ATTEMPT
(N.J.S.A. 2C:5‑1)
ALTERNATIVE I
[To be used
when defendant is charged with Attempt]
The
indictment charges that the defendant attempted to commit the crime of
_________________________.
ALTERNATIVE II
[If the facts raise the question whether the crime was
completed, the jury should be instructed to "turn to a consideration of
whether an attempt to commit the crime has been established."[1]]
The
indictment charges that the defendant committed the crime of
_________________________. If you find
that the State has failed to prove beyond a reasonable doubt that the crime of ______________________
was committed, then you should consider whether an attempt to commit the crime
has been established.
[If
“knowing” or lesser culpability would have sufficed for the completed crime,
add the following]
Before
I explain the definition of an attempt, let me explain an important difference
between an attempt and the crime of _____________________. Although it is possible to commit the crime
of _____________________ with [knowledge/recklessness], to be guilty of an
attempt the defendant must act with purpose.
In other words, the defendant must have the purpose to commit the crime
of ______________________, in order to be guilty of attempting it.[2]
[MAIN CHARGE]
The
law provides that a person is guilty of an attempt to commit a crime if the
person:[3]
[Select the appropriate section]
[(1) Attempt - Impossibility]
Purposely
engages in conduct which would constitute the crime if the attendant
circumstances were as a reasonable person would believe them to be;
[or]
[(2) Attempt - When Causing a Particular Result is an
Element of the Crime]
Does
or omits to do anything with the purpose of causing [result] without
further conduct on his part.
[or]
[(3) Attempt-Substantial Step]
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
commission of the crime.
Thus, in order to find the defendant guilty of a
criminal attempt, the State must prove two elements beyond a reasonable doubt:
[Select the appropriate Section]
[(1) Attempt - Impossibility]
The
first element is that the defendant acted 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.
The
second element is that the defendant engaged in conduct which would constitute
the crime of _______________ had the facts been as a reasonable person would
have believed them to be.
[Here define
the crime allegedly attempted if it has not been defined already, or refer
jurors to the definition previously charged]
If
the accused purposely engaged in conduct that would constitute the crime of _______________
had the facts been as a reasonable person would have believed them to be, you
should consider that conduct as evidence of guilt of attempt to commit____________. It does not matter that the defendant failed
to accomplish his/her intended result because the facts were not as a reasonable person
would have believed them to be; it is no defense that the defendant could not
succeed in reaching his/her intended result because of circumstances unknown to him/her. However, there cannot be an
attempt to commit a crime unless the attempt, if completed, would have
constituted the crime.[4]
[or]
[(2) When Causing a Particular Result is an Element of
the Crime]
First,
that the defendant had the purpose to cause [here state the result that is
an element of the alleged attempted crime].
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.
The
second element is that the defendant did or omitted to do anything to cause [state
the result which is an element] without further conduct or action on his/her part. Where the accused has done all that he/she believes necessary to cause [state the result which is an element],
you should consider that as evidence of guilt of an attempt to
commit____________.
[or]
[(3) Substantial Step]
First,
that the defendant had the purpose to commit the crime of ______________. 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.
The
second element is that the defendant purposely did or omitted to do anything,
which, under the circumstances as a reasonable person would believe them to be,
is an act or omission that is a substantial step in the course of conduct planned to culminate in his/her commission
of the crime. 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.
[Charge in Every Case Except One Involving the
Renunciation Defense]
If
you find that the State has proven each of these elements beyond a reasonable
doubt, then you must find the defendant guilty of an attempt to commit___________. However, if you find that the State failed to
prove any of these elements beyond a reasonable doubt, then you must find the
defendant not guilty of an attempt to commit____________.
[Charge Where Appropriate]
RENUNCIATION OF CRIMINAL PURPOSE
[To be used
when the defendant’s conduct would otherwise constitute an attempt under
Section 2 or 3 above]
As
part of the defendant’s denial of guilt, the defendant raised the defense of
renunciation of criminal purpose.
The
accused must prove, by a preponderance of the evidence, that he/she abandoned his/her effort to
commit the crime or otherwise prevented its commission under circumstances that
show a complete and voluntary decision to renounce his/her criminal
purpose. The abandonment of the criminal
effort must begin with the defendant and not be forced upon him/her by some outside event, such as police intervention.[5] Renunciation of criminal purpose is not
voluntary if the reason for it is that it seems more likely that defendant will
be detected or caught, or the objective seems more difficult than it did at the
beginning of the course of conduct.
Renunciation is not complete if the defendant only decides to postpone
the criminal conduct to a better time or to focus on another but similar
objective or victim. If mere abandonment
of the criminal effort is not enough to prevent the offense, then the defendant
must have taken further and affirmative steps that actually prevented the commission
of the offense.[6]
As I
stated, the defendant must prove renunciation by a preponderance of the
evidence. I previously explained that
the State has the burden of proving every element of the crime(s) charged
beyond a reasonable doubt. The burden of
proving renunciation by a preponderance of the evidence is a lesser
burden. It simply means that the
defendant has the burden of establishing that the evidence supporting
renunciation is more likely true than not.
Another way to describe it is the greater weight of the believable
evidence in the case. It does not
necessarily mean the evidence of the greater number of witnesses, but rather,
the evidence that carries the greater convincing power in your minds. I remind you, however, that the burden of
proving every element of the attempt to commit___________as I have previously
defined it is always on the State and never on the defendant.
If
you find that the State has failed to prove any one of these elements beyond a
reasonable doubt, then you must find the defendant not guilty of an attempt to
commit____________. Also, if you find
the State has proven each of these elements beyond a reasonable doubt, but that
the defendant has established by a preponderance of the evidence
that he/she renounced his/her criminal
purpose, then you must find the defendant not guilty. However, if you find that the State has
proven each of these elements beyond a reasonable doubt and the defendant has
failed to establish renunciation by a preponderance of the evidence, then you
must find the defendant guilty.
[3] Because all attempts must be
purposeful, State v. Rhett, 136 N.J. 476; State v. Robinson,
127 N.J. 3, and because other portions of the statute include the
requirement of purpose, the language in N.J.S.A. 2C:5-1a, “acting with
the kind of culpability otherwise required for the commission of the crime,”
should not be charged.
[4] Final Report of the New Jersey
Criminal Law Revision Commission, Vol. II: Commentary, pp.114-115, quoting
from State v. Moretti, 52 N.J. 182, 186-90 (1968). N.J.S.A. 2C:5-1a(1) rejects outright
the defense of impossibility.
