Kenneth Vercammen, Esq. 732-572-0500 Edison, NJ

Monday, August 13, 2007

ENDANGERING THE WELFARE OF A CHILD

Third Degree
(N.J.S.A. 2C:24-4a)
Defendant is charged with endangering the welfare of a child,
(Read Pertinent Count(s) of the Indictment)
The statute upon which this charge is based reads, in pertinent part:
Any person who . . . engage[s] in sexual conduct which would impair or debauch the morals of a child . . . or who causes the child harm that would make the child an abused or neglected child . . . is guilty of a crime.
To find defendant guilty of this crime, the State must prove beyond a reasonable doubt the following elements:
1. That (name of victim) was a child.
2. That defendant knowingly engaged in sexual conduct with (name of victim)
OR
2. That defendant knowingly caused the (name of victim) harm that would make the child abused or neglected;
3. That defendant knew that such conduct would impair or debauch the morals of (name of victim)
OR
That defendant knew that such conduct would cause the (name of victim) harm that would make the (name of victim) abused or neglected.
The first element that the State must prove beyond a reasonable doubt is that (name of victim) was a child. A "child" means any person under the age of sixteen (16) years at the time of
ENDANGERING THE WELFARE
OF A CHILD (Third Degree)
N.J.S.A. 2C:24-4a
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the offense. The State must prove only the age of (name of victim) at the time of the offense beyond a reasonable doubt. It does not have to prove that defendant knew or reasonably should have known that (name of victim) was under the age of sixteen (16).1
The second element that the State must prove beyond a reasonable doubt is that defendant knowingly engaged in sexual conduct. Here, the State alleges that the sexual conduct committed by defendant consisted of [summarize relevant allegations].2 [IF APPLICABLE: [summarize defense claims]].
OR
The second element that the State must prove beyond a reasonable doubt is that defendant knowingly caused (name of victim) harm that would make the child abused or neglected.3
A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if (he/she) is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect
1 See State v. Perez, 177 N.J. 540, 555 (2003).
2 If the sexual conduct has been charged in the indictment, remind the jury of the specific conduct to which the indictment refers. If the sexual conduct is not alleged in the indictment, instruct the jury on the elements of the specific sexual offense which the State alleges has been committed. See “sexual conduct” as defined in N.J.S.A. 2C:24-4b, 2C:14-1 and in State v. D.R., 109 N.J. 348 (1988); State v. Miller, 108 N.J. 112 (1987); State v. Hess, 198 N.J. Super. 322 (App. Div. 1984); State v. Davis, 229 N.J. Super. 66 (App. Div. 1988).
3 Charge the appropriate definition of abused or neglected child as provided in N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.21. In this regard, see State v. N.I., 349 N.J. Super. 299 (App. Div. 2002), which holds that the term “willfully forsaken” as used in N.J.S.A. 9:6-1 requires an intent to abandon a child permanently, a permanent giving up or relinquishment of the child. N.I. interprets “willfully” to mean “intentionally or purposely as distinguished from inadvertently or accidentally.” Id. at 313-14, quoting State v. Burden, 126 N.J. Super. 424, 427 (1974). Finally, N.I. holds that the relevant mental state is “knowing.” Note that certain sections of Title 9 apply only to those with custody of a child and are not applicable to third degree offenders.
ENDANGERING THE WELFARE
OF A CHILD (Third Degree)
N.J.S.A. 2C:24-4a
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to a result of the conduct if (he/she) is aware that it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.
Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inference from defendant’s 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 that (he/she) had a certain state of mind when (he/she) did a particular thing. 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 (his/her) acts and conduct and from all (he/she) said and did at the particular time and place and from all surrounding circumstances established by the evidence.
The third element that the State must prove beyond a reasonable doubt is that defendant engaged in the sexual conduct knowing that it would impair or debauch the morals of the child. Sexual conduct which would impair or debauch the morals of the child is conduct which tends to corrupt, mar, or spoil the morals of a child under sixteen (16) years of age. The State does not have to show that the sexual conduct actually impaired or debauched the morals of (name of victim). In analyzing the proofs to determine whether the evidence demonstrates that defendant’s conduct would tend to impair or debauch the morals of the child, evaluate the proofs in the context of objectively reasonable contemporary standards.4 I have previously defined the concept of “knowing” for you.
OR
4 State v. Hackett, 166 N.J. 66, 86 (2001).
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OF A CHILD (Third Degree)
N.J.S.A. 2C:24-4a
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The third element that the State must prove beyond a reasonable doubt is that defendant knew that (his/her) conduct would cause the child harm that would make the child abused or neglected. I have previously defined the concept of “knowing” for you.
If the State has proven each element of the offense beyond a reasonable doubt, then you must find defendant guilty of endangering the welfare of the child. If the State has failed to prove any element of the offense beyond a reasonable doubt, then you must find defendant not guilty of endangering the welfare of a child.