State v. Lee, 96 N.J. 156, 160 (1984). See State v. Villar,
150 N.J. 503 (1997) (defendant’s weapon possession
conviction was not precluded by the fact that his original
purpose in possessing the beer stein was lawful); State v.
Daniels, 231 N.J. Super. 555 (1989) (element of intent
under N.J.S.A. 2C:39-4 was not determined as of time
when the weapon was originally possessed).
A. Self-Defense
State v. Moore, 158 N.J. 292 (1999). In a majority
opinion written by Justice Coleman, the Supreme Court
of New Jersey held that N.J.S.A. 2C:3-11b, which
provides that the brandishing of a deadly weapon for the
limited purpose of scaring off a potential attacker is not
deadly force, does not entitle a defendant to a self-defense
charge based on non-deadly force rules once the weapon
is actually discharged.
State v. Blanks, 313 N.J. Super. 55 (App. Div. 1998),
held that defendant was entitled to self-defense charge,
even though he did not admit using his handgun in self-
defense and intentionally killing his aggressor.
State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998),
reversed defendant’s conviction for fourth degree
aggravated assault by pointing a firearm. Determining
that self-defense was the key trial issue, the court
concluded that the self-defense instruction was
misleading and probably led to an unjust result. The
reviewing court questioned whether the individuals at
whom defendant pointed a firearm were even “victims.”
In addition, the court believed the mention of self-
defense as to the possession of a weapon charge, “added
to other difficulties” in the self-defense charge itself. Also,
the Appellate Division could not grasp how one arming
himself or herself with a gun for lawful protective
purposes could not thereafter point that gun at another
without justification.
State v. Harmon, 104 N.J. 189 (1986). Defendant,
after arguing with another individual, armed himself
with a BB gun. During a subsequent encounter with the
same man, defendant pointed the BB gun at him. The
Court held that defendant’s decision to carry a BB gun as
a precaution before confronting his victim negated the
intent required for possession of a firearm for an unlawful
purpose within the meaning of N.J.S.A. 2C:39-4.
B. Concealment
The predecessor to N.J.S.A. 2C:39-4, N.J.S.A.
2A:151-14, was contained in Article 5 of the former
statute. That article was entitled “Carrying Concealed
Weapons.” The statute itself made no reference to
concealment, however, and consequently, the courts held
that concealment was not an element of the crime. State
v. Oritz, 124 N.J. Super, 139 (App. Div. 1973); State v.
Ebron, 122 N.J. Super. 552 (App. Div. 1973), certif.
denied, 63 N.J. 250 (1973).N.J.S.A. 2C:39-4, and chapter 39 within which it is
contained, omit any reference to concealment as a
necessary element of weapons offenses, except that
N.J.S.A. 2C:39-2 sets up a presumption of possession as
to firearms concealed in automobile glove compartments,
trunks or other enclosures. But see, State v. Huff, 148 N.J.
78 (1997) (evidence sufficient to support a first-degree
armed robbery conviction, concluding that it was
“objectively reasonable for the victim to have believed
defendant’s simulation of a concealed gun”).C. MergerState v. Carswell, 303 N.J. Super. 462 (App. Div.
1997), reversed defendant’s convictions for aggravated
assault and weapons offenses because the trial judge
charged the jury on merger. The inclusion of the merger
charge could have led the jury to compromise their
verdict, particularly coming as it did after jurors
expressed three times their difficulty in reaching a
unanimous verdict with regard to the charge of possession
of a weapon for an unlawful purpose.State v. Bull, 268 N.J. Super. 504 (App. Div. 1993),
certif. denied, 135 N.J. 304 (1994), held that defendant’s
conviction for possession of a handgun without a permit,
N.J.S.A. 2C:39-5b, does not merge with offense of
robbery while armed with the same gun; however, armed
robbery and unlawful possession of a weapon under
N.J.S.A. 2C:39-4d convictions should have been
merged, where neither indictment, jury charge nor
verdict identified which of two knives allegedly involved
in an assault formed the basis for conviction.State v. Bowens, 108 N.J. 622 (1987) held a
conviction for possession of a weapon for an unlawful
purpose (N.J.S.A. 2C:39-4a) does not merge with
conviction for aggravated manslaughter (N.J.S.A. 2C:11-
4a), because each crime requires proof of wholly different
facts.State v. Jones, 213 N.J. Super. 562 (1986), held a
conviction for possession of a weapon for an unlawful
purpose (N.J.S.A. 2C:39-4d) merges with conviction for
unlawful possession of a weapon (N.J.S.A. 2C:39-5d).