Similar to Pennsylvania (VUFA Offenses), New Jersey maintains different classifications of weapons and firearms charges. If you gun or firearm case is going to trial in New Jersey, your criminal defense lawyer should first evaluate possible suppression issues before looking at possible trial defenses. This article, however, focuses on the elements of the actual crimes which will become trial issues, if your case gets to this stage.
The New Jersey Code of Criminal Justice contains three (3) classes of possessory weapon offenses. The first pertains to the mere possessing of certain weapons which constitute a “per se offense”. A sub category of this class pertains to weapons or firearms which are still crimes, unless the defendant can present a lawful explanation as to the purpose of that possession.
The following devices are strictly prohibited in New Jersey:
- Destructive devices (crime of the third degree)
- Any instrument or object designed to explode or produce uncontrollable combustion
- Sawed off shotgun (crime of the third degree)
- Any shotgun having a barrel or barrels less than 18 inches in length measured from the breach to the muzzle.
- Firearm silencer (crime of the fourth degree)
- Any instrument causing the lessening or muffling of the noise of the firing of any gun, revolved, pistol, or other firearm.
- Defaced firearms (crime of the fourth degree)
- Any defaced firearm means any removable, covering, altering, or destroying the make, model, or designation or distinguishing serial number of a firearm
The sub-category of crimes pertaining to the unlawful possession of weapons or firearms pertains to weapons that are considered unlawful unless the owner/possessor has an “explainable purpose”. See NJSA 2c:39-4. These crimes are considered crimes of the fourth degree and they are as follows:
- Gravity knife
- Switchblade knife
- Metal knuckles
- Sand club
- Stun guns
This section wouldn’t apply to authorized pistol or rifle clubs, collectors, dealers, or if these items are kept within a person’s home.
The second class of weapons offenses in New Jersey, prohibits the possession of a firearm unless a person possesses a registration for that firearm or handgun. The New Jersey licensing provision, however, which applies to pistols and other firearms isn’t applicable to the above prohibited weapons and devices. The degree of the offense depends on the type of weapon or the device.
In New Jersey, it’s presumed that a defendant doesn’t possess a license, permit, or is not registered until the defendant establishes the contrary. While this would appear to shift the burden of proof in a criminal prosecution, the New Jersey Supreme Court has upheld it as constitutional. See State v. Ingram. While the Defendant must establish proof of a permit or license, the prosecution must still meet the burden of proof of beyond a reasonable doubt with regards to the actual possession of the weapon or firearm. See NJSA 2c:39-5.
The third class of New Jersey weapons offenses makes it a crime to possess, even a lawful weapon if the State can establish that the person intended to use the weapon against another person or property of another. This final class of weapons or firearm offenses in New Jersey pertains to the possession of a weapon for unlawful purpose.
The possession of a firearm, explosive, or destructive device with the purpose of using it unlawfully against another person or another person’s property is a crime of the second degree in New Jersey. The possession of a weapon other than a firearm with the purpose of using it unlawfully against a person or a person’s property is a crime of the third degree.
This crime is committed when a person arms himself with an actual purpose of using the weapon or firearm against another in a criminal manner. Self-defense is still an available argument for an accused person but, unlike the crime of murder or aggravated assault in New Jersey, the test isn’t whether the person reasonably believes that he needed the weapon but whether he had a “honest belief” that he needed the weapon for self-defense. The State, however, doesn’t have to establish a specific unlawful purpose and, in addition to self-defense, intoxication is also an available defense for the accused in these matters.
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