Conviction for possession of a weapon for an unlawful
purpose (N.J.S.A. 2C:39-4d) does not merge with
conviction for armed robbery (N.J.S.A. 2C:15-1).
Contra, State v. Porter, 210 N.J. Super. 383, certif. denied,
105 N.J. 556, 557 (1986).
State v. Williams, 213 N.J. Super. 30 (App. Div.
1986). To prevent merger of conviction for possession of
a weapon for unlawful purpose with a conviction for
criminal homicide or assault, the judge should ask the
jury to determine, by separate verdicts, whether
possession was solely with the specific unlawful purpose
to use the weapon against the victim, or was the weapon
possessed with a broader unlawful purpose.
State v. Cooper, 211 N.J. Super. 1 (App. Div. 1986)
held that convictions for possession of a firearm for an
unlawful purpose (N.J.S.A. 2C:39-4a) and unlawful
possession of a handgun (N.J.S.A. 2C:39-5b) are not
included offenses and do not merge.
State v. Johnson, 203 N.J. Super. 127 (App. Div.
1985), held conviction for possession of a firearm for an
unlawful purpose (N.J.S.A. 2C:39-4a) does not merge
with conviction for aggravated assault (N.J.S.A. 2C:12-
1b(1)) where defendant possessed the firearm before he
encountered his victim.
State v. Jones, 94 N.J. Super. 137 (App. Div. 1967)
held that the crime of possession of a knife with the
purpose to use it against another (N.J.S.A. 2A:152-56
(repealed 1979; see N.J.S.A. 2C:39-4)), merges with
crime of armed robbery.
D. Jury Instructions
State v. Mello, 297 N.J. Super. 452 (App. Div. 1997),
held that the purpose to use the weapon unlawfully must
be proved particularly and cannot be inferred from proof
that the weapon was unlicenced.
State v. Petties, 139 N.J. 310 (1995), held that
defendant’s acquittal on charges of aggravated assault for
pointing a firearm at another did not preclude his
conviction for possession of a weapon for an unlawful
purpose under N.J.S.A. 2C:39-4a and reasoned that an
acquittal on a substantive crime involving misuse of gun
does not establish that prior possession has always been
for lawful purpose. But see, State v. Turner, 310 N.J.
Super. 423 (App. Div. 1998) (acquittal of aggravated
assault precluded conviction of possession of a weapon for
an unlawful purpose).
State v. Harmon, 104 N.J. 189 (1986). Jury
instructions must adequately explain that the mental
element of “unlawful purpose” in N.J.S.A. 2C:39-4 and
require a specific finding that the accused possessed a
weapon with the conscious, objective desire or specific
intent to use the weapon to commit an illegal act, and not
for some other purpose.E. IndictmentState v. Holsten, 223 N.J. Super. 578 (App. Div.
1988). Evidence that victim was hit with a BB pellet
gives rise to an inference of an unlawful purpose sufficient
to return an indictment under N.J.S.A. 2C:39-4a.V. UNLAWFUL POSSESSION OF WEAPONS
(N.J.S.A. 2C:39-5)
N.J.S.A. 2C:39-5a, b and c, respectively, prohibit
the possession of machine guns, handguns, and rifles and
shotguns without a license or a firearms purchaser
identification card. Thus, the absence of the license or
permit is an element of the offense which the State must
prove beyond a reasonable doubt. See State v. Martini,
131 N.J. 176 (1993); State v. Vick, 117 N.J. 288 (1989);
State v. Harmon, 104 N.J. 189 (1986); State v. Ingram, 98
N.J. 489 (1985). That defendant is not aware of license
or permit requirement is no defense. State v. Mahoney,
226 N.J. Super. 617 (App. Div. 1988).N.J.S.A. 2C:39-5d makes possession of other
weapons unlawful if they are possessed “under
circumstances not manifestly appropriate for such lawful
uses as (the weapons) may have... .” The intent to use
unlawfully is not required. See State v. Lee, 96 N.J. 156
(1984), overruling State in the Interest of T.E.T., 184 N.J.
Super. 324 (App. Div. 1982), certif. denied, 94 N.J. 508
(1983); State v. Wright, 96 N.J. 170 (1984), appeal
dismissed, 469 U.S. 1146 (1985); State v. Colon, 186 N.J.
Super. 355 (App. Div. 1982). See also, State v. Irizarry,
270 N.J. Super. 669 (App. Div. 1994) (circumstances of
possession control, not defendant’s subjective intent).
Cf. State v. Brown, 138 N.J. 481 (1994) (reasoning that
since essence of offense is possession without a permit or
other specific circumstances, N.J.S.A. 2C:39-5 crimes
rarely merge with substantive offense).N.J.S.A. 2C:39-5e prohibits possession of a firearm
at an educational institution without prior authoriza-
tion, regardless of whether there exists a valid permit or
firearms purchaser identification card for the firearm. See
State v. Blaine, 221 N.J. Super. 66 (App. Div. 1987).