Monday, July 16, 2007

AGGRAVATED ASSAULT (THROWING BODILY FLUID AT A CORRECTIONS EMPLOYEE)

(N.J.S.A. 2C:12-13
Count of this indictment charges the defendant with aggravated assault.
(Read appropriate count of indictment).
The applicable statute provides, in pertinent part, that:
[a] person who throws a bodily fluid at a Department of Corrections employee, [or county corrections officer, juvenile corrections officer, juvenile detention staff member, any sheriff, undersheriff or sheriff’s officer or any municipal, county or State law enforcement officer] while in the performance of his duties or otherwise purposely subjects such employee to contact with a bodily fluid commits an aggravated assault.
In order for you to find the defendant guilty of this offense, the State must prove each of the following elements beyond a reasonable doubt:
1. that the defendant purposely1 threw a bodily fluid at (insert name of victim) or otherwise purposely subjected (insert name of victim) to contact with a bodily fluid;
1 There is a question of statutory construction as to the applicable culpability element under N.J.S.A. 2C:12-13 for one who “throws” a bodily fluid. The absence of an explicitly stated culpability requirement in the first portion of the statute could support an argument that knowledge applies under N.J.S.A. 2C:2-2c(3), but a majority of the Model Criminal Jury Charge Committee has concluded that the subsequent statutory reference to purpose requires that purpose be applied to all material elements of the offense under N.J.S.A. 2C:2-2c(1).
2. that (insert name of victim) was a Department of Corrections employee [or county corrections officer, juvenile corrections officer, juvenile detention staff member, any sheriff, undersheriff or sheriff’s officer or any municipal, county or State law enforcement officer];
3. that (insert name of victim) was at the time engaged in the performance of (his/her) duties; and
AGGRAVATED ASSAULT
(THROWING BODILY FLUID AT A
CORRECTIONS EMPLOYEE)
N.J.S.A. 2C:12-13
PAGE 2 of 4
4. that the defendant knew that (insert name of victim) was a Department of Corrections employee [or county corrections officer, juvenile corrections officer, juvenile detention staff member, any sheriff, undersheriff or sheriff’s officer or any municipal, county or State law enforcement officer] and that the defendant knew that (insert name of victim) was at the time engaged in the performance of (his/her) duties.1
The first element that the State must prove beyond a reasonable doubt is that the defendant purposely threw a bodily fluid at (insert name of victim), or otherwise purposely subjected (insert name of victim) to contact with a bodily fluid. “Bodily fluid” means saliva, blood, urine, feces, seminal fluid or any other bodily fluid..2
A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is a person's 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 a person is aware of the existence of such circumstances or a person believes or hopes that they exist. One can be deemed to be acting purposely if one acts with design, with a purpose, with a particular object, if one really means to do what (he/she) does.3
The second element that the State must prove beyond a reasonable doubt is that (insert name of victim) was a Department of Corrections employee [or county corrections officer, juvenile corrections officer, juvenile detention staff member, any sheriff, undersheriff or sheriff’s officer or any municipal, county or State law enforcement officer].
The third element that the State must prove beyond a reasonable doubt is that (insert name of victim) was engaged in the performance of the duties of (his/her) office at the time.
1 State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999), aff’d. o.b. 163 N.J. 140 (2000) (the defendant must know that the victim is a law enforcement officer). If transferred intent is an issue, the charge should be modified accordingly. State in the Interest of S.B., 333 N.J. Super. 236, 243 (App. Div. 2000).
2 N.J.S.A. 2C:12-12.
3 N.J.S.A. 2C:2-2b(1).
AGGRAVATED ASSAULT
(THROWING BODILY FLUID AT A
CORRECTIONS EMPLOYEE)
N.J.S.A. 2C:12-13
PAGE 3 of 4
[CHARGE WHERE APPROPRIATE]
“Department of Corrections employee” means any Corrections officer, parole officer, or other employee of the New Jersey Department of Corrections and any person under contract to provide services to the department.4
[CHARGE IN ALL CASES]
The fourth element that the State must prove beyond a reasonable doubt is that the defendant knew that (insert name of victim) was a Department of Corrections employee [or county corrections officer, juvenile corrections officer, juvenile detention staff member, any sheriff, undersheriff or sheriff’s officer or any municipal, county or State law enforcement officer] and that the defendant knew that such individual was engaged in the performance of the duties of (his/her) office at the time.
A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if a person is aware that (his/her) conduct is of that nature, or that such circumstances exist or a person is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if a person is aware that it is practically certain that (his/her) conduct will cause such a result. One is said to act knowingly if one acts with knowledge, if one acts consciously, if (he/she) comprehends (his/her) acts.5
Purpose and knowledge are conditions of the mind that cannot be seen and that can often be determined only from inferences from conduct, words or acts. It is not necessary for the State to produce a witness to testify that the defendant stated that (he/she) acted with a particular state of mind. It is within your power to find that proof of purpose or knowledge has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.
If you find that the State has proven every element beyond a reasonable doubt, then you must find the defendant guilty. If, however, the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.
4 N.J.S.A. 2C:12-12.
5 N.J.S.A. 2C:2-2b(2)
AGGRAVATED ASSAULT
(THROWING BODILY FLUID AT A
CORRECTIONS EMPLOYEE)
N.J.S.A. 2C:12-13
PAGE 4 of 4
[CHARGE WHERE APPROPRIATE]
If, and only if, you find the defendant guilty of the crime charged beyond a reasonable doubt, you must proceed to determine whether the State has proven one additional element beyond a reasonable doubt, and that is whether (insert name of victim) suffered bodily injury as a consequence of the defendant’s conduct.6
“Bodily injury” is defined as physical pain, illness, or any impairment of physical condition.7 Record your finding as to this additional element in the place provided on your verdict sheet.
6 Where causation is an issue, charge appropriately under N.J.S.A. 2C:2-3.
7 N.J.S.A. 2C:11-1a.

DISARMING A LAW ENFORCEMENT OFFICER

N.J.S.A. 2C:12-11a. & b.
[This charge is to be used where the allegation is that the defendant attempted to exercise unlawful control over the firearm or other weapon]
The defendant is charged by County _________ of the indictment with committing the crime of disarming a law enforcement officer. The indictment is based on a New Jersey statute, the pertinent parts of which read as follows:
A person is guilty of a crime if (he/she) knowingly takes unlawful control over a firearm [or other weapon] in the possession of a law enforcement n[or corrections officer], when that officer is acting in the performance of (his/her) duties, and either is in uniform or exhibits evidence of (his/her) authority.
In order for you to find the defendant guilty of the crime of disarming a law enforcement officer, the State is required to prove each of the following elements beyond a reasonable doubt:
[Insert appropriate word or words]
(1) There was a firearm [or other weapon] in the possession of a law enforcement officer [or corrections officer].
(2) The defendant, knowingly took unlawful control over that firearm [or other weapon].
(3) The officer was acting in the performance of (his/her) duties, and was either in uniform or exhibited evidence of (his/her) authority.
The first element that the State must prove beyond a reasonable doubt was that there was a firearm [or other weapon] in the possession of a law enforcement officer1 [or corrections officer2.
The word “possess” as used in criminal statutes signified a knowing, intentional control over a designated thing, accompanies by a knowledge of its character. The possession of the firearm [or other weapon] by the law enforcement officer [or corrections officer] may be either actual possession or constructive possession.
A law enforcement officer [or corrections officer] is in actual possession of a firearm [or other weapon] when (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.
1For definition of “Law Enforcement Officer” see N.J.S.A. 2C:25-19c
2For definition of “Corrections Officer” see N.J.S.A. 2A:154-4
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 2 of 6
A law enforcement officer [or corrections officer] is in constructive possession of a firearm [or other weapon] even though (he/she) does not have the firearm [or other weapon] on (his/her) person at a given time, if (he/she) is aware of the presence of the firearm [or other weapon] and is able to exercise intention control or dominion over it.
A law enforcement office [or corrections officer], although not in actual possession, who has knowledge of the firearm [or the weapon], and the intention at a given time to exercise control over that firearm [or other weapon], either directly or through another person or persons, is then in constructive possession of the firearm [or other weapon].
A “firearm”3 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. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eights of an inch in diameter, with sufficient force to injure a person.
[Charge is applicable]
A “weapon”4 means anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded, in wood; and (4) stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury though being vaporized or otherwise dispensed in the air.
The second element that the State must prove beyond a reasonable doubt is that the
3N.J.S.A. 2C:39-1f.
4N.J.S.A. 2C:39-1r.
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 3 of 6
defendant purposely5 attempted to exercise unlawful control over that firearm [or the weapon].
A person exercises unlawful control over an item when (he/she) does anything to either take possession of that item, or remove from the possession of the person who has possession of it, without permission or authority.
In order to prove the defendant attempted to exercise unlawful control over the firearm [or weapon], the State must prove beyond a reasonable doubt that the defendant purposely attempted to exercise unlawful control over the firearm [or weapon].]
The State alleges that the defendant attempted to exercise unlawful control over that firearm [or other weapon] in the possession of a law enforcement [or corrections officer]. Therefore, the State must prove beyond a reasonable doubt that it was the specific purpose of the defendant to exercise unlawful control over the firearm [or weapon]. Although it is possible to commit the crime of taking unlawful control of a firearm or weapon from a law enforcement [or corrections officer] with knowledge, to be guilty of an attempt to exercise unlawful control of the firearm [or weapon], the defendant must act with purpose. In other words, the defendant must have the purpose to exercise unlawful control over the firearm [or weapon]].
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 purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances or (he/she) believes or hopes that they exist.
The indictment charges the defendant with purposely attempting to exercise unlawful control over the firearm [or weapon]. The State must prove that the defendant purposely did anything, under the circumstances as a reasonable person would likely believe them to be, to exercise control over the firearm [or weapon]. However, the step taken must strongly show the substantial6 and not just a very remote preparator act, and must show that the accused had a firmness of criminal purpose.
The nature of the purpose with which the defendant acted toward the officer is a question of fact for you the jury to decide. Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example,
5N.J.S.A. 2C:2-2(B) (1)
6For alternative definitions of attempt, see N.J.S.A. 2C:5-1.
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 4 of 6
that (he/she) knew that his conduct would cause the disarming of the law enforcement officer or take unlawful control over the firearm (or weapon)]
It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. Such things as the place where the acts occurred, the weapon involved, and all that was done or said by the defendant preceding, connected with, and immediately succeeding the events are among the circumstances to be considered.
In order to prove the defendant took unlawful control of the firearm [or weapon], the State need not prove that the firearm [or weapon]] was carried away from the officer or away from the place in which it was kept, but only that the defendant took unlawful control over it.
The third element the State must prove beyond a reasonable doubt is that the officer at the time was acting in the performance of (his/her) duties and was either in uniform or (he/she) exhibited evidence of (his/her) authority.
[Charge is crime charged is only the second degree offense. If the indictment charges the first degree crime, skip this paragraph and continue the charge.]
If you find the State has proved beyond a reasonable doubt all three of the elements as explained to you by the court, you must find the defendant guilt of disarming a law enforcement officer. However, if you find the State has failed to prove any one of the elements beyond a reasonable doubt, then you must find the defendant not guilty.
[Charge if appropriate]
A section of our statutes provides7 that disarming a law enforcement officer is a crime of the second degree, except that it is a crime of the first degree if the defendant:
[Charge appropriate paragraph(s)]
1. Fires or discharges the firearm; [or]
2. Uses or threatens to use the firearm [or weapon] against the officer or any other person; [or]
3. The officer or another person suffers serious bodily injury.
The State must also prove to you beyond a reasonable doubt an additional element to
7N.J.S.A. 2C:12-11(b) (1) (2) & (3)
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 5 of 6
raise the degree of this crime.
[Charge appropriate paragraph(s)]
The additional element the State must prove beyond a reasonable doubt, is that in the course of committing the crime of disarming a law enforcement officer, the defendant knowingly fired or discharged the firearm. [or]
The additional element the State must prove is that the defendant knowingly used or threatened to use the firearm [or weapon] against the officer or any other person. [or]
The additional element the State must prove is that the officer or other person suffered serious bodily injury.
A person acts knowingly with respect to the nature of his conduct or 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 a high probably of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result.
In order for you to determine whether the officer or other person suffered serious bodily injury as a result of the defendant’s actions, you must understand what constitutes serious bodily injury.
“Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.8
“Bodily injury”9 means physical pain, illness or impairment of physical condition.
If you find the State has not proven beyond a reasonable doubt each element of disarming a law enforcement officer as I have defined that crime to you, you must find the defendant not guilty.
If you find the State has proved beyond a reasonable doubt that the defendant has committed the crime of disarming a law enforcement officer, but you have a reasonable doubt as to whether:
[Charge appropriate paragraph(s)]
1. The defendant fired or discharged the firearm: [or]
8N.J.S.A. 2C:11-1b.
9N.J.S.A. 2C:11-1a.
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 6 of 6
2. The defendant used or threatened to use the firearm [or weapon] against the officer or any other person; [or]
3. The officer or other person suffered serious bodily injury; at the time of the commission of the crime of disarming of the law enforcement officer, then you find the defendant guilty of disarming a law enforcement officer in the second degree.
If you find the State has proved beyond a reasonable doubt that the defendant committed the crime of disarming a law enforcement officer and you also find that the State has proved beyond a reasonable doubt that:
[Charge appropriate paragraph(s)]
1. The defendant fired or discharged the firearm; [or]
2. The defendant used or threatened to use the firearm [or weapon] against the officer or any other person; [or]
3. The officer or other person suffered serious bodily injury; then you must find the defendant guilty of disarming a law enforcement in the first degree.

DISARMING A LAW ENFORCEMENT OFFICER

N.J.S.A. 2C:12-11a. & b.
[This charge is to be used where the allegation is that the defendant took unlawful control over the firearm or other weapon]
The defendant is charged by County _________ of the indictment with committing the crime of disarming a law enforcement officer. The indictment is based on a New Jersey statute, the pertinent parts of which read as follows:
A person is guilty of a crime if (he/she) knowingly takes unlawful control over a firearm [or other weapon] in the possession of a law enforcement n[or corrections officer], when that officer is acting in the performance of (his/her) duties, and either is in uniform or exhibits evidence of (his/her) authority.
In order for you to find the defendant guilty of the crime of disarming a law enforcement officer, the State is required to prove each of the following elements beyond a reasonable doubt:
[Insert appropriate word or words]
(1) There was a firearm [or other weapon] in the possession of a law enforcement officer [or corrections officer].
(2) The defendant, knowingly took unlawful control over that firearm [or other weapon].
(3) The officer was acting in the performance of (his/her) duties, and was either in uniform or exhibited evidence of (his/her) authority.
The first element that the State must prove beyond a reasonable doubt was that there was a firearm [or other weapon] in the possession of a law enforcement officer1 [or corrections officer2.
The word “possess” as used in criminal statutes signified a knowing, intentional control over a designated thing, accompanies by a knowledge of its character. The possession of the firearm [or other weapon] by the law enforcement officer [or corrections officer] may be either actual possession or constructive possession.
A law enforcement officer [or corrections officer] is in actual possession of a firearm [or other weapon] when (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.
1For definition of “Law Enforcement Officer” see N.J.S.A. 2C:25-19c
2For definition of “Corrections Officer” see N.J.S.A. 2A:154-4
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 2 of 5
A law enforcement officer [or corrections officer] is in constructive possession of a firearm [or other weapon] even though (he/she) does not have the firearm [or other weapon] on (his/her) person at a given time, if (he/she) is aware of the presence of the firearm [or other weapon] and is able to exercise intention control or dominion over it.
A law enforcement office [or corrections officer], although not in actual possession, who has knowledge of the firearm [or the weapon], and the intention at a given time to exercise control over that firearm [or other weapon], either directly or through another person or persons, is then in constructive possession of the firearm [or other weapon].
A “firearm”3 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. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eights of an inch in diameter, with sufficient force to injure a person.
[Charge is applicable]
A “weapon”4 means anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded, in wood; and (4) stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury though being vaporized or otherwise dispensed in the air.
The second element that the State must prove beyond a reasonable doubt is that the
3N.J.S.A. 2C:39-1f.
4N.J.S.A. 2C:39-1r.
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 3 of 5
defendant knowingly5 took unlawful control over that firearm [or other weapon]. A person exercises unlawful control over an item when (he/she) does anything to either take possession of that item, or remove it from the possession of the person who has possession of it, without permission or authority. In order to prove the defendant exercised unlawful control over the firearm [or weapon], the State must prove beyond a reasonable doubt that the defendant acted knowingly.
A person acts knowingly with respect to the nature of his conduct or 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 a high probably of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result.
The nature of the knowledge with which the defendant acted toward the officer is a question of fact for you the jury to decide. Knowledge is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that (he/she) knew that his conduct would cause the disarming of the law enforcement officer or take unlawful control over the firearm (or weapon)]
It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. Such things as the place where the acts occurred, the weapon involved, and all that was done or said by the defendant preceding, connected with, and immediately succeeding the events are among the circumstances to be considered.
In order to prove the defendant took unlawful control of the firearm [or weapon], the State need not prove that the firearm [or weapon]] was carried away from the officer or away from the place in which it was kept, but only that the defendant took unlawful control over it.
The third element the State must prove beyond a reasonable doubt is that the officer at the time was acting in the performance of (his/her) duties and was either in uniform or (he/she) exhibited evidence of (his/her) authority.
[Charge is crime charged is only the second degree offense. If the indictment charges the first degree crime, skip this paragraph and continue the charge.]
5N.J.S.A. 2C:2-2b(2).
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 4 of 5
If you find the State has proved beyond a reasonable doubt all three of the elements as explained to you by the court, you must find the defendant guilt of disarming a law enforcement officer. However, if you find the State has failed to prove any one of the elements beyond a reasonable doubt, then you must find the defendant not guilty.
[Charge if appropriate]
A section of our statutes provides6 that disarming a law enforcement officer is a crime of the second degree, except that it is a crime of the first degree if the defendant:
[Charge appropriate paragraph(s)]
1. Fires or discharges the firearm; [or]
2. Uses or threatens to use the firearm [or weapon] against the officer or any other person; [or]
3. The officer or another person suffers serious bodily injury.
The State must also prove to you beyond a reasonable doubt an additional element to raise the degree of this crime.
[Charge appropriate paragraph(s)]
The additional element the State must prove beyond a reasonable doubt, is that in the course of committing the crime of disarming a law enforcement officer, the defendant knowingly fired or discharged the firearm. The definition of “Knowingly” has already been explained to you. [or]
The additional element the State must prove is that the defendant knowingly used or threatened to use the firearm [or weapon] against the officer or any other person. [or]
The additional element the State must prove is that the officer or other person suffered serious bodily injury.
In order for you to determine whether the officer or other person suffered serious bodily injury as a result of the defendant’s actions, you must understand what constitutes serious bodily injury.
“Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.7
6N.J.S.A. 2C:12-11(b) (1) (2) & (3)
7N.J.S.A. 2C:11-1b.
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-11A & B
Page 5 of 5
“Bodily injury”8 means physical pain, illness or impairment of physical condition.
If you find the State has not proven beyond a reasonable doubt each element of disarming a law enforcement officer as I have defined that crime to you, you must find the defendant not guilty.
If you find the State has proved beyond a reasonable doubt that the defendant has committed the crime of disarming a law enforcement officer, but you have a reasonable doubt as to whether:
[Charge appropriate paragraph(s)]
1. The defendant fired or discharged the firearm: [or]
2. The defendant used to threatened to use the firearm [or weapon] against the officer or any other person; [or]
3. The officer or other person suffered serious bodily injury; at the time of the commission of the crime of disarming of the law enforcement officer, then you find the defendant guilty of disarming a law enforcement officer in the second degree.
If you find the State has proved beyond a reasonable doubt that the defendant committed the crime of disarming a law enforcement officer and you also find that the State has proved beyond a reasonable doubt that:
[charge appropriate paragraph(s)]
1. The defendant fired or discharged the firearm; [or]
2. The defendant used or threatened to use the firearm [or weapon] against the officer or any other person; [or]
3. The officer or other person suffered serious bodily injury; then you must find the defendant guilty of disarming a law enforcement in the first degree.
8N.J.S.A. 2C:11-1a.

STALKING

(N.J.S.A. 2C:12-10)
Count of this indictment charges defendant with the crime of stalking.
(Read Indictment)
The applicable statute provides, in pertinent part, that:
A person is guilty of stalking....if he purposely or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.
In order for you to find defendant guilty, the State must prove each of the following elements beyond a reasonable doubt:
1. that defendant purposefully or knowingly engaged in a course of conduct directed at a specific person; and
2. that defendant’s conduct was such that it would cause a reasonable person to fear bodily injury or death to (himself/herself) or to a member of (his/her) immediate family.
3. (Charge if applicable: that defendant’s conduct did not occur during organized group picketing).
The first element that the State must prove beyond a reasonable doubt is that defendant purposefully or knowingly engaged in a course of conduct directed at a specific person.
A person acts purposefully 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 purposefully with respect to attendant circumstances if (he/she) believes or hopes that they exist. A person acts purposefully if (he/she) acts with design, with a specific intent, with a particular object or purpose, or if (he/she) means to do what (he/she) does.
Purpose is a condition of the mind that cannot be seen and that can be determined only by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof but
1 This charge has been revised to reflect statutory amendments effective March 12, 1999. L. 1999 c. 47. These amendments and this charge apply only to incidents that occurred after March 12, 1999.
STALKING
N.J.S.A. 2C:12-10
PAGE 2 of 4
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) 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 defendant’s acts and conduct, from all that (he/she) said and did at the particular time and place, and from all surrounding circumstances.
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 if (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result.
As with purpose, knowledge is a condition of the mind that cannot be seen and that can be determined only by inferences from conduct, words or acts.
“Course of conduct” means repeatedly maintaining visual or physical proximity to a person or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.2
“Communication” means any form of communication made by any means, including, but not limited to, any verbal or written communication, communications conveyed by any electronic device, which includes, but is not limited to, a wire, radio, electromagnetic, photoelectric or photo-optical system, telephone, including a cordless, cellular or digital telephone, computer, video recorder, fax machine, pager, or any other means of transmitting voice or data and communications made by sign or gesture.3
“Repeatedly” means on two or more occasions.
The second element that the State must prove beyond a reasonable doubt is that the course of conduct was such that it would cause a reasonable person to fear bodily injury or death to (himself/herself) or a member of (his/her) immediate family.
2 This definition has been revised to reflect statutory amendments effective August 24, 2001. L. 2001, c. 220, § 2.
3 This definition has been added to reflect statutory amendments effective August 24, 2001. L. 2001, c. 220, § 2. The amendment is intended to criminalize the use of the Internet and other electronic communication devices to commit harassment or stalking.
STALKING
N.J.S.A. 2C:12-10
PAGE 3 of 4
“Bodily injury” means physical pain, illness or any impairment of physical condition.4
“Immediate family” means a spouse, parent, child, sibling or any other person who regularly resides in the household or who within the prior six months regularly resided in the household.
(Charge if Applicable)
The third element that the State must prove beyond a reasonable doubt is that defendant’s conduct did not occur during organized group picketing.
If you find that the State has proved each and every element beyond a reasonable doubt, then you must find defendant guilty of stalking. If, however, you find that the State has failed to prove any element of this offense beyond a reasonable doubt, then you must find defendant not guilty.
[Where the degree of the offense is in question, the following should be charged, if applicable.]5
Stalking is ordinarily a crime of the fourth degree. It is, however, a crime of the third degree if defendant, in committing the crime of stalking:
[Charge the appropriate alternative]
a. Violated an existing court order prohibiting the behavior;
or
b. Committed a second or subsequent offense of stalking against the same victim;
or
c. Was serving a term of imprisonment or was on parole or probation as the result of a conviction for any indictable offense under the laws of this State, any other state or the United
4 See N.J.S.A. 2C:11-1
5 In most cases, where degree is in question, the trial court, after the jury returns its verdict of guilty to stalking, should then try the issue of degree before the same jury sequentially; first taking whatever additional proofs are necessary, then charging the jury with this additional language, under the principles set forth in State v. Chenique-Puey, 145 N.J. 334 (1996) and State v. Ragland, 105 N.J. 189 (1996).
STALKING
N.J.S.A. 2C:12-10
PAGE 4 of 4
States.6
If you find beyond a reasonable doubt that defendant committed the crime of stalking, but do not find that the State has proved, beyond a reasonable doubt, that in committing the crime, defendant (charge as appropriate: violated an existing court order prohibiting the behavior, committed a second or subsequent offense of staking against the same victim, and/or was serving a term of imprisonment or was on parole or probation as a result of a conviction for any indictable offense under the laws of this State, any other state or the United States), then your verdict must be guilty of fourth-degree stalking.
If you find beyond a reasonable doubt that defendant committed the crime of stalking and further find that the State has proved, beyond a reasonable doubt, that in committing the crime, defendant (charge the appropriate: violated an existing court order prohibiting the behavior, committed a second or subsequent offense of staking against the same victim, and/or committed the crime while serving a term of imprisonment or while on parole or probation as a result of a conviction for any indictable offense under the laws of this State, any other state or the United States), then your verdict must be guilty of third-degree stalking.
6 This sentencing alternative may require the trial court to sanitize the prior conviction. State v. Brunson, 132 N.J. 377 (1993). Further, the trial court probably must grant a defendant’s offer to stipulate to this custodial element. Cf. State v. Alvarez, 318 N.J. Super. 137, 150-154 (App. Div. 1999).

TERRORISTIC THREATS (THREATS TO KILL)

(N.J.S.A. 2C:12-3(b))
Count of the indictment charges defendant with committing [a] terroristic threat[s]. [READ COUNT OF INDICTMENT].
That section of our statutes provides in pertinent part:
A person is guilty of a crime if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.
In order to convict defendant of the charge, the State must prove the following elements beyond a reasonable doubt:
1. That the defendant threatened to kill another person;
2. That the threat was made with the purpose to put the person in imminent fear of death; and,
3. That the threat was made under circumstances which reasonably caused the person to believe that the threat was likely to be carried out.
The first element that the State must prove beyond a reasonable doubt is that defendant threatened to kill (name of victim). The words or actions of the defendant must be of such a nature as to convey menace or fear of being killed to the ordinary person. It is not a violation of this statute if the threat expresses fleeting anger or was made merely to alarm.2
1 The court should consider cautioning the jury that this charge does not deal with “terrorism” in the post September 11, 2001, sense of the term.
2 See Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary (October 1971).
TERRORISTIC THREATS (THREATS TO KILL)
N.J.S.A. 2C:12-3(b)
Page 2 of 3
The second element that the State must prove beyond a reasonable doubt is that the threat was made with the purpose to put (name of victim) in imminent fear of death.
The third element that the State must prove beyond a reasonable doubt is that the threat was made under circumstances which made (name of victim) believe that the threat was likely to be carried out.3 The threat must be such that it would reasonably convey a fear of death to an ordinary person.4
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 purposely with respect to attendant circumstances if the individual is aware of the existence of such circumstances or the individual believes or hopes that they exist. “With purpose,” “designed,” “with design” or equivalent terms have the same meaning.
The term purposely is a condition of the mind. A condition of the mind 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
3 It is unclear whether the statute requires that the victim be aware of the threat to support a conviction. See State v. Ortisi, 308 N.J. Super. 573, 597 (App. Div.), certif. denied, 156 N.J. 383 (1998) (Court “leaves for another day” issue of whether victims must be made aware of the threat because the evidence in the case showed that victims knew of threat).
4 State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985).
TERRORISTIC THREATS (THREATS TO KILL)
N.J.S.A. 2C:12-3(b)
Page 3 of 3
surrounding circumstances established by the evidence.
If you find that the State has proven all the elements of the offense beyond a reasonable doubt, then you must find the defendant guilty. If, however, you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find defendant not guilty.

TERRORISTIC THREATS

(N.J.S.A. 2C:12-3(a))
Count of the indictment charges defendant with committing [a] terroristic threat[s].
[READ COUNT OF INDICTMENT]
That section of our statutes provides in pertinent part:
A person is guilty of a crime if he threatens to commit any crime of violence with the purpose to
[CHOOSE APPLICABLE ALTERNATIVE]
terrorize another or in reckless disregard of the risk of causing such terror
OR
cause evacuation of a building, place of assembly or facility of public transportation or in reckless disregard of the risk of causing such evacuation
OR
otherwise to cause serious public inconvenience or in reckless disregard of the risk of causing such inconvenience.
In order to convict defendant of the charge, the State must prove the following elements beyond a reasonable doubt:
1. That the defendant threatened to commit a crime of violence.
2. That the threat was made with the purpose to
[CHOOSE APPLICABLE ALTERNATIVE]
TERRORISTIC THREATS
N.J.S.A. 2C:12-3(a)
Page 2 of 5
terrorize another or in reckless disregard of the risk of causing such terror
OR
cause evacuation of a building, place of assembly or facility of public transportation or in reckless disregard of the risk of causing such evacuation
OR
otherwise to cause serious public inconvenience or in reckless disregard of the risk of causing such inconvenience.
The first element that the State must prove beyond a reasonable doubt is that defendant threatened to commit any crime of violence. The State alleges that defendant threatened to commit the violent crime of .1 The words or actions of the defendant must be of such a nature as to convey menace or fear of a crime of violence to the ordinary person. It is not a violation of this statute if the threat expresses fleeting anger or was made merely to alarm.2
The second element that the State must prove beyond a reasonable doubt is that the threat was made with the purpose to
[CHOOSE APPLICABLE ALTERNATIVE]
terrorize another or in reckless disregard of the risk of causing such terror. In this case, the State alleges that defendant intended to terrorize (name of victim). The State need not prove that the victim actually was terrorized.
1 The trial court should instruct the jury on the elements of the crime of violence defendant threatened to commit. State v. MacIlwraith, 344 N.J. Super. 544, 548 (App. Div. 2001).
2 See Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary (October 1971).
TERRORISTIC THREATS
N.J.S.A. 2C:12-3(a)
Page 3 of 5
OR
to cause evacuation of a building, place of assembly or facility of public transportation or in reckless disregard of the risk of causing such evacuation. In this case, the State alleges that defendant intended to cause the evacuation of (name of location). The State need not prove that there actually was an evacuation of a building, place of assembly or facility of public transportation.
OR
to cause serious public inconvenience or in reckless disregard of the risk of causing such inconvenience. In this case, the State alleges that defendant intended to cause serious public inconvenience by (set forth allegation). The State need not prove that there actually was serious public inconvenience.
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 purposely with respect to attendant circumstances if the individual is aware of the existence of such circumstances or the individual believes or hopes that they exist. “With purpose,” “designed,” “with design” or equivalent terms have the same meaning.
A person acts recklessly with respect to the result of his/her conduct if he/she consciously disregards a substantial and unjustifiable risk that the result will occur from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s
TERRORISTIC THREATS
N.J.S.A. 2C:12-3(a)
Page 4 of 5
conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, or foolhardily.
The terms purposely and recklessly are conditions of the mind. A condition of the mind 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.
If you find that the State has proven all the elements of the offense beyond a reasonable doubt, you must find the defendant guilty. If, however, you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find defendant not guilty.
[CHARGE IF APPLICABLE]
If the State has proven defendant guilty of committing [a] terroristic threat[s], then you must further determine beyond a reasonable doubt whether the threat was made during a declared period of (choose appropriate) national, State or county emergency. In this case, the State alleges that when defendant’s threat was made, had declared a period of emergency. It is no defense
TERRORISTIC THREATS
N.J.S.A. 2C:12-3(a)
Page 5 of 5
to the charge that the defendant did not know that there was a declared period of emergency at the time the crime occurred.
If you find that the State has proven beyond a reasonable doubt that the defendant committed a terroristic threat and that the offense occurred during a declared period of national, State or county emergency, then you must find defendant guilty of committing a terroristic threat during a declared period of emergency. If you find that the State has proven beyond a reasonable doubt that the defendant committed a terroristic threat but find that the State has failed to prove beyond a reasonable doubt that the offense occurred during a declared period of national, State or county emergency, then you must find defendant not guilty of committing a terroristic threat during a declared period of emergency.

RECKLESSLY ENDANGERING ANOTHER PERSON

(N.J.S.A. 2C:12-2b(2))
The defendant is charged with the crime of Endangering Another Person.
(Read appropriate count of the indictment)
The law upon which this charge is based reads as follows:
A person commits a crime...if he... [p]urposely or knowingly offers, gives or entices any person to take or accept any treat, candy, gift, food, drink or other substance that is intended to be consumed which is poisonous, intoxicating, anesthetizing, tranquilizing, disorienting, deleterious or harmful to the health or welfare of such person, without the knowledge of the other person as to the identity and effect of the substance....
In order for you to find the defendant guilty of this offense, the State must prove the following elements beyond a reasonable doubt:
1. That defendant offered, gave or enticed (insert name of victim) to take or accept any treat, candy, gift, food, drink or other substance that was intended to be consumed which is poisonous, intoxicating, anesthetizing, tranquilizing, disorienting, deleterious or harmful to the health or welfare of (insert name of victim);
2. That defendant did so without (the victim's) knowing the identity and effect of the substance; and
3. That defendant did this purposely or knowingly.
Some of the words I have used require definition. To "entice" means to convince by presenting temptation or by exciting desire. "Poisonous" means having the effect of a
1 While N.J.S.A. 2C:12-2 is entitled "Recklessly Endangering Another Person," the body of the statute does not refer to reckless conduct but only to purpose and knowledge. The court and counsel should obviously avoid any reference to recklessness before the jury.
[RECKLESSLY] ENDANGERING ANOTHER PERSON
(N.J.S.A. 2C:12-2b(2))
Page 2 of 4
substance that, through its chemical action, usually kills, injures or impairs anyone who ingests it. To "intoxicate" means to make drunk or inebriate. To "anesthetize" is to render insensible. To "tranquilize", as used here, is to render calm and peaceful by the use of substances. To "disorient" is to confuse. "Deleterious" means having the tendency to injure or harm. 2
A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is a person's 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 a person is aware of the existence of such circumstances or a person believes or hopes that they exist. One can be deemed to be acting purposely if one acts with design, with a purpose, with a particular object, if one really means to do what (he/she) does.3
A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if a person is aware that (his/her) conduct is of that nature, or that such circumstances exist or a person is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if a person is aware that it is practically certain that (his/her) conduct will cause such a result. One is said to act knowingly if one acts with knowledge, if one acts consciously, if (he/she) comprehends (his/her) acts.4
Purpose and knowledge are conditions of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. It is not necessary for the State to produce a witness to testify that the defendant stated that (he/she) acted with a
2 The definitions provided are dictionary definitions of words of common understanding.
3 N.J.S.A. 2C:2-2b(1).
[RECKLESSLY] ENDANGERING ANOTHER PERSON
(N.J.S.A. 2C:12-2b(2))
Page 3 of 4
particular state of mind. It is within your power to find that proof of purpose or knowledge has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.
If you find that the State has proven every element beyond a reasonable doubt, then you must find defendant guilty. If, however, the State has failed to prove any element beyond a reasonable doubt, then you must find defendant not guilty.
[CHARGE WHERE APPROPRIATE]
If, and only if, you find the defendant guilty of the crime charged beyond a reasonable doubt, you must proceed to determine whether the State has also proven beyond a reasonable doubt that the defendant committed the crime of endangering another person with the purpose to commit or facilitate the commission of the crime of __________________, the crime specifically alleged by the State.5 You may not consider here any purpose to commit or facilitate the commission of any other criminal offense but . [Define the crime alleged and its elements].
Earlier, I defined purpose for you, and that definition applies here, as well. In considering whether the State has proven the specific purpose charged, you may weigh any reasonable inferences that may arise from all that was said or done and all of the surrounding circumstances of this case. To facilitate the commission of a crime is to make it easier. The State need not prove that defendant accomplished the unlawful purpose charged by actually
4 N.J.S.A. 2C:2-2b(2).
[RECKLESSLY] ENDANGERING ANOTHER PERSON
(N.J.S.A. 2C:12-2b(2))
Page 4 of 4
committing the crime of , if you are satisfied beyond a reasonable doubt that he/she acted with the purpose to commit or facilitate a (name of crime).
So, if, and only if, you find the defendant guilty of endangering another person, beyond a reasonable doubt, then your verdict must also specify whether you find that the State has proven beyond a reasonable doubt that defendant committed the crime of endangering another person with the purpose to commit or facilitate the commission of the crime of ____________________.
5 The statute refers to "another criminal offense." The term "criminal offense" equates with "crime" and does not include disorderly or petty disorderly offenses. See State v. Olivera, 344 N.J. Super. 583, 589 (App. Div. 2001).

RECKLESSLY ENDANGERING ANOTHER PERSON (Loss or Destruction of a Vessel)

(N.J.S.A. 12-2a)
The defendant is charged with the crime of Recklessly Endangering Another Person. The State claims that the defendant:
(Read appropriate count of the indictment)
The law upon which this charge is based reads as follows:
A person who purposely or knowingly does any act, including putting up a false light, which results in the loss or destruction of a vessel, commits a crime of the third degree.
To convince you that is guilty, the State must prove two essential elements beyond a reasonable doubt:
1. That did an act that resulted in the loss or destruction of a vessel and
2. That did this act purposely or knowingly.
Loss or destruction of a vessel means ANY damage to a vessel which has been caused by an act of the defendant. The damage does not have to amount to total destruction. Any amount of damage is enough for the act to be a crime.
A vessel is any structure designed to travel in or on water.
Putting up a false light means using any light or signal for the purpose of luring or misleading a vessel into danger.
I have used the words "purposely" and "knowingly".1 The nature of the purpose or knowledge with which the defendant acted is a question of fact for you, ladies and gentlemen, to decide. Purpose and knowledge are conditions of the mind which cannot be seen, but which may be gathered from a person's conduct, words or acts. It is not necessary for the State to produce a witness who can testify that the defendant said that it was (his/her) purpose to cause loss or destruction to the (name of vessel). It is sufficient for you to find that proof of purpose or
1 While N.J.S.A. 2C:12-2 is entitled "Recklessly Endangering Another Person", the body of the Statute does not refer to "reckless conduct" but only to "purpose" and "knowledge." Perhaps the title should be corrected to read "Endangering Another Person."
RECKLESSLY ENDANGERING ANOTHER PERSON
(Loss or Destruction of a Vessel)
(N.J.S.A. 2C:12-2a)
Page 2 of 2
knowledge has been furnished beyond a reasonable doubt by the nature and circumstances surrounding the conduct under investigation. All that was done or said by the defendant preceding, connected with and immediately following the events in question should be considered in deciding whether or not the defendant purposely or knowingly endangered another person.
A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is a person's 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 a person is aware of the existence of such circumstances or (he/she) believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.2
A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if a person is aware that (his/her) conduct is of that nature, or that circumstances exist, or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if a person 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.3
Summarizing, the State must prove that purposely or knowingly (describe act alleged) and by doing this caused the loss or destruction of the (name of vessel).
If, bearing in mind the meaning of the terms I have just explained, you are satisfied, beyond a reasonable doubt, that the State has proved all of the elements of the crime charged, then you will find guilty. If, on the other hand, you have any reasonable doubt concerning any one of the elements of this crime then you will find not guilty.
2 N.J.S.A. 2C:2-2b (1).
3 N.J.S.A. 2C:2-2b (2).

ENDANGERING INJURED VICTIM

(N.J.S.A. 2C:12-1.2)
(Defendant) is charged with endangering an injured person1, (name), on (date). This conduct is prohibited by a statute providing:
A person is guilty of endangering an injured victim if he causes bodily injury to any person or solicits, aids, encourages, or attempts or agrees to aid another, who causes bodily injury to any person, and leaves the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated, or otherwise unable to care for himself.
To find (defendant) guilty of endangering an injured person, the State must prove beyond a reasonable doubt each of the following elements:
1. That he/she caused bodily injury to another or solicited, aided, encouraged, or attempted or agreed to aid another person in causing bodily injury to the victim;
2. That the injured person was physically helpless, mentally incapacitated, or otherwise unable to care for himself/herself; and
3. That he/she left the scene of the injury knowing or reasonably believing that the injured person was physically helpless, mentally incapacitated, or otherwise unable to care for himself/herself.
The first element that the State must prove beyond a reasonable doubt is that (defendant) caused bodily injury to another or solicited, aided, encouraged, or attempted or agreed to aid a third person in causing bodily injury to another. Bodily injury means physical pain, illness, or impairment of physical condition.
1 The statute used the term “victim” in subsection a, the word “person” in subsection b, and the word “victim” in subsection c. “Person” has been used to refer to the injured party here where the statute is not directly quoted in order to avoid any emotional connotation which might flow from repeating the word “victim.”
ENDANGERING INJURED VICTIM
N.J.S.A. 2C:12-1.2
Page 2 of 5
As to causation, the State must prove beyond a reasonable doubt that, but for (defendant’s) conduct, the victim would not have suffered bodily injury.
As to soliciting, aiding, encouraging, or attempting or agreeing to aid a third person in causing bodily injury to another, the State must prove beyond a reasonable doubt that (defendant) solicited, aided, encouraged, or attempted or agreed to endanger another person or solicited, aided, encouraged, or attempted to aid another in doing so. It does not matter whether (defendant) actually caused such injury. A person is guilty of an attempt if he/she 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 in a course of conduct planned to culminate in the commission of a crime.
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.
The second element that the State must prove beyond a reasonable doubt is that the person who suffered bodily injury was [CHOOSE AS APPROPRIATE] physically helpless, or mentally incapacitated, or otherwise unable to care for himself/herself at that time.
“Physically helpless” means the condition in which a person is unconscious, unable to flee, or physically unable to summon assistance.2
“Mentally incapacitated” means that condition in which a person is rendered temporarily or permanently incapable of understanding or controlling one’s conduct, or of appraising or
2 N.J.S.A. 2C:12-1.2(b)(1).
ENDANGERING INJURED VICTIM
N.J.S.A. 2C:12-1.2
Page 3 of 5
controlling one’s condition, which incapacity shall include but is not limited to an inability to comprehend one’s own peril.3
The third element that the State must prove beyond a reasonable doubt is that (defendant) left the scene of the injury knowing or reasonably believing that the injured person was [CHOOSE AS APPROPRIATE] physically helpless, or mentally incapacitated, or otherwise unable to care for himself/herself at that time.
A person acts knowingly when he/she is aware that it is practically certain that his conduct will cause bodily injury. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he/she is aware that his 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/her 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.
In determining whether (defendant) acted purposely or knowingly, consider the nature of the acts themselves and the severity of the resulting injury.
Whether (defendant) acted purposely or knowingly toward the injured person is a question of fact for you to decide. Purpose and knowledge are conditions of the mind. They cannot be seen. Often, they can be determined only by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that (defendant) stated, for example, that he/she acted purposely or knowingly when he/she did a particular thing. It is within your power to find that proof of purpose or knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding
3 N.J.S.A. 2C:12-1.2(b)(2).
ENDANGERING INJURED VICTIM
N.J.S.A. 2C:12-1.2
Page 4 of 5
circumstances. The place where the acts occurred and all that was done or said by (defendant) proceeding, connected with, and immediately succeeding the events leading to the interaction with (victim) are among the circumstances to be considered.
[CHARGE AS APPLICABLE: AFFIRMATIVE DEFENSE]
It is an affirmative defense to the crime that (defendant) summoned medical treatment for (the injured person) or knew that medical treatment had been summoned by another person and protected (the injured person) from further injury or harm until emergency assistance personnel arrived. (Defendant) must prove this defense by a preponderance of the evidence - that is to say, the greater weight of the credible evidence (or evidence that is more probable, more persuasive, or of greater probative value). For (defendant) to prove this defense, the evidence supporting it must weigh more heavily in your minds and be more convincing than the evidence opposing it. The burden of proof is sustained by the quality of the evidence, not the quantity.
[CHARGE IN ALL CASES]
If the State has proved beyond a reasonable doubt that (defendant) caused bodily injury to (the injured person), or solicited, aided, encouraged, or attempted or agreed to aid another in causing bodily injury to (the injured person), and he/she knew or reasonably believed that (that [injured] person) was physically helpless, or mentally incapacitated, or otherwise unable to care for himself/herself at that time, [CHARGE AS APPLICABLE: and (defendant) has not proved by a preponderance of the evidence that he/she summoned medical treatment for the injured person or knew that medical treatment had been summoned by another person,
ENDANGERING INJURED VICTIM
N.J.S.A. 2C:12-1.2
Page 5 of 5
and that he/she protected the victim from further injury until emergency assistance arrived], you must find him/her guilty of endangering an injured person.
However, if the State has failed to prove beyond a reasonable doubt that (defendant) caused bodily injury to (the person), or solicited, aided, encouraged, or attempted or agreed to aid another in causing bodily injury to (the injured person), and he/she knew or reasonably believed that (that [injured] person) was physically helpless, or mentally incapacitated, or otherwise unable to care for himself/herself at that time, injured, [CHARGE AS APPLICABLE: or if (defendant) has proved by a preponderance of the evidence that he/she summoned medical treatment for the injured person or knew that medical treatment had been summoned by another person, and that he/she protected the victim from further injury until emergency assistance arrived], you must find him/her not guilty.

LEAVING THE SCENE OF AN ACCIDENT RESULTING IN SERIOUS BODILY INJURY

(N.J.S.A. 2C:12-1.1)
The indictment charges the defendant with the offense of leaving the scene of an accident resulting in serious bodily injury to another as follows:
(Read pertinent count of indictment)
The defendant is accused of violating a section of our state statutes that reads as follows:
A motor vehicle operator who knows that he is involved in an accident and knowingly leaves the scene of that accident . . . shall be guilty of a crime. . . if the accident results in serious bodily injury to another person.
In order for you to find the defendant guilty of this offense, you must find that the State has proved beyond a reasonable doubt each of the following elements:
1. that the defendant was operating a motor vehicle and was involved in an accident while operating that motor vehicle;
2. that the defendant knew that (he/she) was involved in an accident;
3. that the defendant knowingly and unlawfully left the scene of that accident; and
4. that the accident resulted in serious bodily injury to another person.
The first element that the State must prove beyond a reasonable doubt is that the defendant was operating a motor vehicle and was involved in an accident while operating the motor vehicle. A motor vehicle is any vehicle propelled otherwise than by muscular power, except such vehicles as run only upon rails or tracks and motorized bicycles.1
The second element that the State must prove beyond a reasonable doubt is that the defendant knew that (he/she) was involved in an accident.
A person knows that (he/she) was involved in an accident if (he/she) is aware that (he/she) was involved in an accident or is aware of a probability that (he/she) was involved in an accident.
The third element that the State must prove beyond a reasonable doubt is that the
1 N.J.S.A. 39:1-1.
LEAVING THE SCENE OF AN ACCIDENT
RESULTING IN SERIOUS BODILY INJURY
N.J.S.A. 2C:12-1.1
PAGE 2 OF 2
defendant knowingly and unlawfully left the scene of the accident.
A motorist knowingly leaves the scene of an accident if (he/she) is aware that (he/she) is leaving the scene of an accident or is aware of a high probability that (he/she) is leaving the scene of an accident.
To determine whether the State has proved beyond a reasonable doubt that the defendant unlawfully left the scene of an accident, you must understand the obligations that New Jersey law places on a motorist who is involved in an accident.
A motorist who knows that (he/she) has been involved in an accident must:
(1) immediately stop (his/her) vehicle at the scene of the accident; or
(2) immediately stop (his/her) vehicle as close to the scene of the accident as possible and forthwith return to the scene of the accident.2
A motorist who fails to stop under these circumstances unlawfully leaves the scene of an accident. However, the State need not prove that the defendant knew of (his/her) legal obligation to stop at or near the scene of the accident.
The fourth element that the State must prove beyond a reasonable doubt is that the accident resulted in serious bodily injury to another person.
Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of any bodily member or organ.3
The State need not prove that defendant knew that the accident had resulted in serious bodily injury.
If you find that the State has proved each element of the offense beyond a reasonable doubt, then you must find the defendant guilty.
If you find that the State has failed to prove any element of the offense beyond a reasonable doubt, then you must find the defendant not guilty.
2 If the sufficiency of the defendant’s stay at the scene of the accident becomes an issue, please refer to N.J.S.A. 39:4-129(c), which specifies how long a motorist must remain at the scene of an accident.
3 When appropriate, the jury should be instructed on causation. N.J.S.A. 2C:2-3.

ASSAULT AT A YOUTH SPORTS EVENT

(N.J.S.A. 2C:12-1f)
Defendant is charged in count __________ of this indictment with assault at a youth sports event. Defendant is charged with violating a provision of our law that provides that:
A person who commits a simple assault... in the presence of a child under 16 years of age at a school or community sponsored youth sports event is guilty of a crime...
In order for you to convict the defendant of this offense, the State must prove the following elements beyond a reasonable doubt:
1. That the defendant committed a simple assault;
2. That the simple assault occurred at a school or community sponsored youth sports event;
3. That the simple assault occurred in the presence of a child under 16 years of age at a school or community sponsored youth sports event.
The first element that the State must prove beyond a reasonable doubt is that the defendant committed a simple assault.
[CHARGE APPROPRIATE SUBSECTION OF SIMPLE ASSAULT
N.J.S.A. 2C:12-1a, as facts warrant]
1. CHARGE IF SIMPLE ASSAULT, N.J.S.A. 2C:12-1a(1) is alleged:
A person commits a simple assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another. In order for you to find the defendant committed a simple assault, the State must prove, beyond a reasonable doubt:
1. That the defendant attempted to cause or actually caused bodily injury to another.
2. That the defendant acted purposely, or knowingly or recklessly.
ASSAULT AT A YOUTH SPORTS EVENT
N.J.S.A. 2C:12-1f
Page 2 of 7
Bodily injury is defined as physical pain, illness or any impairment of the physical condition.
A person acts purposely with respect to causing bodily injury if it is a person's conscious object to cause bodily injury. A person acts purposely with respect to attendant circumstances if a person is aware of the existence of such circumstances or a person believes or hopes that they exist. One can be deemed to be acting purposely if one acts with design, with a purpose, with a particular object, if one really means to do what (he/she) does.
A person acts knowingly with respect to causing bodily injury if a person is aware that (his/her) conduct is of that nature, or that such circumstances exist or a person is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if a person is aware that it is practically certain that (his/her) conduct will cause bodily injury. One is said to act knowingly if one acts with knowledge, if one acts consciously, if (he/she) comprehends (his/her) acts.
A person acts recklessly with respect to causing bodily injury when a person 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 the actor its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, foolhardily.
The nature of the purpose or knowledge or recklessness with which the defendant acted toward the victim of the assault is a question of fact for you the jury to decide. Purpose and knowledge and recklessness are conditions of the mind which cannot be seen and can only be
ASSAULT AT A YOUTH SPORTS EVENT
N.J.S.A. 2C:12-1f
Page 3 of 7
determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that (his/her) purpose was to cause bodily injury. It is within your power to find that proof of purpose or knowledge or recklessness has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances.
For you to find that the defendant caused bodily injury to (insert name of victim), the State must prove beyond a reasonable doubt that (he/she) would not have been injured but for the defendant’s conduct.1
[IF AN ATTEMPT IS ALLEGED, CHARGE APPROPRIATE
MODEL CHARGE ON ATTEMPT, N.J.S.A. 2C:5-1]
OR
2. CHARGE IF SIMPLE ASSAULT, N.J.S. A. 2C:12-1a(2) is alleged:
A person commits a simple assault if he negligently causes bodily injury to another with a deadly weapon. In order for you to find the defendant committed a simple assault, the State must prove, beyond a reasonable doubt
1. that the defendant caused bodily injury to another;
2. that the defendant caused the bodily injury by use of a deadly weapon;
3 that the defendant acted negligently.
Bodily Injury is defined as physical pain, illness, or any impairment of the physical condition of another.
1 N.J.S.A. 2C:2-3a(1). If causation is contested, a fuller explanation of causation may be needed. N.J.S.A. 2C:2-3.
ASSAULT AT A YOUTH SPORTS EVENT
N.J.S.A. 2C:12-1f
Page 4 of 7
Deadly Weapon is defined as any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
A person acts negligently with respect to causing bodily injury 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 circumstance known to him/her, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. A person is said to act negligently if the person acts with carelessness, when compared to how a reasonable person should act under the circumstances as they exist at the time of the assault.2
OR
SIMPLE ASSAULT, N.J.S.A. 2C:12-1a(3) (SUBSTANTIAL STEP)3:
A person commits a simple assault if he attempts, by physical menace, to put another in fear of imminent serious bodily injury.
In order for you to find the defendant committed a simple assault, the State must prove, beyond a reasonable doubt:
1. that the defendant purposely attempted to put (NAME OF VICTIM) in fear of imminent serious bodily injury.
2. that the defendant did so by physical menace.
2 State v. Brown, 228 N.J.Super 211 (App Div 1988), rev'd on other grounds 118 N.J. 595 (1990).
3 This charge is applicable to an attempt under a "substantial step" theory. N.J.S.A. 2C:5-1a(3). If the facts of the case warrant, the charge should be tailored to address the appropriate attempt theory. See N.J.S.A. 2C:5-1a.
ASSAULT AT A YOUTH SPORTS EVENT
N.J.S.A. 2C:12-1f
Page 5 of 7
The first element that the State must prove is whether the defendant purposely attempted to put the (NAME OF VICTIM) in fear of imminent serious bodily injury.
An attempt occurs, in the context of this charge, if the defendant 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 in the course of conduct planned to culminate in (his/her) putting the victim in imminent fear of serious bodily injury.
In order to find that the defendant attempted to put another in fear of imminent serious bodily injury, you must find that he/she did so purposely.
A defendant 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 purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances or (he/she) believes or hopes that they exist.
Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that (his/her) purpose was to put the victim in fear of imminent bodily injury. It is within your power to find that proof of purpose has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances.
To find the that the defendant committed a simple assault by attempting to put (NAME OF VICTIM) in imminent fear of serious bodily injury by physical menace, the State must prove beyond a reasonable doubt that the defendant had the purpose to put the victim in imminent fear of serious bodily injury. The State must also prove beyond a reasonable doubt that the defendant purposely did or omitted to do anything, which, under the circumstances as a
ASSAULT AT A YOUTH SPORTS EVENT
N.J.S.A. 2C:12-1f
Page 6 of 7
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/her) putting the victim in fear of imminent serious bodily injury. However, the step taken must strongly show the defendant’s criminal purpose. That is, the step taken must be substantial and not just a very remote preparatory act, and must show that the accused has a firmness of criminal purpose.
Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Imminent means likely to happen without delay.4
The State must prove beyond a reasonable doubt that the defendant attempted to put the victim in imminent fear of serious bodily injury by means of physical menace. Physical menace is accomplished through an act or acts which are physically threatening acts.5 Words alone are insufficient to constitute physical menace.
RESUMPTION OF MAIN CHARGE:
The second element that the State must prove beyond a reasonable doubt is that the simple assault occurred at a school or community sponsored youth sports event.
A school or community sponsored youth sports event means a competition, practice or instructional event involving one or more interscholastic sports teams or youth sports teams organized pursuant to a nonprofit or similar charter or which are member teams in a youth league
4 Cf. the Model Charge for terroristic threats (N.J.S.A. 2C:12-3b).
5 The 1971 Model Commentary to the Proposed Criminal Code stated that 2C:12-1a(3) codified preexisting New Jersey law. See State v. Drayton, 114 N.J.Super. 490 (App. Div. 1971) and cases cited therein for treatment of how physical menace was interpreted by pre-2C caselaw.
ASSAULT AT A YOUTH SPORTS EVENT
N.J.S.A. 2C:12-1f
Page 7 of 7
organized by or affiliated with a county or municipal recreation department. This term does not include collegiate, semi-professional or professional sporting events.6
The third element that the State must prove beyond a reasonable doubt is that the defendant committed the simple assault in the presence of a child under 16 years of age at a school or community sponsored youth sports event.7
It shall not be a defense to this charge that the defendant did not know that a child under 16 years of age was present or that the defendant believed a child who was present was 16 years of age or older, even if such belief was reasonable.
If you find that the State has proved each element of the offense beyond a reasonable doubt, then you must find the defendant guilty. If, however, you find that the State has failed to prove any element of the offense beyond a reasonable doubt, then you must find the defendant not guilty.
6 N.J.S.A. 2C:12-1f
7 Trial courts should note that N.J.S.A. 2C:12-1f does not define "presence." Specific language addressing the meaning of presence should be included in any instruction if the facts and circumstances of the case warrant.

ASSAULT BY AUTO OR VESSEL (SERIOUS BODILY INJURY, WITHOUT DRUNK DRIVING OR REFUSAL)

(N.J.S.A. 2C:12-1c)
The defendant (Name) is charged in count _____ with the crime of assault by auto [or vessel]. The indictment alleges:
(READ APPROPRIATE COUNT OF INDICTMENT)
The statute upon which this charge is based provides:
A person is guilty of assault by auto [or vessel] when the person drives a vehicle [or vessel] recklessly and causes...serious bodily injury...to another.
In order for you to find the defendant guilty of this crime, the State must prove the following elements beyond a reasonable doubt:
1. That defendant was driving a vehicle [or vessel];1
2. That defendant caused serious bodily injury to (name victim); and
3. That defendant caused such serious bodily injury by driving the vehicle [or vessel] recklessly.
Bodily injury is defined as physical pain, illness or any impairment of physical condition.2 Serious bodily injury is defined as bodily injury which creates a substantial risk of death or which
1 N.J.S.A. 2C:12-1c provides: "As used in this section, 'vessel' means a means of conveyance for travel on water and propelled otherwise than by muscular power."
2 N.J.S.A. 2C:11-1a.
ASSAULT BY AUTO OR VESSEL
(Serious Bodily Injury, Without Drunk Driving Or Refusal)
(N.J.S.A. 2C:12-1c)
Page 2 of 3
causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.3
In order to find that defendant caused (victim's) injury, you must find that (victim) would not have been injured but for defendant's conduct.4
A person acts recklessly when (he/she) consciously disregards a substantial and unjustifiable risk that serious bodily injury will result from (his/her) conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances known to (him/her), disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant's situation.
In other words, in order for you to find the defendant drove a vehicle [or vessel] recklessly, the State must prove beyond a reasonable doubt that the defendant was aware that (he/she) was operating a vehicle [or vessel] in such a manner or under such circumstances as to create a substantial and unjustifiable risk of serious bodily injury to another. The State must also prove beyond a reasonable doubt that the defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted (himself/herself) in the situation.
Recklessness is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. It is not necessary for the State to produce a witness to testify that the defendant stated that (he/she) acted with a particular state of mind. It is within your power to find that proof of recklessness has been furnished beyond a reasonable doubt by
3 N.J.S.A. 2C:11-1b.
4 N.J.S.A. 2C:2-3a(1). If proximate cause is an issue, N.J.S.A. 2C:2-3c should be charged.
ASSAULT BY AUTO OR VESSEL
(Serious Bodily Injury, Without Drunk Driving Or Refusal)
(N.J.S.A. 2C:12-1c)
Page 3 of 3
inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.
[WHERE A VIOLATION OF THE MOTOR VEHICLE STATUTES
IS ALLEGED, ADD THE FOLLOWING]
The State alleges that the defendant's conduct involved [a] violation[s] of the motor vehicle laws of this State. Specifically, it is alleged that the defendant [list motor vehicle violations alleged and their elements]. Whether (he/she) is guilty or not of that [those] offense[s] will be determined by an appropriate court.5 In other words, it is not your job to decide whether (he/she) is guilty or not guilty of the motor vehicle offense[s]. However, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] in deciding whether (he/she) was reckless.
[CHARGE IN ALL CASES]
In conclusion, the three elements of the crime of assault by auto [or vessel] are:
1. That the defendant was driving a vehicle [or vessel];
2. That the defendant caused serious bodily injury to (name victim); and
3. That the defendant caused such serious bodily injury by driving the vehicle [or vessel] recklessly.
If you are satisfied that the State has proven each and every one of these elements beyond a reasonable doubt, then you must find the defendant guilty of assault by auto [or vessel]. However, if the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty of assault by auto [or vessel].
5 State v. Muniz, 118 N.J. 319 (1990).

ASSAULT BY AUTO OR VESSEL (SERIOUS BODILY INJURY, WITH DRUNK DRIVING OR REFUSAL)

(N.J.S.A. 2C:12-1c)
The defendant (Name) is charged in count _____ with the crime of assault by auto [or vessel]. The indictment alleges:
(READ APPROPRIATE COUNT OF INDICTMENT)
The statute upon which this charge is based provides:
A person is guilty of assault by auto [or vessel] when the person drives a vehicle [or vessel] recklessly and causes...serious bodily injury...to another.
In order for you to find the defendant guilty of this crime, the State must prove the following elements beyond a reasonable doubt:
1. That defendant was driving a vehicle [or vessel];2
2. That defendant caused serious bodily injury to (name victim); and
3. That defendant caused such serious bodily injury by driving the vehicle [or vessel] recklessly.
Bodily injury is defined as physical pain, illness or any impairment of physical condition.3 Serious bodily injury is defined as bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.4
1 “Drunk Driving” is utilized as a convenient short-hand label in the caption. The statute is broader in scope and also includes driving while under the influence of substances other than alcohol. In appropriate cases the charge will have to be adapted to fit the facts.
2 N.J.S.A. 2C:12-1c provides: "As used in this section, 'vessel' means a means of conveyance for travel on water and propelled otherwise than by muscular power."
3 N.J.S.A. 2C:11-1a.
4 N.J.S.A. 2C:11-1b.
ASSAULT BY AUTO OR VESSEL
(Serious Bodily Injury, With Drunk Driving Or Refusal)
(N.J.S.A. 2C:12-1c)
Page 2 of 6
In order to find that defendant caused (victim's) injury, you must find that (victim) would not have been injured but for defendant's conduct.5
A person acts recklessly when (he/she) consciously disregards a substantial and unjustifiable risk that serious bodily injury will result from (his/her) conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances known to (him/her), disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant's situation.
In other words, in order for you to find the defendant drove a vehicle [or vessel] recklessly, the State must prove beyond a reasonable doubt that the defendant was aware that (he/she) was operating a vehicle [or vessel] in such a manner or under such circumstances as to create a substantial and unjustifiable risk of serious bodily injury to another. The State must also prove beyond a reasonable doubt that the defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted (himself/herself) in the situation.
In determining whether the State has proven beyond a reasonable doubt that defendant acted recklessly, defendant’s unawareness of a risk, due to self-induced intoxication6, is immaterial.7 In other words, you may find that the State has proven recklessness beyond a reasonable doubt even though the defendant was unaware of a risk of which he/she would have been aware were he/she not intoxicated.8
5 N.J.S.A. 2C:2-3a(1). If proximate cause is an issue, N.J.S.A. 2C:2-3c should be charged.
6 There is no legal distinction between intoxication resulting from alcohol use and that resulting from drug use. Cannel, New Jersey Criminal Code Annotated, Comment 2 to N.J.S.A. 2C:2-8 (Gann 2004) (citing State v. Sette, 259 N.J. Super. 156, 173-74 (App. Div. 1992), certif. denied, 130 N.J. 597 (1992); State v. Green, 318 N.J. Super. 361, 370 (App. Div. 1999), aff’d o.b., 163 N.J. 140 (2001).
7 N.J.S.A. 2C:2-8b. For the exact statutory definition of self-induced intoxication, please see the full text of N.J.S.A. 2C:2-8b.
8 1971 Code Commentary to N.J.S.A. 2C:2-8 as reproduced in Cannel, supra, Comment to N.J.S.A. 2C:2-8.
ASSAULT BY AUTO OR VESSEL
(Serious Bodily Injury, With Drunk Driving Or Refusal)
(N.J.S.A. 2C:12-1c)
Page 3 of 6
Recklessness is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. It is not necessary for the State to produce a witness to testify that the defendant stated that (he/she) acted with a particular state of mind. It is within your power to find that proof of recklessness has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.
[WHERE A VIOLATION OF THE MOTOR VEHICLE STATUTES
IS ALLEGED, ADD THE FOLLOWING]
The State alleges that the defendant's conduct involved [a] violation[s] of the motor vehicle laws of this State. Specifically, it is alleged that the defendant [list motor vehicle violations alleged and their elements]. It may be necessary for you to determine whether defendant operated a vehicle while in violation of New Jersey's drunk driving law [and/or that defendant thereafter refused to submit to a breathalyzer examination as required by New Jersey law], as I will explain shortly. [Charge where appropriate: However, with that one possible exception, whether defendant is guilty or not of a motor vehicle offense will be determined by an appropriate court.9 In other words, it is not your job to decide whether defendant is guilty or not guilty of any motor vehicle offense other than drunk driving (and/or refusal).] In any event, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] in deciding whether (he/she) was reckless.
[CHARGE IN ALL CASES]
In conclusion, the three elements of the crime of assault by auto [or vessel] are:
1. That the defendant was driving a vehicle [or vessel];
2. That the defendant caused serious bodily injury to (name victim); and
3. That the defendant caused such serious bodily injury by driving the vehicle [or vessel] recklessly.
If you are satisfied that the State has proven each and every one of these elements beyond a reasonable doubt, then you must find the defendant guilty of assault by auto [or vessel]. However, if the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty of assault by auto [or vessel].
9 State v. Muniz, 118 N.J. 319 (1990).
ASSAULT BY AUTO OR VESSEL
(Serious Bodily Injury, With Drunk Driving Or Refusal)
(N.J.S.A. 2C:12-1c)
Page 4 of 6
If, and only if, you find the defendant guilty of the crime charged beyond a reasonable doubt, you must proceed to determine whether the State has also proven beyond a reasonable doubt that the defendant operated the auto [or vessel] while in violation of New Jersey’s drunk driving law [or that defendant thereafter refused to submit to a breathalyzer examination as required by New Jersey law].
In order for you to find that the defendant violated the drunk driving law, the State must prove beyond a reasonable doubt that the defendant operated a motor vehicle [or vessel] while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operated a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in (his/her) blood.10
[CHARGE WHERE AND TO THE EXTENT APPROPRIATE]
If, and only if, you find the defendant guilty of the crime charged beyond a reasonable doubt, and you also decide that the State has proven beyond a reasonable doubt that the defendant operated the auto [or vessel] while in violation of New Jersey's drunk driving law [or that defendant thereafter refused to submit to a breathalyzer examination as required by New Jersey law], you must also proceed to determine whether the State has further proven beyond a reasonable doubt that
the defendant did so while on any school property used for school purposes which was owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such property.
[OR]
the defendant did so while driving through a school crossing, if the municipality, by ordinance or resolution, had designated the school crossing as such. A “school
10 N.J.S.A. 39:4-50. There is a substantial body of case law interpreting this statute, and, in appropriate cases, more elaborate instructions may have to be given as to the definitions and application of the statutory language. The charge will also have to be modified where the State alleges refusal to submit to a breathalyzer examination under N.J.S.A. 39:4-50a. Note that N.J.S.A. 39:4-50 was amended, effective January 20, 2004, and that for crimes alleged to have been committed before that date a blood alcohol concentration of 0.10% will be required.
ASSAULT BY AUTO OR VESSEL
(Serious Bodily Injury, With Drunk Driving Or Refusal)
(N.J.S.A. 2C:12-1c)
Page 5 of 6
crossing” means that portion of a highway where school children are required to cross the highway in the vicinity of a school.11
[OR]
the defendant did so while driving through a school crossing knowing that juveniles were present, if the municipality had not designated the school crossing as such by ordinance or resolution. A “school crossing” means that portion of a highway where school children are required to cross the highway in the vicinity of a school.12
It is no defense to a prosecution under the statute that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property [OR while driving through a school crossing that has been designated as such by municipal ordinance or resolution]. Nor is it a defense in such a case that no juveniles were present on the school property [OR crossing zone] at the time of the offense, or that the school was not in session.13
[CHARGE IF APPLICABLE]
The additional element of operating a vehicle [or vessel] in violation of the drunk driving law through a school crossing that has not been designated as such by municipal ordinance or resolution can only be found where there is proof beyond a reasonable doubt that the defendant knew that juveniles were present at the time. A person acts knowingly with respect to the nature of (his/her)
11 N.J.S.A. 39:1-1.
12 N.J.S.A. 39:1-1.
13 N.J.S.A. 2C:12-1c. Note that the last sentence of this paragraph does not apply to the third alternative specified in N.J.S.A. 2C:12-1c(3)(c), which requires that a defendant knows juveniles to be present in a school crossing that has not been designated as such by municipal ordinance or resolution.
ASSAULT BY AUTO OR VESSEL
(Serious Bodily Injury, With Drunk Driving Or Refusal)
(N.J.S.A. 2C:12-1c)
Page 6 of 6
conduct or the attendant circumstances if a person is aware that (his/her) conduct is of that nature, or that such circumstances exist, or a person is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if a person is aware that it is practically certain that (his/her) conduct will cause such a result. One is said to act knowingly if one acts with knowledge, if one acts consciously, if (he/she) comprehends (his/her) acts.14
Knowledge, like recklessness, is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, word, or acts. As I told you before, it is not necessary for the State to produce a witness to testify that the defendant stated that (he/she) acted with a particular state of mind. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.
Record your additional finding(s) in the place(s) provided on your verdict sheet.
14 N.J.S.A. 2C:2-2b(2).