Our Weapons Lawyers Include A Former Gun Task Force Director That Has Successfully Defended Many N.J.S.A. 2C:39-4.1 Charges
New Jersey has continually amended its laws to tighten the penalties for possession of firearms or other weapons while committing a criminal offense. This is precisely what lawmakers did when they enacted N.J.S.A. 2C:39-4.1 to establish a separate charge for those who possess a handgun, rifle, shotgun or other weapon while in the course of committing, attempting or conspiring to commit a crime relating to distribution of cocaine, heroin, marijuana, MDMA or other former of controlled dangerous substance (“CDS”). These charges are very serious and expose those accused to years of imprisonment. The good news is that our criminal attorneys have achieved countless stories of success defending clients arrested or indicted for gun violations such as possession of a firearm while distributing drugs. Our team has qualifications to achieve a similar outcome for you, including:
- Over 200 years of combined experience representing those charged with distribution of cds/drugs while in possession of a firearm
- Ten (10) lawyers who specialize exclusively in defending those accused of violating the law
- Former county prosecutors that have served as Director of Major Crimes, the Gun Task Force, Juvenile Division and even an entire Trial Bureau
- Certified criminal trial attorneys
- A long history of dismissals and other favorable outcomes in handgun and other weapon cases
- Offices throughout New Jersey that are near you
When you hire our defense firm, the Law Offices of Jonathan Marshall, you not only get the benefit of our extensive experience but also the skill of lawyers who are former prosecutors dedicated to ensuring that you get the best defense possible. Call us at 855-450-8310 for a free consultation with an attorney at our firm.
Weapon Possessed While Distributing Drugs
The law addressed in this discussion, “Possession of weapons during commission of certain crimes; penalties“, is designed to enhance the penalties that someone faces if they possess a firearm or other weapon while distributing, selling or engaging in related drug/cds activities.
There are three different scenarios where a violation of this law exposes an individual to a separate second degree crime. First and foremost, subsection (a) of this law, specifically N.J.S.A. 2C:39-4.1a, triggers this offense where the weapon possessed during the course of the drug activities is a firearm, for example, a handgun. The vast majority of cases filed by prosecutors arise out of this provision and typically involve a companion charge for unlawful possession of a firearm or even a certain person offense where the accused has a prior exclusionary criminal record. N.J.S.A. 2C:39-4.1b of this law applies where the weapon is something other than a firearm and is being used for an unlawful purpose against another person or property. The third and final scenario for this offense arises where the weapon isn’t a firearm and is possessed under circumstances not manifestly appropriate for such lawful uses. A violation of 2C:39-4.1c applies under these circumstances.
In order any one of the three forms of N.J.S.A. 2C:39-4.1 to come into play, the weapon must be possessed by the accused while committing, attempting to commit, or conspiring to commit any of the following drug offenses:
- Leader of a Narcotics Trafficking Network – N.J.S.2C:35-3
- Maintaining a CDS Production Facility – N.J.S.A. 2C: 35-4
- Manufacturing, Selling or Distributing CDS – N.J.S.A. 2C:35-5
- Distribution of GHB – N.J.S.A. 2C:35-5.2
- Distribution of Synthetic Cannabinoids – N.J.S.A. 2C:35-5.3
- Employing a Juvenile in the Distribution of CDS – N.J.S.A. 2C:35-6
- Distribution of CDS in a School Zone – N.J.S.A. 2C:35-7
- Distributing CDS in a Public Park or Housing Project – N.J.S.A. 2C:35-7.1
- Distribution of Imitation Firearms – N.J.S.A. 2C:35-11
Elements of this Offense. There are three (3) elements that must be established, beyond reasonable doubt, to prove a violation of 2C:39-4.1(a): (1) the incident involved a firearm; (2) the firearm was possessed by the accused; and (3) at the time of the indictment, the accused was in the course of committing, attempting to commit, or conspiring to commit one of the drug/CDS offenses set forth under 2C:39-4.1(a). The elements of proof under N.J.S.A. 2C:39-4.1(b) and 2C:39-4.1(c) are slightly different. The state must also demonstrate that a defendant was in either in possession of weapon for unlawful purpose under subsection b or that there was unlawful possession of a weapon when subsection c is the violation.
Penalties for Possessing a Weapon or Firearm During Drug Crime
It is a Second Degree Crime where a firearm is the weapon involved in an alleged violation under this law. A Third Degree offense applies to weapons other than a firearm except where the non-firearm is being used for an unlawful purpose, in which case the charge escalates to a Second Degree as well. A second degree crime carries a presumption of incarceration and a prison sentence of 5 – 10 years. A third degree conviction triggers jail of up to 5 years. Any prison sentence imposed under 2C:39-4.1 must be served consecutively to any imposed for the underlying drug offense such as conspiracy to distribute CDS.
Important Case Law
There are significant decisions interpreting the charge known as possession of a weapon during CDS activities. The following are the related court opinions:
State v. Harris, 384 N.J.Super. 29 (App.Div.2006). Since the stated reason for enactment of 2C:39-4.1 was to reduce violence by deterring involvement of firearms with drug activities, all the state has to establish is the presence of rifle, shotgun, handgun or other firearm. The prosecutor isn’t required to demonstrate intent in order to secure a conviction for possession of a firearm while committing a narcotics offense.
State v. Soto, 385 N.J.Super. 257 (App.Div.2006). The state is required to prove, beyond reasonable doubt, that a firearm and cocaine, heroin, marijuana or anther drug were simultaneously possessed during the course of commission of an offense outlined in 2C:39-4.1.
State v. Rodriguez, 466 N.J.Super. 71 (App.Div.2021). When a person is convicted of both possession of a firearm while in the course of committing a drug distribution or possession with intent to distribute crime and the underlying offense, for example, distribution of CDS, the court must impose consecutive sentences.
Possession of a Firearm During a CDS Offense in New Jersey
The most important thing for you is to protect your rights by speaking to one of our lawyers immediately. If you or someone you love is in trouble for possessing a gun or weapon while allegedly committing one of the above drug or CDS crimes, it is certainly in your best interests to consult a skilled attorney as soon as possible so that your defense is not prejudiced. The attorneys at the Law Offices of Jonathan F. Marshall are well equipped to help you in this respect and are available to defend charges under 2C:39-4.1 anywhere in New Jersey. Call us at 855-450-8310 for a free consultation with a lawyer on our staff or to schedule a meeting in one of our offices near you.
Other Helpful Resources
One of the best ways for someone to learn what they are up against after being charged with an offense, is to review the Model Jury Charge that applies in their case. The following is the charge that would be read to jurors presiding over your matter:
New Jersey Model Jury Charge
POSSESSION OF FIREARM WHILE COMMITTING CERTAIN DRUG CRIMES
(N.J.S.A. 2C:39-4.1a)
[Defendant] is charged with possessing a firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of certain laws. This charge is based on a statute which reads:
Any person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of [certain drug crimes] is guilty of a crime …
For you to find [defendant] guilty of this charge, the State must prove beyond a reasonable doubt the following elements:
- That there was a firearm.
- That [defendant] possessed the firearm.
- That, at the time alleged in the indictment, [defendant] was in the course of committing, attempting to commit, or conspiring to commit, [the specific drug offense charged].
The first element that the State must prove beyond a reasonable doubt is that there was a firearm. A firearm means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances.
The second element that the State must prove beyond a reasonable doubt is that [defendant] possessed the firearm. The word possess as used in criminal statutes signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character. Therefore, [defendant] must have known or have been aware that he/she possessed the firearm, and he/she must have known that what he/she possessed was a firearm. The possession cannot merely be a passing control, fleeting or uncertain in its nature. So, to possess within the meaning of the law, [defendant] must have knowingly procured or received the firearm or must have been aware of his/her control of it for a sufficient period of time to have been able to relinquish control if he/she chose to do so. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of the high probability of their existence. A person acts knowingly as to a result of his conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. Knowing, with knowledge, or equivalent terms have the same meaning.
Possession means a conscious, knowing possession. Someone may possess an object even though it was not physically on his/her person at the time if he/she had in fact at some time prior to his/her arrest control over it.
Possession may be either actual or constructive. A person is in actual possession of an item if he/she knows what it is [that is, he/she has knowledge of its character] and knowingly has it on his/her person at a given time. Alternatively, possession may be constructive, instead of actual. Constructive possession is possession in which the person does not physically have the property, but although the property is not physically on his/her person, he/she is aware of the presence of the property and is able to and has the intention to exercise control over it. So, a person who, although not in actual possession, has knowledge of its character, and 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.
Similarly, possession can be either 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 over a thing, they possess the thing jointly if they knowingly share control over it.
[If possession is in a motor vehicle: charge Model Jury Charge on Possession of Weapon, etc., in Motor Vehicle, per N.J.S.A. 2C:39-2].
“Knowingly” refers to a condition of the mind. It cannot be seen. Often, it can be determined only by inferences drawn from a defendant’s conduct, words or acts as presented in the evidence you have heard and seen. So, it is not necessary that the State produce a witness or witnesses to testify that an accused said, for example, that he acted purposely when he/she engaged in the conduct with which he/she is charged. You may find that proof of “knowingly” has been furnished beyond a reasonable doubt by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct under investigation as you have heard from the evidence.
The third element that the State must prove beyond a reasonable doubt is that [defendant] possessed the firearm while he/she was in the course of committing, attempting to commit, or conspiring to commit the crime of . The term “in the course of committing” means that, at the time [defendant] possessed the weapon, he/she was also committing a drug crime, namely . The term “attempting to commit” means that, at the time [defendant] possessed the weapon, he/she was also purposely engaged in conduct which would constitute [the stated drug crime] , if the attendant circumstances were as a reasonable person would believe them to be; or doing anything with the purpose of causing the result which is a specific element of [the stated drug crime] , or purposely doing anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of that crime.
The term “conspiring to commit” means that, at the time [defendant] possessed the weapon, he/she also had the purpose of promoting or facilitating the commission of [the stated drug crime] and either (1) agreed with another person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime, or (2) agreed to aid another person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
If the State has proven each of the elements of this offense beyond a reasonable doubt, [defendant] must be found guilty of this charge. However, if the State has failed to prove, beyond a reasonable doubt, any one of the elements of this offense, you must find him/her not guilty of this charge.
