SIMPLE ASSAULT (Physical Menace/Substantial Step)(Lesser Included)[1]
(N.J.S.A. 2C:12-1a(3))
[1] This
charge is applicable to an attempt under a "substantial step" theory.
N.J.S.A. 2C:5-1(a)(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:5-1(a).
[1] This charge is applicable to an attempt under a "substantial step" theory. N.J.S.A. 2C:5-1(a)(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:5-1(a).
The law requires that the Court instruct the jury with
respect to possible (lesser) included offenses, even if they are not contained
in the indictment. Just because the Court is instructing you concerning these
offenses does not mean that the Court has any opinion one way or another about
whether the defendant committed these, or any, offenses. You should consider
these offenses along with those for which the defendant is indicted. However,
you are not to render a verdict on these offenses or answer the questions on
the verdict sheet unless you find that the State has failed to meet its burden
with regard to the offense(s) in the indictment.
Simple assault is a lesser-included offense to count _____
of this indictment. The statute which defines simple assault provides that:
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.
The first element that the
State must prove is that the defendant purposely attempted to put (NAME OF
VICTIM) in
fear of imminent 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.[1]
Imminent means likely to happen without delay.[2]
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.
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.
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 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.[3]
The second element the State must prove beyond
a reasonable doubt is the defendant attempted to put NAME OF VICTIM in fear of imminent serious bodily
injury by physical menace.
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.[4]
Words alone are insufficient to constitute physical menace.
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.
