(N.J.S.A. 2C:33-28)
The indictment, which charges (defendant) with soliciting or recruiting another person to join or actively participate in a street gang, reads:
(Read Indictment)
The statute on which this charge is based reads:
An actor who solicits or recruits another to join or actively participate in a criminal street gang with the knowledge or purpose that the person who is solicited or recruited will promote, further, assist, plan, aid, agree, or attempt to aid in the commission of criminal conduct by a member of a criminal street gang, commits a crime ... .
To convict (defendant) of this crime, the state must prove beyond a reasonable doubt each of these elements:
1. That (defendant) solicited or recruited another person to join or actively participate in a criminal street gang.
2. That he/she did so with the knowledge or purpose that the other person will participate, or attempt to participate, in criminal conduct committed by a member of that gang.
The first element that the State must prove beyond a reasonable doubt is that (defendant) solicited or recruited another person to join or actively participate in a criminal street gang.1 A criminal street gang means three or more persons associated in fact. Persons are associated in fact if they have in common a group name or identifying sign, symbol, tattoo or other physical marking, style of dress or use of hand signs or other indicia of association or common leadership, and, individually or in combination with other members of a criminal street gang, while engaging in gang related activity, have committed, conspired or attempted to commit, within the preceding three years, two or more criminal acts [specify the nature of the acts].2
1 The definitions in this paragraph are found in N.J.S.A. 2C:44-3(h).
2 See N.J.S.A. 2C:44-3 (h). The specific crimes delineated in the statute are robbery, carjacking, aggravated assault, assault, aggravated sexual assault, sexual assault, arson, burglary, kidnapping, extortion, or certain weapons and drug laws.
SOLICITATION, RECRUITMENT TO JOIN
CRIMINAL STREET GANG
N.J.S.A. 2C:33-28
Page 2 of 4
The second element that the State must prove beyond a reasonable doubt is that he/she solicited or recruited another to join or actively participate in a criminal street gang with the knowledge or purpose that that other person will participate, or attempt to do so, in criminal conduct committed by a member of that gang.
A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts knowingly with respect to the attendant circumstances of (his/her) conduct if (he/she) is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing" or "with knowledge" or equivalent terms have the same meaning.
Purposely and knowingly refer to conditions of the mind. They cannot be seen. Often, they 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/she) acted purposely or knowingly when (he/she) engaged in the conduct with which (he/she) is charged. You may find that proof of purpose or knowledge 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 in question as you have heard from the evidence.
One has the requisite knowledge or purpose if (he/she) knows that the person being solicited or recruited will engage in some form, although not necessarily which form, of criminal activity.3
A person attempts to perform an act if (he/she) does or omits to do anything with the purpose of performing that act without further conduct on (his/her) part, or purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step planned to culminate in the performance of that act. The step taken must strongly show (defendant’s) criminal purpose. It must be substantial and not just a very remote preparatory act and must show that the accused has a firmness of criminal purpose.
3 N.J.S.A. 2C:33-28(h).
SOLICITATION, RECRUITMENT TO JOIN
CRIMINAL STREET GANG
N.J.S.A. 2C:33-28
Page 3 of 4
So, for (defendant) to be guilty of a criminal attempt, the State must prove beyond a reasonable doubt that he acted purposely and that he engaged in conduct which would constitute a substantial step in soliciting or recruiting another to join or actively participate in a criminal street gang.
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.
As I noted, to prove an attempt, the State must prove beyond a reasonable doubt that (defendant) purposely did or omitted to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission that is a substantial step in the course of conduct planned to culminate in his commission of the crime.
If the State has failed to prove each of these elements beyond a reasonable doubt you must find (defendant) not guilty of this crime.
[CHARGE FOLLOWING SENTENCE ONLY IF DEFENDANT IS NOT ACCUSED OF INJURING VICTIM OR THREATENING BODILY INJURY]
On the other hand, if the State has proven all of these elements beyond a reasonable doubt, you must find (defendant) guilty of this crime.
[CHARGE FOLLOWING PARAGRAPH IF DEFENDANT IS ACCUSED OF THREATENING BODILY INJURY]
If the State has proven each of the above elements beyond a reasonable doubt, you must consider an additional element. The State must prove beyond a reasonable doubt that (defendant) threatened another person with bodily injury on two or more separate occasions within a thirty day period, in the course of soliciting or recruiting another person to join the criminal street gang. Bodily injury means physical pain, illness, or any impairment of physical condition.
SOLICITATION, RECRUITMENT TO JOIN
CRIMINAL STREET GANG
N.J.S.A. 2C:33-28
Page 4 of 4
[CHARGE FOLLOWING PARAGRAPH IF DEFENDANT IS ACCUSED OF INFLICTING SIGNIFICANT BODILY INJURY UPON ANOTHER]
If the State has proved each of the above elements (that is, that [defendant] solicited or recruited another to join or actively participate in a criminal street gang, with the knowledge or purpose that the other person will participate, or attempt to do so, in criminal conduct committed by a member of that gang) beyond a reasonable doubt, you must consider an additional element. The State must prove beyond a reasonable doubt that (defendant), in the course of such solicitation or recruitment, inflicted significant bodily injury upon another person. “Significant bodily injury” means bodily injury which creates a temporary loss of the functions of any bodily member or organ or temporarily loss of any one of the five senses.
If the State has proved beyond a reasonable doubt all elements of the offense charged, you must find (defendant) guilty of soliciting or recruiting to join a criminal street gang [CHOOSE APPLICABLE ALTERNATIVE] while threatening another with bodily injury on two or more occasions within a 30-day period OR while inflicting significant bodily injury upon another. On the other hand, if the State has failed to prove the additional element beyond a reasonable doubt, but has proved the first two elements beyond a reasonable doubt, you must find (defendant) guilty of soliciting or recruiting to join a criminal street gang without [CHOOSE APPLICABLE ALTERNATIVE] threatening another with bodily injury on two or more occasions within a 30-day period OR inflicting significant bodily injury upon another. Finally, if you find that the State has failed to prove each of the first two elements beyond a reasonable doubt, you must find (defendant) not guilty.
