(N.J.S.A. 2C:13-1b(4))
The defendant is charged with the crime of kidnapping. The indictment reads in pertinent
part as follows:
(Read Indictment)
The pertinent part of the statute on which this indictment is based reads as follows:
A person is guilty of kidnapping if he unlawfully removes another
from his place of residence or business, or a substantial distance
from the vicinity where he is found, or if he unlawfully confines
another for a substantial period, with [the purpose to] permanently
deprive a parent, guardian, or other lawful custodian of custody of
the victim.
In order for you to find the defendant guilty of kidnapping, the State is required to prove
each of the following two elements to you beyond a reasonable doubt:
1. That the defendant (select as appropriate):
a. unlawfully removed __________, from (his/her) place of residence... or
b. unlawfully removed __________, from (his/her) place of business... or
c. unlawfully removed __________, a substantial distance from the vicinity
where (he/she) was found... or
d. unlawfully confined __________, for a substantial period;
(and) 2. That the removal (or confinement) was with the purpose to permanently deprive
a parent, guardian, or other lawful custodian of custody of the victim.
In relation to the first element you will note that I have used the term(s) "unlawfully
removed" and/or "unlawfully confined".
(IF THE PERSON ALLEGED TO HAVE BEEN REMOVED OR CONFINED IS 14
YEARS OF AGE OR OLDER, AND NOT INCOMPETENT USE THE FOLLOWING)
A removal (or confinement) is "unlawful" if it is accomplished by force, threat or
deception.1
(IF THE PERSON REMOVED OR CONFINED IS UNDER THE AGE OF 14
OR INCOMPETENT, USE THE FOLLOWING)
In the case of a person who is under the age of 14 or who is incompetent, a removal ( or
confinement) is "unlawful" if it is accomplished without the consent of a parent, guardian, or
1 N.J.S.A. 2C:13-1d
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other person responsible for the general supervision of (his/her) welfare.2
(CHARGE WHEN ELEMENT 1 c. OR d. IS ALLEGED)
When the removal of a victim is from a place other than the victim's residence or place of
business, the removal must be to another place which is a "substantial distance" from the vicinity
from which the victim was removed. However, for this purpose a "substantial distance" is not
measured in feet, yards, or miles, nor by any other standard of linear measurement. Rather, a
"substantial distance" is one that is significant, in that it is more than incidental to the underlying
crime and substantially increases the risk of harm to the victim. That increased risk of harm
must not be trivial. If the victim is removed only a slight distance from the vicinity from which
he or she was removed and such movement does not create the isolation and increased risk of
harm that are at the heart of the kidnapping statute, then you should not convict the defendant of
the kidnapping charge.3
Unlawful confinement must be for a "substantial period". However, for this purpose a
"substantial period" is not measured in seconds, minutes or hours, nor by any other standard
based strictly on the passage of time. Rather, a "substantial period" is one that is significant, in
that it is more than incidental to the underlying crime and substantially increases the risk of harm
to the victim. That increased risk of harm must not be trivial. If the victim is confined for only a
slight period of time and such confinement does not create the isolation and increased risk of
harm that are at the heart of the kidnapping statute, then you should not convict the defendant of
the kidnapping charge.4
Therefore, in determining whether the removal (and/or confinement) was substantial, you
may consider5
(1) the distance of the removal (and/or the duration of confinement);
(2) whether the removal (and/or confinement) occurred during the commission of a
separate offense;
2 Id.
3 State v. Masino, 94 N.J. 436, 447 (1983).
4 State v. Smith, 210 N.J. Super. 43, 60-61 (App. Div. 1986), certif. den., 105 N.J. 582 (1986). State v. Deutsch, 229 N.J.
Super. 374, 383, 387 (App. Div. 1988). Cf. State v. Bryant, 217 N.J. Super. 72, 80-82 (App. Div. 1987) certif. den. 108
N.J. 202 (1987); State v. LaFrance, 117 N.J. 583, 594 (1990).
5 In State v. LaFrance, 117 N.J. 583 (1990) the court suggested that "future trials should reflect that we have emphasized
that the charge to the jury convey the elements of the crime in the factual context of the case. Court and counsel should
frame a charge to the jury in which defendant's conduct is measured in terms of whether the detention was merely
incidental to the underlying crimes". State v. LaFrance at 594. The enumerated factors should only be charged if
relevant, and the trial judge may charge other factors where appropriate.
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(3) whether the removal (and/or confinement) which occurred is inherent in the separate
offense; and
(4) whether the removal (and/or confinement) created a significant danger to the victim
independent of that posed by the separate offense.
[CHARGE IN ALL CASES]
The second element that the State is required to prove beyond a reasonable doubt is that
the removal (and/or confinement) was with the purpose to permanently deprive a parent,
guardian, or other lawful custodian of custody of the victim. A “parent” means a parent,
guardian or other lawful custodian of a minor child.6 "Permanently deprive" means unlawfully
taking (a child) (children) with the purpose of raising the child[ren] as one's own.7
A person acts purposely with respect to the nature of (his/her) conduct or a result of
(his/her) conduct if it is (his/her) conscious object to engage in conduct of that nature or to cause
such a result, that is, if the person means to do what (he/she) does or to cause such a result. A
person acts purposely with respect to attendant circumstances if the person is aware of the
existence of such circumstances, or believes or hopes that they exist. "With purpose,"
"designed," "with design," or equivalent terms have the same meaning.8
The nature of the purpose with which the defendant acted towards the victim is a question
of fact for the jury to decide. Purpose is a condition of the mind which cannot be seen, and can
only be determined by inferences drawn from the defendant's conduct, words or acts as they have
been presented in the evidence you have heard and seen in this case. It is not necessary that the
State produce a witness or witnesses to testify that the defendant stated, for example, that
(his/her) purpose in removing __________ (and/or) confining __________, was to permanently
deprive a parent, guardian, or other lawful custodian of custody of the victim. It is within the
power of the jury to find that proof of purpose 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 they have been presented in the evidence you have heard and
seen in this case.
6 N.J.S.A. 2C:13-1g.
7 State v. Froland, 378 N.J. Super. 20, 31 (App. Div. 2005), certif. granted, 187 N.J. 82 (2006). Froland also held that this statute
applies to a parent with joint custody of a child who abducts that child without the other parent's consent. Id. at 35.
8 N.J.S.A. 2C:2-2b(1).
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AFFIRMATIVE DEFENSES
[Charge when applicable; select appropriate section(s)]
- I 9 -
In this matter, the defendant has presented evidence that the taking, detaining, enticing or
concealing of the minor child[ren] was done for the following reason(s):
(1) The defendant reasonably believed that the action was necessary to preserve the
child (or children) from imminent danger to (his/her/their) welfare. However, this
defense is not available if the defendant did not, as soon as reasonably practicable
but in no event more than 24 hours after taking (detaining, enticing, or
concealing) a child (or children) under (his/her) protection, give notice of the
child’s (or children’s) location to the police department of the municipality where
the child[ren] resided, the office of the county prosecutor in the county where the
child[ren] resided, or the Division of Youth and Family Services in the
Department of Human Services; or
(2) The defendant reasonably believed that the taking or detaining of the minor
child[ren] was consented to by the other parent, or by an authorized State agency;
or
(3) The child[ren], being at the time of the taking or concealment not less than 14
years old, was/were taken away at (his/her/their) own volition and without
purpose to commit a criminal offense with or against the child[ren].
[CHARGE FOLLOWING PARAGRAPHS WHEN SUBSECTIONS 1 OR 2 ARE
ALLEGED:]
“Reasonably believes” designates a belief the holding of which does not make the actor
reckless or criminally negligent.10
A person acts recklessly when (he/she) consciously disregards a substantial and
unjustifiable risk that the material element exists or will result from (his/her) conduct. The risk
must be of such a nature and degree that, considering the nature and purpose of the actor’s
conduct and the circumstances known to (him/her), its disregard involves a gross deviation from
9
N.J.S.A. 2C:13-1e. The affirmative defenses set forth in this subsection must be proved by the defendant by clear and convincing
evidence. Please note that this subsection refers to an “actor,” and, therefore, may not be limited to a “parent” as defined by N.J.S.A.
2C: 13-1g.
10
N.J.S.A. 2C:1-14j.
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the standard of conduct that a reasonable person would observe in the actor’s situation.11
A person acts negligently when (he/she) should be aware of a substantial and
unjustifiable risk that the material element exists or will result from (his/her) conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive it, considering the nature
and purpose of (his/her) conduct and the circumstances known to (him/her), involves a gross
deviation from the standard of care that a reasonable person would observe in the actor’s
situation.12
An actor is “reckless” or “criminally negligent” when the actual result must be within the
risk of which the actor is aware or, in the case of criminal negligence, of which (he/she) should
be aware, or, if not, the actual result must involve the same kind of injury or harm as the
probable result and must not be too remote, accidental in its occurrence, or depend on another’s
volitional act to have a just bearing on the actor’s liability or on the gravity of his behavior.13
The defendant must prove this defense by clear and convincing evidence. By clear and
convincing evidence, I mean evidence which produces in your minds a firm belief as to the truth
of the precise fact being asserted. This is a lesser burden of proof than beyond a reasonable
doubt. Evidence may be uncontroverted, but yet not clear and convincing. On the other hand,
evidence may be clear and convincing even in the absence of corroboration, and even if it has
been contradicted. Although the burden rests upon the defendant to establish this affirmative
defense by proof of clear and convincing evidence, the burden of proving the defendant guilty of
the offense charged here beyond a reasonable doubt is always on the State, and that burden never
shifts.
If you are satisfied by clear and convincing evidence that the defendant has established
the affirmative defense just mentioned above, then you must find defendant not guilty.
11 N.J.S.A. 2C:2-2b(3).
12 N.J.S.A. 2C:2-2b(4).
13 N.J.S.A. 2C:2-3c.
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- II-14
It is an affirmative defense to this prosecution that the defendant, a parent having the
right of custody, reasonably believed that (he/she) was fleeing from imminent physical danger
from ______ (the other parent), provided that the defendant, as soon as reasonably practicable:
(1) Gives notice of the child’s (or children’s) location to the police department of the
municipality where the child resided, the office of the county prosecutor in the
county where the child resided, or the Division of Youth and Family Services in
the Department of Human Services; or
(2) Commences an action affecting custody in an appropriate court.
A “parent” means a parent, guardian or other lawful custodian of a minor child.15
"Imminent" means likely to happen without delay.16
“Reasonably believes” designates a belief the holding of which does not make the actor
reckless or criminally negligent.17
A person acts recklessly when (he/she) consciously disregards a substantial and
unjustifiable risk that the material element exists or will result from (his/her) conduct. The risk
must be of such a nature and degree that, considering the nature and purpose of the actor’s
conduct and the circumstances known to (him/her), its disregard involves a gross deviation from
the standard of conduct that a reasonable person would observe in the actor’s situation.18
A person acts negligently when (he/she) should be aware of a substantial and
unjustifiable risk that the material element exists or will result from (his/her) conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive it, considering the nature
and purpose of (his/her) conduct and the circumstances known to (him/her), involves a gross
deviation from the standard of care that a reasonable person would observe in the actor’s situatio
14
N.J.S.A. 2C:13-1f. This subsection, by its definition, appears to be limited to a custodial “parent” as defined by
N.J.S.A. 2C:13-1g. Unlike N.J.S.A. 2C:13-1e, this subsection does not place a burden on the defendant; rather, it
requires the State to disprove the defense alleged. This distinction is noted throughout the text and the associated
footnotes.
15 N.J.S.A. 2C: 13-1g.
16 See Model Jury Charge for Simple Assault (Physical Menace/Substantial Step) (Lesser Included) (N.J.S.A. 2C:12-
1a(3)).
17
N.J.S.A. 2C:1-14j.
18
N.J.S.A. 2C:2-2b(3).
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19
An actor is “reckless” or “criminally negligent” when the actual result must be within the
risk of which the actor is aware or, in the case of criminal negligence, of which (he/she) should
be aware, or, if not, the actual result must involve the same kind of injury or harm as the
probable result and must not be too remote, accidental in its occurrence, or depend on another’s
volitional act to have a just bearing on the actor’s liability or on the gravity of his behavior.20
If the State has failed to disprove any element of this affirmative defense beyond a
reasonable doubt21, then you must find the defendant not guilty.
[CHARGE IN ALL CASES]
If you are satisfied, beyond a reasonable doubt, that the State has proven each of the
elements of this offense, as I have defined them to you, [and you have found that the defendant
has not proven by clear and convincing evidence the existence of the affirmative defense22,] or,
[and you have found that the State has disproved an element of the affirmative defense beyond a
reasonable doubt23], then you must find the defendant guilty. If you find, however, that the State
has failed to prove any of the elements of the crime beyond a reasonable doubt [or, if you have
found by clear and convincing evidence that the defendant has proven the affirmative defense24,]
or, [if you are satisfied that the State has not disproved any element of the affirmative defense
beyond a reasonable doubt25], then you must find the defendant not guilty.
[CHARGE WHEN FIRST DEGREE KIDNAPPING ALLEGED]
If you find that the State has proven beyond a reasonable doubt that the defendant
committed the crime of kidnapping, you must go on to determine whether the State has also
proven beyond a reasonable doubt that he/she knowingly harmed _____ or knowingly did not
release ____ in a safe place prior to his/her apprehension.26 The “harm” component can include
physical, emotional, or psychological harm.27 In this case, the State alleges that defendant
19
N.J.S.A. 2C:2-2b(4).
20
N.J.S.A. 2C:2-3c.
21 State v. Galiyano, 178 N.J. Super. 393, 397 (App. Div.), certif. denied, 87 N.J. 424 (1981).
22
For an affirmative defense as set forth under N.J.S.A. 2C:13-1e.
23
For an affirmative defense as set forth under N.J.S.A. 2C:13-1f.
24
For an affirmative defense as set forth under N.J.S.A. 2C:13-1e.
25 For an affirmative defense as set forth under N.J.S.A. 2C:13-1f.
26 State v. Sherman, 367 N.J. Super. 324, 330 (App. Div. 2004), certif. denied, 180 N.J. 356 ( 2004).
27 Sherman, 367 N.J. Super. at 331.
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[describe conduct allegedly constituting harm28 or release in an unsafe place]. [INCLUDE
WHEN APPROPRIATE: On the other hand, defendant contends that ___________.]
A person acts knowingly with respect to the nature of his conduct or the attendant
circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or
he is aware of a high probability of their existence. A person acts knowingly with respect to a
result of his conduct if he is aware that it is practically certain that his conduct will cause such a
result. "Knowingly," "with knowledge," or equivalent terms have the same meaning.
Knowledge is a condition of the mind which cannot be seen and can only be determined
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, members of the
jury, that the State produce witnesses to testify that an accused said he/she had a certain state of
mind when he/she engaged 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
his/her acts and his/her conduct, and from all he/she said and did at the particular time and place,
and from all of the surrounding circumstances.
[CHARGE WHEN FIRST DEGREE KIDNAPPING IS ALLEGED]
If you find that the State has proven a reasonable doubt that the defendant is guilty of
kidnapping, but you have reasonable doubt as to whether the State has proven beyond a
reasonable doubt that he/she knowingly harmed ________ or knowingly did not release _______
in a safe place prior to (his/her) apprehension you should then find the defendant guilty of
kidnapping in the second degree.
If you find beyond a reasonable doubt that the defendant is guilty of kidnapping and that
(he/she) knowingly harmed ________ or knowingly did not release ________ in a safe place
prior to (his/her) apprehension, you should then find the defendant guilty of kidnapping in the
first degree.
28 "We conclude that the 'harm" component of the unharmed release provision contained in N.J.S.A. 2C:13-1c[1] focuses on the conduct
of the kidnapper during the purposeful removal and holding or confining of the victim, as distinguished from the type of harm inherent
in every kidnapping." Sherman, 367 N.J. Super. at 330. The "harm" component can include "physical, emotional or psychological
harm." Id. at 331.
