CAUSING OR
FACILITATING ESCAPE
(N.J.S.A.
2C:29-5c) model jury charge
in violation of a statute which
provides as follows:
Any
person who knowingly causes or facilitates an escape commits an offense.
The
indictment alleges that:
(Read relevant part of Count __ to the
jury)
In order for the
defendant to be found guilty of knowingly [causing][facilitating] an escape,
the State must prove each of the following elements beyond a reasonable doubt:
2. That the defendant
acted knowingly.
The first element the State must prove beyond a reasonable
doubt is that the defendant [caused][facilitated] an escape by another. [A person
is considered to have caused an escape when the escape would not have occurred
but for the person’s conduct and the escape was within his/her contemplation at the time he/she
acted.] [A person is considered to have facilitated an escape
when by his/her conduct he/she
made it easier for another to escape or assisted or helped in the escape.] An
escape is defined as (a removal of one's self from official detention) (a
failure to return to official detention following temporary leave granted for a
specific purpose or limited period) without lawful authority. “Official detention” means [arrest]
[detention in any facility for custody of (persons under charge or conviction
of a crime or offense)(persons committed pursuant to chapter 4 of this Title),[2]
(persons alleged or found to be delinquent)] [detention for extradition or
deportation] [any other detention for law enforcement purposes.][3]
The second element the State must prove beyond a reasonable
doubt is that the defendant acted knowingly.
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 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. "Knowing," "with
knowledge" or equivalent terms have the same meaning.[4]
Knowledge is a condition of the mind that cannot be seen and
can only be determined by inferences drawn from the defendant's conduct, words
or acts. It is not necessary for the
State to prove the existence of such a mental state by direct evidence such as
a statement by the defendant that he/she
had a particular knowledge. It is within
the power of the jury to find that the proof of knowledge has been furnished
beyond a reasonable doubt by inferences which you may draw from the nature of
the acts and circumstances surrounding the conduct of the defendant as they
have been presented in the evidence you have heard and seen in this case.
IF
LEGAL IRREGULARITY IS RAISED, CHARGE EITHER SECTION A OR SECTION B:
SECTION A[5]
The defendant contends that his/her intent in [causing][facilitating] the charged escape was
not illegal. You are advised that legal irregularity in
bringing about or maintaining detention, or lack of jurisdiction of the
committing or detaining authority, is not a defense when the escape is from a
prison[6]
or other custodial facility or from detention pursuant to commitment by
official proceedings.[7]
Defendant maintains that the facility from which he/she
[caused][facilitated] the escape [was not a prison] [was not a custodial
facility] [did not constitute detention pursuant to commitment by official
proceedings]. Conversely, the State maintains
that the facility at issue [was a prison] [was a custodial facility] [did
constitute detention pursuant to commitment by official proceedings].
The burden of proof is on the State to disprove the defense
beyond a reasonable doubt.
In order for you to determine whether the State has met this
burden, you must decide whether the State has proven beyond a reasonable doubt
that the escape the defendant is charged with [causing] [facilitating] was from
[a prison] [a custodial facility] [detention pursuant to commitment by official
proceedings]. If the State has failed to
prove this fact beyond a reasonable doubt, you must find the defendant not
guilty.
The defendant contends that his/her intent in [causing] [facilitating] the charged escape was not
illegal. Where a defendant is accused of
[causing] [facilitating] another's escape from [confinement] [arrest]
[detention], legal irregularity in bringing
about or maintaining [confinement] [arrest] [detention], or lack of jurisdiction
of the committing or detaining authority is a defense, but only if [the escape
involved no substantial risk of harm to
the person or property of anyone other than the escapee] [the detaining
authority did not act in good faith under color of law]. In other words, even where the detaining
authority has not followed proper procedures, or has acted unlawfully or
improperly in effecting confinement, still there is no defense unless [the
escape was conducted in a manner that involves no substantial risk of harm to
the person or property of anyone else] [the detaining authority failed to act
in good faith under color of law]. Thus,
simply put, the law provides that [causing] [facilitating] an escape from
illegal [confinement] [arrest] [detention] is not criminal [where it involves
no substantial risk of harm to another] [even if it involves a substantial risk
of harm to another, where there has been [confinement] [arrest] [detention] by
an authority who knows there is not a basis for the arrest].
In order for you to determine whether the State has met this
burden, you must decide whether the State has disproved, beyond a reasonable
doubt that [the escape involved no substantial risk of harm to the person or
property of anyone other than the escapee] [the detaining authority did not act
in good faith under color of law]. If
the State has failed to disprove this fact beyond a reasonable doubt, you must
find the defendant not guilty.
[CHARGE IN ALL CASES]
If the State has failed to prove any one or more of the
elements as I have described them to you beyond a reasonable doubt, you must
find the defendant not guilty of the crime of [causing] [facilitating] an escape.
If the State has proven each element beyond a reasonable doubt, you must
find the defendant guilty of the crime of causing or facilitating an
escape. [Where appropriate, remind the
jury that the State must disprove legal irregularity beyond a reasonable doubt].
[GRADING]
If you find that the State has proven defendant guilty beyond
a reasonable doubt of this crime, then you must determine whether or not the
State has proven beyond reasonable doubt that the defendant employed [force] [a
threat] [a deadly weapon] [a dangerous instrumentality] in the course of
causing or facilitating the escape.
["Force" means any degree of physical power or
strength used against another person, even though it entails no pain or bodily
harm and leaves no mark.][10]
[A “deadly weapon” is 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 or which in the manner it is fashioned
would lead the victim reasonably to believe it to be capable of producing death
or serious bodily injury.][11]
[A "dangerous instrumentality" is an instrument,
substance or condition so inherently dangerous that it may cause serious bodily
injury or death without human use or interference.][12]
If you find that the State has proven beyond reasonable doubt
that the defendant employed [force] [a threat] [a deadly weapon] [a dangerous
instrumentality] in the course of causing or facilitating the escape, then you
must find him/her
guilty of this form of causing or facilitating an escape. If, on the other hand, you find that the
State has failed to prove this element beyond a reasonable doubt, you must find
him/her
not guilty of this form of causing or facilitating an escape.
[1] See
State v. Martin, 119 N.J. 2 (1990).
[2] See
N.J.S.A. 2C:4-1 to 2C:4-11. These
provisions concern, inter alia, the insanity defense, evidence of
mental disease or defect, competency to stand trial and commitment upon a
finding that a defendant is not guilty by reason of insanity.
[3] N.J.S.A.
2C:29-5(a). “Official detention” does
not, however, include supervision of probation or parole, or constraint
incidental to release on bail. Id.
[4] See
N.J.S.A. 2C:2-2b(2).
[5] Legal
irregularity or lack of jurisdiction is not available as a defense when the
escape is from a prison or other custodial
facility or from detention pursuant to commitment by official proceedings. N.J.S.A. 2C:29-5(d).
[6] For
the purposes of a charge under this statute, a "prison" may include
state prison, county jails or correctional centers, municipal jails, juvenile
detention facilities or reformatories, and the Adult Diagnostic and Treatment
Center. This list of possible prisons is
illustrative only, and not meant to be exhaustive.
[7] Detention
pursuant to official proceedings can include an arrest, an investigatory
detention or a motor vehicle stop. See
State v. Moultrie, 357 N.J. Super. 547 (App. Div. 2003). This list is not meant to be exhaustive.
[8] Legal
irregularity or lack of jurisdiction may be available as a defense when the
escape is from a detention that is not a prison, another custodial facility or
detention pursuant to commitment by official proceedings. N.J.S.A. 2C:29-5(d).
[9] See
State v. Moultrie, 357 N.J. Super. 547, 554-555 (App. Div.
2003). To bring this defense into play
there must be some evidence, however slight, that the officer did not act in
good faith under color of law. Id.
at 559. Quoting the Criminal Law
Revision Commission Commentary, the Moultrie court states that this
involves "clear cases of abusive arrest by officers who know there is no
basis for the arrest." Id. More than just an absence of probable cause
is needed. Id.
[10] See
generally State v. Brannon, 178 N.J. 500 (2004).
[11] This
definition of deadly weapon is set forth at N.J.S.A. 2C:11-1(c). While N.J.S.A. 2C:11-1 limits the
definition to "chapters 11 through 15," it seems appropriate to use
this definition here.
[12] Black's
Law Dictionary (7th ed. 1999).