully against the person or property of another.”
Thus, proof of intent to use a weapon in the specified
manner is necessary for a conviction under this section.