What is NJ 2C:39-4.1 – Possession of a Weapon During CDS/Drug Offense?

Facing a charge under N.J.S.A. 2C:39-4.1 can be overwhelming, especially because the statute is designed to impose some of New Jersey’s harshest penalties for anyone accused of possessing a weapon during a drug offense. These cases often involve complicated facts, aggressive prosecution strategies, and high mandatory prison exposure. A Bergen County criminal defense attorney can help explain how this law works and why even something as simple as a firearm locked away in a home or vehicle can trigger serious second-degree charges when drugs are involved.

Because these cases are typically handled in the local Superior Court serving North Jersey, defendants often move quickly from arrest to their first appearance. Many investigations begin inside or around major transportation hubs such as Newark Penn Station and Secaucus Junction, where law enforcement conducts surveillance based on patterns of movement they believe indicate drug distribution. These high-traffic, heavily monitored settings frequently serve as the starting point for 2C:39-4.1 investigations long before an arrest is made.

Understanding this statute is critical before making any decisions about your case. A New Jersey gun crime lawyer can guide you through the legal elements the State must prove and the defenses that may apply to your situation, including challenges to the search, the alleged drug offense, or the theory of possession. If you or a loved one has been charged under N.J.S.A. 2C:39-4.1, contact Lustberg Law Offices, LLC at (201) 880-5311 to get the experienced legal help you need.

Defining the Offense: What N.J.S.A. 2C:39-4.1 Actually Says

New Jersey’s statute N.J.S.A. 2C:39-4.1, titled “Weapons; controlled dangerous substances and other offenses, penalties,” is intentionally broad. It was drafted to keep prosecutors from being limited to cases involving only guns. Instead, the law sweeps in virtually any type of weapon, depending on the circumstances of possession during a drug crime.

Cases prosecuted under this statute frequently arise from arrests made in large industrial or shipping areas such as the Port Newark–Elizabeth Marine Terminal, where federal and state agencies closely monitor cargo movement and warehouse activity. Prosecutors may argue that these expansive facilities provide opportunities for concealed CDS storage and access to weapons allegedly used to protect distribution operations, making them natural focal points for early investigative efforts.

The statute contains three primary subsections. Each one targets different types of weapons and different levels of intent. Importantly, all violations under the statute are classified as second-degree crimes, which carry:

• A presumption of incarceration
• A sentencing range of five to ten years in New Jersey state prison
• A common misconception is that this law applies only to firearms. The text of the statute makes clear that this is not the case.

Subsection 2C:39-4.1(a): Possession of a Firearm

This is the subsection prosecutors rely on most often. It provides:

“Any person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit [a predicate drug offense]…is guilty of a crime of the second degree.”

This covers any firearm, including handguns, rifles, and shotguns. Significantly, the State does not need to prove that the gun was:

• Used
• Displayed
• Brandished
• Loaded
• Or even operable

For example, if officers stop a vehicle near a residential area and claim a firearm was stored in the glove compartment during a suspected CDS transaction, the State may argue that this alone satisfies the possession requirement under subsection (a). Similar allegations often emerge around Port Authority commuter facilities or in secured parking structures adjacent to major transit centers, where officers assert that a weapon within a vehicle or bag was accessible during suspected drug activity. Because prosecutors characterize these locations as distribution hubs, they frequently attempt to use them to establish the required nexus between the gun and the drug offense.

Subsection 2C:39-4.1(b): Possession of Other Weapons (With an Unlawful Purpose)

This subsection expands the statute beyond guns:

“Any person who has in his possession any weapon, except a firearm, with a purpose to use such weapon unlawfully against the person or property of another…while in the course of committing [a predicate drug offense]…is guilty of a crime of the second degree.”

Under New Jersey law, the word “weapon” can include nearly anything capable of causing injury, including knives, brass knuckles, baseball bats, crowbars, and many other objects.

To secure a conviction under subsection (b), prosecutors must prove two things:

• The defendant possessed a weapon during the drug offense
• The defendant had an unlawful purpose, such as intending to use the object for intimidation, protection, or violence during drug distribution

Because subsection (b) requires proof of intent, it is slightly more demanding for the State than subsection (c). However, it is still far easier for prosecutors to prove than many traditional weapons-for-unlawful-purpose charges.

Subsection 2C:39-4.1(c): Possession of Other Weapons (Inappropriate Circumstances)

Subsection (c) functions as the statute’s catch-all and significantly lowers the burden for the State. It provides:

“Any person who has in his possession any weapon, except a firearm, under circumstances not manifestly appropriate for such lawful uses as the weapon may have…while in the course of committing [a predicate drug offense]…is guilty of a crime of the second degree.”

Unlike subsection (b), the prosecution does not need to prove unlawful intent. Instead, they only need to show that the circumstances made the possession suspicious or inappropriate.

Example:

• Keeping a machete in a garage for yard work is lawful.
• Being found in possession of a machete under a vehicle’s driver’s seat next to a scale and drug packaging materials is almost certainly considered “not manifestly appropriate,” which is all the State needs under subsection (c).

Because this subsection focuses entirely on circumstances rather than intent, it gives prosecutors wide discretion and makes these charges extremely difficult to fight without experienced legal representation.

The “Predicate” Drug Crimes That Trigger the Charge

A charge under N.J.S.A. 2C:39-4.1 cannot exist by itself. It is what many defense attorneys refer to as a parasitic offense, meaning it must attach to an underlying, or “predicate,” drug crime. This is one of the most important aspects of the statute. The law does not apply to simple drug possession for personal use. Instead, it was crafted by the legislature to target individuals involved in the commercial side of drug activity: trafficking, distribution, manufacturing, or using others to distribute.

Investigations often originate in large transit-oriented areas such as Journal Square Station or within the Meadowlands industrial district, where officers may observe exchanges they believe are indicative of distribution rather than personal use. Activity in multi-building warehouse complexes, large storage facilities, or mixed-use commercial properties frequently becomes the basis for the predicate trafficking charges that elevate a case into 2C:39-4.1 territory.

Because of this requirement, challenging the predicate offense is often a critical defense strategy. If the defense can show that the drugs were solely for personal use (for example, under N.J.S.A. 2C:35-10, which is notably not on the list), the 2C:39-4.1 charge collapses. Without a qualifying predicate drug crime, the weapons charge cannot legally be sustained, and its mandatory prison exposure disappears.

The following crimes are the only ones that can trigger a second-degree charge under N.J.S.A. 2C:39-4.1:

• N.J.S.A. 2C:35-3 – Leader of a Narcotics Trafficking Network: This is the so-called “kingpin” statute. It applies to individuals who organize, supervise, or finance drug trafficking operations.
• N.J.S.A. 2C:35-4 – Maintaining or Operating a CDS Production Facility: This includes running or assisting in places commonly known as “grow houses,” methamphetamine labs, pill presses, or any facility used to manufacture controlled dangerous substances.
• N.J.S.A. 2C:35-5 – Manufacturing, Distributing, or Dispensing CDS: By far the most common predicate offense. It applies to dealing drugs, possessing drugs with intent to distribute, or otherwise participating in the sale or movement of controlled substances.
• N.J.S.A. 2C:35-5.2 and 2C:35-5.3 – GHB and Flunitrazepam Distribution: These statutes impose enhanced penalties for manufacturing, distributing, or possessing with intent to distribute gamma-hydroxybutyrate (GHB) and flunitrazepam (Rohypnol).
• N.J.S.A. 2C:35-6 – Employing a Juvenile in a Drug Distribution Scheme: This offense applies when an adult uses a person under 18 to manufacture, transport, or distribute drugs.
• N.J.S.A. 2C:35-7 – Distribution in or Near a School Zone: This prohibits possessing or distributing controlled substances within 1,000 feet of school property, regardless of whether school is in session.
• N.J.S.A. 2C:35-7.1 – Distribution Near Public Property: This applies to distribution or possession with intent to distribute within 500 feet of public housing, public parks, or public buildings.
• N.J.S.A. 2C:35-11 – Possession or Distribution of Imitation CDS; This includes selling or possessing items represented as controlled substances, even if the substance itself is fake or non-controlled.

Statute & Description	Offense Category	Brief Explanation
N.J.S.A. 2C:35-3 – Leader of a Narcotics Trafficking Network: This is the so-called “kingpin” statute. It applies to individuals who organize, supervise, or finance drug trafficking operations.	Drug trafficking leadership	Organizing, financing, or supervising a narcotics network
N.J.S.A. 2C:35-4 – Maintaining or Operating a CDS Production Facility: This includes running or assisting in places commonly known as “grow houses,” methamphetamine labs, pill presses, or any facility used to manufacture controlled dangerous substances.	CDS production facility operation	Running or assisting in operating a drug manufacturing location
N.J.S.A. 2C:35-5 – Manufacturing, Distributing, or Dispensing CDS: By far the most common predicate offense. It applies to dealing drugs, possessing drugs with intent to distribute, or otherwise participating in the sale or movement of controlled substances.	CDS distribution or manufacturing	Selling, distributing, producing, or possessing CDS with intent to distribute
N.J.S.A. 2C:35-5.2 and 2C:35-5.3 – GHB and Flunitrazepam Distribution: These statutes impose enhanced penalties for manufacturing, distributing, or possessing with intent to distribute gamma-hydroxybutyrate (GHB) and flunitrazepam (Rohypnol).	GHB or flunitrazepam distribution	Offenses involving GHB or flunitrazepam
N.J.S.A. 2C:35-6 – Employing a Juvenile in a Drug Distribution Scheme: This offense applies when an adult uses a person under 18 to manufacture, transport, or distribute drugs.	Using a juvenile in drug crimes	Involving a minor in drug production or distribution
N.J.S.A. 2C:35-7 – Distribution in or Near a School Zone: This prohibits possessing or distributing controlled substances within 1,000 feet of school property, regardless of whether school is in session.	School-zone distribution	Drug distribution or possession with intent within 1,000 feet of a school
N.J.S.A. 2C:35-7.1 – Distribution Near Public Property: This applies to distribution or possession with intent to distribute within 500 feet of public housing, public parks, or public buildings.	Public-property distribution	Drug distribution within 500 feet of public housing, parks, or buildings
N.J.S.A. 2C:35-11 – Possession or Distribution of Imitation CDS: This includes selling or possessing items represented as controlled substances, even if the substance itself is fake or non-controlled.	Imitation CDS	Selling or possessing substances represented as CDS

The Three Elements the State Must Prove

To convict someone under the most frequently charged subsection, N.J.S.A. 2C:39-4.1(a), the State must prove three specific elements beyond a reasonable doubt. These elements come directly from the New Jersey Model Jury Charge, which is the official set of instructions read to jurors during trial. They are not abstract legal concepts.

Element 1: There Was a Firearm

The first requirement is straightforward. The State must show that the object in question meets New Jersey’s legal definition of a firearm. Under the Model Jury Charge, a firearm is:

• Any device capable of firing a solid projectile, such as a bullet or pellet
• Through the use of an explosive
• Including handguns, rifles, shotguns, and certain BB guns or air pistols

The definition is broader than many people expect. Even devices commonly thought of as toys can qualify if they can fire a projectile with sufficient force.

Element 2: The Defendant Possessed the Firearm

Possession is usually the most complicated and heavily contested part of a 2C:39-4.1 case. New Jersey law does not limit possession to items physically held or carried. Instead, the Model Jury Charge defines possession as “knowing, intentional control” of the item. Control cannot be accidental, momentary, or uncertain.

The State must prove the defendant:

• Knew the object was a firearm, and
• Knew they had control over it

New Jersey recognizes two types of possession.

Actual Possession

This occurs when the firearm is found directly on the defendant’s person, such as in a pocket, waistband, or bag they are carrying.

Constructive Possession

This is where most cases are fought. Constructive possession occurs when a person does not physically hold the firearm but:

• Is aware of its presence, and
• Has the ability and intention to exercise control over it

Examples include a gun found:

• In a car’s glove compartment
• In a nightstand drawer
• In a kitchen cabinet

When multiple people are present in a car or home, this element becomes especially difficult for prosecutors. They must prove which specific person had knowing, intentional control of the weapon. It is not enough to show that “someone” might have had access to it.

Element 3: The Defendant Was “In the Course of” a Predicate Drug Crime

The third element is the required nexus that connects the weapon to the predicate drug offense. The State must prove that when the defendant possessed the firearm, they were committing, attempting to commit, or conspiring to commit one of the drug crimes that qualify under the statute.

This requires proving a connection in both time and place between the firearm and the drug activity. The New Jersey Supreme Court has held that the State must show that the firearm was available to further, protect, or facilitate the drug operation.

If the prosecution cannot establish this link, the 2C:39-4.1 charge fails. This remains true even if both a gun and drugs were present.

New Jersey Gun Crime Lawyer Adam M. Lustberg

The Spivey Doctrine: A Deep Dive into Constructive Possession

Many defendants are arrested in situations where the gun and drugs are not found on their person. This leads to a common and urgent question: How can someone be charged with possessing a gun that was inside an apartment when they were arrested outside on the street? 

The answer comes from the New Jersey Supreme Court’s decision in State v. Spivey (2004). This case created the legal doctrine that allows the State to convict a defendant under 2C:39-4.1 based on constructive possession rather than actual possession.

In Spivey, the defendant was detained outside his apartment building. Police then searched his apartment and found drugs along with a loaded handgun. Spivey argued that he could not be guilty of possessing the firearm during a drug offense because he was not physically near the weapon at the time of his arrest.

The New Jersey Supreme Court rejected this argument and upheld the conviction. By doing so, the Court established what is now known as the Spivey Doctrine. It contains three major principles that guide how constructive possession works in firearm and drug cases.

• Temporal and Spatial Link: The State does not need to prove that the defendant was physically close to the firearm. Instead, the prosecution must show a temporal and spatial link between the firearm and the drug activity. This means the possession of the gun and the drug offense must occur within a connected timeframe and location.
• Accessible for Use: The evidence must allow a jury to reasonably conclude that the firearm was accessible for use in the drug operation. The defendant does not need to be holding the gun or standing next to it. It is enough if the firearm was located somewhere that made it available to protect or advance the drug enterprise.
• Common Purpose: The Court explained that the closer the firearm is to the drugs, the stronger the inference that they served a common purpose. The drugs suggest the firearm was present to protect the drug activity. The firearm suggests the drugs were intended for distribution rather than personal use.

The Practical Impact of the Spivey Doctrine

The impact of Spivey is significant. It allows prosecutors to consider the entire property as part of the crime scene, not just the defendant’s immediate location. This can include an apartment, a house, a vehicle, or multiple rooms within a residence.

Under the Spivey Doctrine, prosecutors may argue that the gun and drugs were connected by considering factors such as:

• The proximity between the firearm and the drugs
• The layout of the residence or vehicle
• The presence of packaging materials, scales, or cash
• The location of ammunition
• The defendant’s access to keys, containers, or storage areas

All of these may be used to argue that the firearm and drugs were part of a single drug distribution operation.

Strategic Defenses to an N.J.S.A. 2C:39-4.1 Charge

A defendant facing a charge under N.J.S.A. 2C:39-4.1 is fighting a complex, multi-layered battle. The prosecution must prove the firearm, the possession, and the predicate drug offense. A strong defense attacks weaknesses in each of these areas. The most effective strategies involve suppressing evidence, challenging the predicate drug crime, undermining the theory of possession, or negotiating for relief from mandatory sentencing.

Challenge the Search (Motion to Suppress)

Because a 2C:39-4.1 prosecution depends entirely on the physical evidence of the gun and the drugs, the legality of the search is often the most important issue in the case. If police conducted an unlawful car stop, executed a defective search warrant, searched without probable cause, or violated any Fourth Amendment requirement, the defense can file a Motion to Suppress. When the court suppresses the evidence, the gun and drugs cannot be used at trial. Without them, the State has almost no case left, and the charges are usually dismissed. A successful suppression motion is often the quickest and most decisive path to victory.

Challenge the Predicate Offense

The 2C:39-4.1 charge cannot stand by itself. It must attach to a qualifying trafficking offense. A defense attorney can argue that the drugs were for personal use rather than for distribution. This may involve demonstrating that the quantity was too small to support intent to distribute, that packaging materials had an innocent explanation, or that expert testimony supports a personal use theory. If the predicate trafficking offense fails, the 2C:39-4.1 charge must be dismissed because the statute does not apply to simple possession.

Challenge Possession (The Spivey Defense)

This defense targets the State’s reliance on constructive possession. Under the Spivey Doctrine, prosecutors must prove a temporal and spatial link between the drugs and the firearm, as well as show that the weapon was accessible for use in connection with the drug activity. A strong defense shows that the gun was not accessible, that it had no connection to drug distribution, or that it was stored in a way that prevented immediate use. If the firearm cannot be tied to the drug operation under the Spivey framework, constructive possession collapses.

Challenge Knowing Possession

In cases where several people share a home or vehicle, the State must prove which person knowingly possessed the firearm and the drugs. A defense attorney may argue that the defendant did not know the gun existed, that another person had exclusive access to the area where the weapon was located, or that the State cannot show intentional control. If the prosecution cannot establish knowing possession beyond a reasonable doubt, the charge cannot be sustained.

Negotiate for a Graves Act Waiver

For eligible first-time offenders, a Graves Act waiver may significantly reduce or eliminate mandatory prison time. A defense attorney typically builds a strong trial strategy by challenging the search, the predicate offense, and the State’s theory of possession. These weaknesses are then used as leverage to convince the prosecutor that a waiver is in the interests of justice. If granted, a waiver can allow for a probationary sentence, reduced incarceration, or other forms of leniency that would otherwise be unavailable under the Graves Act.

Get Experienced Legal Help Today

A charge under N.J.S.A. 2C:39-4.1 is one of the most serious weapon and drug-related offenses in New Jersey. These cases move quickly, involve aggressive prosecution, and carry mandatory state prison exposure. Defendants are typically required to appear at the Bergen County Superior Court, where prosecutors often highlight the proximity of the alleged conduct to sensitive civic infrastructure, such as public-access transit buildings or the Court Plaza complex. 

In Hackensack, allegations frequently involve activity within multi-unit residential towers or commercial properties, where the State may argue that drug distribution networks use the dense environment to operate discreetly while maintaining access to weapons.

If you or someone you care about is facing allegations of possessing a weapon during a drug offense, do not wait to seek help. Skilled legal representation can uncover weaknesses in the State’s case and fight for the best possible outcome. For dedicated and knowledgeable support, contact Lustberg Law Offices, LLC at (201) 880-5311 and speak with an attorney who can protect your rights from the very beginning.