Types of Possession of a Weapon for an Unlawful Purpose (“PWUP”)

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• Firearms:  Under N.J.S.A. 2C:39-4(a), any person who has in his or her possession a firearm with the purpose to use it unlawfully against another person or property is guilty of a crime in the 2nd degree, which is punishable by up to 10 years in New Jersey State Prison. 

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• Explosives:  Under N.J.S.A. 2C:39-4(b), any person who has in his or her possession or carries any explosive substance with a purpose to use it unlawfully against another person or property is guilty of a crime of the 2nd degree, which is punishable by up to 10 years in New Jersey State Prison.

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• Destructive Devices:  Under N.J.S.A. 2C:39-4(c), any person who has in his or her possession any destructive device with a purpose to use it unlawfully against the person or property of another is guilty of a crime in the 2nd degree, which is punishable by up to 10 years in New Jersey State Prison.

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• Other Weapons:  Under N.J.S.A. 2C:39-4(d), any person who has in his or her possession any weapon (except for a firearm), with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the 3rd degree, which is punishable by up to 5 years in New Jersey State Prison.

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• Imitation Firearms:  Under N.J.S.A. 2C:39-4(e), any person who has in his possession an imitation firearm under circumstances that would lead an observer to reasonably believe that it is possessed for an unlawful purpose is guilty of a crime in the 4th degree, which is punishable by up to 18 months in New Jersey State Prison.

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Types of Penalties for PWUP

 

PWUP can be either a 2nd,  3rd, or 4th degree offense, depending on which type of weapon is used.

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• 2nd Degree Offense:  When the weapon is a firearm, explosive, or destructive device, the offense is classified as a 2nd degree offense.  2nd degree offenses carry a presumption of imprisonment and a sentence of up to 10 years in prison.

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• 3rd Degree Offense:  When the weapon any other weapon, the offense is classified as a 3rd degree offense.  3rd degree offenses carry a sentence of up to 5 years in prison (there is no presumption of imprisonment for a 3rd degree offense, meaning a person can get probation for this type of offense).

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• 4th Degree Offense:  When the weapon is an imitation firearm, the offense is classified as a 4th degree offense.  4th degree offenses carry a maximum sentence of up to 18 months in prison (there is no presumption of imprisonment for a 4th degree offense, meaning a person can get probation for this type of offense).

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Miscellaneous Issues With PWUP

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• Possession vs. Constructive Possession:  “Possession,” as used in this statute, does not have to be actual physical possession (i.e., holding the weapon or having it on your person).  All that is required is intentional control and dominion over the weapon, plus knowledge that it is a weapon.  Constructive possession is sufficient.  See N.J.S.A. 2C:39-4, Comment 2.

  • For example, if a gun is found in the trunk of a person’s car, the person is not in physical possession of that gun (i.e., he or she is not holding it and it is not found on the person), but nevertheless, the law deems that person to be in possession of the weapon.  In this example, the person does not physically have the gun, but he or she is aware that the item is present and is able to (or has the intention to) exercise control over the gun.  So a person who has knowledge of the character of the gun and knowingly has both the power and the intention to exercise control over it, is then in constructive possession of the gun.

  • ​Some factors to consider when deciding whether a person was in constructive possession of a weapon:

    • Placement and accessibility of the weapon;

    • Defendant’s access to and connection with the place where the weapon was found;

    • Defendant’s proximity to the place where the weapon was found;

    • Defendant’s demeanor when confronted by police after the weapon was found;

    • Whether the defendant made any statements implicating himself or herself after the weapon was found;

    • Whether the defendant possessed other illegal items on his or her person or property when the weapon was found; or

    • Any other evidence deemed to be part of the totality of the circumstances,

  • See New Jersey Model Jury Charge RE: “Possession.”

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• ​Possession of a Weapon in a Motor Vehicle – Presumptions:  Under N.J.S.A. 2C:39-2, when a firearm, weapon, destructive device, silencer, or explosive is found in a vehicle, it is presumed to be in the possession of the occupant if there is but one. If there is more than one occupant in the vehicle, it shall be presumed to be in the possession of all, except under the following circumstances:

1.  When it is found upon the person of one of the occupants, it shall be presumed to be in the possession of that occupant alone;

2.  When the vehicle is not a stolen one and the weapon or other instrument is found out of view in a glove compartment, trunk or other enclosed customary depository, it shall be presumed to be in the possession of the occupant or occupants who own or have authority to operate the vehicle; and

3. When the vehicle is a taxicab and a weapon or other instrument is found in the passenger's portion of the vehicle, it shall be presumed to be in the possession of all the passengers, if there are any, and if not, in the possession of the driver.

 

• Unlawful Purpose:  The State must prove beyond a reasonable doubt that the defendant had a purpose to use the weapon in a manner that is prohibited by law.  The State must show that it was the defendant’s conscious objective, design, or specific intent to use the weapon against a person or their property in an unlawful manner.  An unlawful purpose may be inferred from all of the surrounding circumstances of the case.