PUBLICATION OF PLANS OR INSTRUCTIONS FOR
[Countof] [T]he indictment charges defendant with publishing plans or instructions dealing with the manufacturing of burglars tools.That section of our statutes provides that:
Any person who publishes plans or instructions dealing with the manufacture or use of any engine, machine, tool or implement adapted, designed, or commonly used for committing or facilitating the offense of,with the purpose that such publication be used committing or facilitating that offense, is guilty of an offense.
In order for defendant to be found guilty of this offense, the State must prove each of the following elements beyond a reasonable doubt:
(1)that the defendant published plans or instructions dealing with an engine, machine, tool or implement adapted, designed, or commonly used for committing or facilitating the offense of;
(2) thathis/herpurpose in publishing such plans or instructions was that they be used or employed to commit or facilitate that offense.
The first element that the State must prove beyond a reasonable doubt is that defendant published plans or instructions dealing with an engine, machine, tool or implement adapted, designed, or commonly used for committing or facilitating the offense of__________. Publish means to make the plans or instructions available to others.The State alleges that the plans or instructions were for [identify name or type of burglars tool(s) described in the plans or instructions].
The engine, machine, tool or implement that defendant is charged with publishing the plans or instructions for must be specially or specifically designed or adapted or commonly used for commission or facilitation of this offense and not merely be something designed or adapted or commonly used for some other purpose that can be or is used for committing or facilitating this offense.
The elements of the offense ofare [see appropriate Model Jury Charge] OR [I have already defined for you (OR I will define for you) the elements of the offense ofin the instructions regarding countof the indictment].
The second element that the State must prove beyond a reasonable doubt is that defendants purpose was that the plans or instructions for the engine, machine, tool or implement thathe/shepublished would be used for committing or facilitating the offense of_________.A person acts purposely with respect to the nature ofhis/herconduct or a result thereof if it ishis/herconscious object to engage in conduct of that nature or to cause such a result.A person acts purposely with respect to attendant circumstances ifhe/sheis aware of the existence of such circumstances orhe/shebelieves or hopes that they exist.
Purpose is a condition of the mind that cannot be seen and that can be determined only by inferences from conduct, words or acts.A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts.Therefore, it is not necessary that the State produce witnesses to testify that an accused said thathe/shehad a certain state of mind whenhe/sheengaged in a particular act.It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of defendants acts and conduct, from all thathe/shesaid and did at the particular time and place, and from all surrounding circumstances.
If the State has failed to prove each element of this offense beyond a reasonable doubt, then you must find the defendant not guilty.If the State has proven each element of this offense beyond a reasonable doubt, then you must find defendant guilty.
CHARGE IF APPROPRIATE:
POSSESSION OF PLANS OR INSTRUCTIONS FOR BURGLARS TOOLS
(lesser included offense)
As part ofhis/herdenial of guilt to this charge, defendant asserts thathe/shedid not publish the plans or instructions for the burglars tools, but merely possessed them without having any role or part in their publication.It is the States burden to prove beyond a reasonable doubt that defendant published the plans or instructions rather than merely possessed them.
The word possess as used in criminal statutes signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character.
Thus, the person must know or be aware thathe/shepossesses the item (in this case), andhe/shemust know what it is thathe/shepossesses or controls (namely, plans or instructions for burglars tools).
[Where applicable charge the following: this possession cannot merely be a passing control that is fleeting or uncertain in its nature.]In other words, to possess within the meaning of the law, the defendant must knowingly procure or receive the item possessed or be aware ofhis/hercontrol thereof for a sufficient period of time to have been able to relinquishhis/hercontrol ifhe/shechose to do so. (Define knowingN.J.S.A. 2C:2-2 and any other definition relevant to the item allegedly possessed.)
A person may possess(an item) even though it was not physically onhis/herperson at the time of the arrest, ifhe/shehad in fact, at some time prior tohis/herarrest, had control over it.
When we speak of possession, we mean a conscious, knowing possession.The law recognizes two kinds of possession:they are actual possession and constructive possession.
A person is in actual possession of a particular article or thing whenhe/sheknows what it is:that is,he/shehas knowledge of its character and knowingly has it onhis/herperson at a given time.
Constructive possession means possession in which the person does not physically have the property, but though not physically on ones person,he/sheis aware of the presence of the property and is able to and has the intention to exercise control over it.
A person who, although not in actual possession, has knowledge of its character, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.
The law recognizes that possession may be sole or joint.If one person alone has actual or constructive possession of a thing, possession is sole.If two or more persons share actual or constructive possession of a thing, possession is joint; that is, if they knowingly share control over the article.
If the State has failed to prove each element of this offense beyond a reasonable doubt, then you must find the defendant not guilty.If the State has proven each element of this offense beyond a reasonable doubt, then you must find defendant guilty of publishing plans or instructions for burglars tools.If the State has not proven beyond a reasonable doubt that defendant published rather than possessed the plans or instructions, but has proven all of the other elements beyond a reasonable doubt, then you must find the defendant guilty of possession of plans or instructions for burglars tools.
Specify here, and at every other relevant point in the charge, the offense in chapter 20 of this Title or offenses involving forcible entry into premises for which defendant is charged with publishing plans or instructions.
State v. Gertrude, 309N.J. Super.354, 358 (App. Div. 1998).
SeeCannel,Criminal Code Annotated, Comments 2. (second paragraph) and 4. toN.J.S.A.2C:5-5 ([T]he linkage of the manufacture of implements with the publishing of plans suggests that the higher penalty was intended for those persons who produce a specialized implement.Such persons pose a greater danger to the public).