Unbeknownst to many, it is most certainly possible to be charged with unlawful possession of a weapon that does not belong to you in New Jersey. Possession does not require ownership—it requires physical possession or intent and capacity to exercise control over the weapon.
Under New Jersey weapons law, it is illegal to knowingly be in possession of a firearm without a valid permit. It is also unlawful to possess certain weapons under any circumstances, including hollow-nose bullets and high capacity magazines. Possession requires knowingly procuring or receiving a weapon and can be actual or constructive. Actual possession is when an individual physically has possession of the weapon on their person. Constructive possession does not require physical possession, but rather knowledge of the weapon’s presence and intent or capacity to exercise control over the weapon.
How Unlawful Possession of a Weapon Occurs
According to the applicable New Jersey Statute, 2C:39-5b, you are in unlawful possession of a weapon if you: knowingly possess a machine gun without a proper license, carry a handgun without a permit, knowingly possess any rifle or shotgun without first obtaining a firearms purchaser ID card, knowingly possess any loaded rifle or shotgun, or possess any items considered a “weapon,” unless otherwise permitted. The term weapon is applied broadly to anything readily capable of lethal use or of inflicting serious bodily injury.
Presumption of Possession in NJ Weapons Cases
In the State of New Jersey, there is a presumption of weapons possession in motor vehicles. This means, if a law enforcement officer sees a weapon in plain view in a car during a routine traffic stop, there is a legal presumption that each and every person in the vehicle has unlawful possession of the weapon. This applies to firearms and other weapons.
Generally, in criminal law the prosecution has the burden to prove each element of a crime beyond a reasonable doubt. However, in cases where there is a legal presumption—like in the case of a firearm or other weapon in a motor vehicle—the burden shifts to the accused to establish that they were not in possession of the weapon.
So, if you are a passenger of a vehicle that is pulled over and a law enforcement officer sees a handgun in plain view, you and every other person in the vehicle may be charged with unlawful possession of a weapon and there will be a legal presumption that you were in possession of the weapon, even though you did not own it.
To overcome this presumption, you will need to convince the court that you did not know the gun was there and you did not have constructive possession of the weapon because you did not have the intent or capacity to exercise control over the weapon. In these high stakes situations, it is best to have an experienced criminal defense lawyer executing the most effective defense strategy on your behalf.
Charged with Unlawful Possession of a Weapon in Union County, NJ?
If you have been charged with unlawful possession of a weapon that does not belong to you, it is important to remember that the fact that the weapon did not belong to you will not be a defense. You can still be charged with unlawful possession of a weapon even if someone else owns the gun or put the gun in the place where law enforcement saw it.With penalties including up to 10 years in prison depending on the weapon involved, it is imperative to mount a comprehensive and compelling defense against weapons possession charges in Union County, NJ.
The experienced criminal defense lawyers at Proetta & Oliver are ready to fight the charges against you for unlawful possession of a weapon that isn’t yours. Contact our Cranford office today at (908) 838-0150 or send us an email to arrange a free consultation. We serve clients throughout Union County, including in Linden, Clark, Scotch Plains, Elizabeth, New Providence, and Mountainside.