BURGLARY IN THE THIRD DEGREE
(N.J.S.A. 2C:18‑2a) model jury charge
The
indictment charges the defendant with committing the crime of burglary. The indictment reads as follows:
(Read Indictment)
N.J.S.A. 2C:18‑2a insofar as
it is applicable to this case reads as follows:
A
person is guilty of burglary if, with purpose to commit an offense therein the person:
(1) Enters
a (research facility) (structure), or a separately secured or occupied portion
thereof, unless the (research facility) (structure) was at the time open to the
public or the person is licensed or privileged to enter; or
(2) Surreptitiously
remains in a (research facility) (structure) or a separately secured or
occupied portion thereof knowing that he is not licensed or privileged to do
so.
Specifically,
the defendant in this case is charged with entering with the purpose to commit
an offense. I must therefore explain to
you, first, what constitutes burglary under the law and second, what
constitutes an offense.
In
order for you to find the defendant guilty of burglary, the State must prove
beyond a reasonable doubt the following elements:
1. that the defendant entered[1] the
(research facility) (structure) known as without permission.
2. that the defendant did so with the purpose
to commit an offense therein.
(WHERE APPLICABLE CHARGE PERTINENT PART OF N.J.S.A.
2C:1-14p)
Research
facility means any building, laboratory, institution, organization, or school
engaged in research, testing, educational or experimental activities, or any
commercial or academic enterprise that uses warm-blooded or cold-blooded
animals for food or fiber production, agriculture, research, testing,
experimentation, or education. A research facility includes, but is not limited
to, any enclosure, separately secured yard, pad, pond, vehicle, building
structure or premises or separately secured portion thereof.
Structure
includes any building [OR room, ship, vessel, car, vehicle, or airplane,
and also means any place adapted for overnight accommodation of persons or for
carrying on business therein] whether or not a person is actually present.[2]
“Purpose
to commit an offense” means that the defendant intended to commit an unlawful
act[3] inside
the (structure) (research facility). [WHERE APPLICABLE CHARGE: The
unlawful act(s) allegedly intended are set forth in count(s) of this indictment.][4]
A
person acts purposely with respect to the nature of his 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. Purpose,
with purpose, and similar words have the same meaning.[5] In other
words, in order for you to find that the defendant acted purposely, the State
must prove beyond a reasonable doubt that it was the defendant's conscious
object at the time he/she unlawfully entered [OR surreptitiously remained in] the premises to
commit an unlawful act.[6]
Purpose
is a condition of the mind which cannot be seen and can only be determined by
inferences from conduct, words or acts. A state of mind is rarely susceptible
of direct proof, but must ordinarily be inferred from the facts. Therefore, it
is not necessary, members of the jury, that witnesses be produced to testify
that an accused said he/she acted purposely when he/she engaged in a particular act. His/Her state of
mind may be gathered from his/her acts and his/her conduct, and
from all he/she said and did at the particular time and place, and from all of the
surrounding circumstances.[7]
If
you find that the State has proved the crime charged and each of its elements
beyond a reasonable doubt, then you must find the defendant guilty.
If
you find that the State has failed to prove any element beyond a reasonable
doubt, then you must find the defendant not guilty.
[1] If “surreptitiously remaining” is in
your case, charge as follows: that the defendant surreptitiously remained for
some duration in the (research facility) (structure), or a separately secured
or occupied portion thereof knowing that (he/she) was not licensed or
privileged to do so. [See N.J.S.A. 2C:18-2a(2) and Cannel, Criminal
Code Annotated, Comment 4, N.J.S.A. 2C:18-2 (requirement that this
offense “requires a stay of some duration”)]. “Surreptitiously” means secretly,
stealthily, or fraudulently. [Black’s Law Dictionary at p. 1445 (6th ed.
1990).
[4] “[W]here the circumstances surrounding
the unlawful entry do not give rise to any ambiguity or uncertainty as to a
defendant’s purpose in entering a structure without privilege to do so [and]
led inevitably and reasonably to the conclusion that some unlawful act
is intended to be committed inside the structure, then specific instructions
delineating the precise unlawful acts intended are unnecessary.” Robinson,
289 N.J. Super. at 458 (emphasis in original). However, where the
circumstances surrounding defendant’s purpose in entering or surreptitiously
remaining in the structure or research facility are ambiguous, i.e., the
evidence suggests both criminal and non-criminal purposes for the entry, then
it might be necessary to direct the jury’s consideration to the specific
criminal acts alleged in the indictment, if there are any. See, for instance,
State v. Marquez, 277 N.J. Super. 162, 168-169 (App. Div. 1994).
[6] If the jury may find from the facts
that, although defendant entered the premises without permission he did not do
so with the purpose to commit an offense therein, the jury must be charged on
the appropriate lesser included offense of criminal trespass. See N.J.S.A.
2C:18-3.