CAUSING OR RISKING WIDESPREAD INJURY OR DAMAGE
(HAZARDOUS WASTE) N.J.S.A. 2C:17-2(a)(2) model jury charge
Count of the indictment charges the defendant with
causing widespread injury or damage in violation of a statute which provides as
follows:
A person. . .who, purposely
or knowingly, unlawfully causes a
release or abandonment of hazardous waste. . .or a toxic pollutant
. . . commits a crime. .
.
In order for the defendant to be found guilty of causing
widespread injury or damage, the State must prove the following elements beyond
a reasonable doubt:
(1) that the defendant unlawfully caused[1]
a release or abandonment of [hazardous waste]
[a
toxic pollutant]; and
(2) that the
defendant acted purposely or knowingly.[2]
The first element the State must prove beyond a reasonable
doubt is that the defendant unlawfully caused a release or abandonment of
[hazardous waste] [a toxic pollutant].
[“Hazardous waste” means any waste or any combination of
waste which poses a present or potential threat to human health, living organisms
or the environment. “Hazardous waste”
shall include, but not be limited to, waste material that is toxic, corrosive,
irritating, sensitizing, radioactive, biologically infectious, explosive or
flammable.[3]]
[“Pollutant” means any dredged spoil, solid waste,
incinerator residue, sewage, garbage, refuse, oil, grease, sewage sludge,
munitions, chemical wastes, biological materials, radioactive substance,
thermal waste, wrecked or discarded equipment, rock, sand, cellar dirt, and
industrial, municipal or agricultural waste or other residue discharged into
the waters of the State. The term
“pollutant” includes both hazardous and nonhazardous pollutants.[4]]
[“Toxic pollutant” means any pollutant identified pursuant
to the Federal Water Pollution Control Act Amendments of 1972,[5]
or any pollutant or combination of
pollutants, including disease causing agents, which after discharge and upon
exposure, ingestion, inhalation or assimilation into any organism, either
directly or indirectly by ingestion through food chains, will, on the basis of
information available to the Commissioner of Environmental Protection or his or
her authorized representative[6],
cause death, disease, behavioral abnormalities, cancer, genetic mutations,
physiological malfunctions, including malfunctions in reproduction, or physical
deformation, in such organisms or their offspring.[7]]
Here the [hazardous waste] [toxic pollutant] alleged by the
State to have been released or abandoned is .
The second element the State must prove beyond a reasonable
doubt is that the defendant acted purposely or knowingly. 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 believes or hopes that they
exist. “With purpose,” “designed,” “with
design,” or equivalent terms have the same meaning.
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.
Purpose and knowledge are conditions 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 purpose or knowledge. It is
within the power of the jury to find that the proof of purpose 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 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 causing widespread injury or damage. If the State has proven each element beyond a
reasonable doubt, you must find the defendant guilty of the crime of causing or
risking widespread injury or damage.
[RECKLESSLY CAUSING
WIDESPREAD INJURY
OR DAMAGE - USE IF
APPLICABLE]
If you find the defendant not guilty of purposely or
knowingly causing widespread injury or damage, you must consider whether or not
the State has proven him/her guilty of recklessly causing widespread
injury or damage.
In order for the defendant to be found guilty of recklessly
causing widespread injury or damage, the State must prove the following
elements beyond a reasonable doubt:
(1) that the
defendant unlawfully caused[8]
a release or abandonment of [hazardous waste] [a toxic pollutant]; and
(2) that the defendant acted recklessly.
The first element the State must prove beyond a reasonable
doubt is that the defendant unlawfully caused a release or abandonment of
[hazardous waste] [a toxic pollutant].
[“Hazardous waste” means any waste or any combination of
waste which poses a present or potential threat to human health, living
organisms or the environment. “Hazardous
waste” shall include, but not be limited to, waste material that is toxic,
corrosive, irritating, sensitizing, radioactive, biologically infectious,
explosive or flammable.[9]]
[“Pollutant” means any dredged spoil, solid waste,
incinerator residue, sewage, garbage, refuse, oil, grease, sewage sludge,
munitions, chemical wastes, biological materials, radioactive substance,
thermal waste, wrecked or discarded equipment, rock, sand, cellar dirt, and
industrial, municipal or agricultural waste or other residue discharged into
the waters of the State. The term
“pollutant” includes both hazardous and nonhazardous pollutants.[10]]
[“Toxic pollutant” means any pollutant identified pursuant
to the Federal Water Pollution Control Act Amendments of 1972,[11] or any pollutant or combination of pollutants, including
disease causing agents, which after discharge and upon exposure, ingestion,
inhalation or assimilation into any organism, either directly or indirectly by
ingestion through food chains, will, on the basis of information available to
the Commissioner of Environmental Protection or his or her authorized representative[12],
cause death, disease, behavioral abnormalities, cancer, genetic mutations,
physiological malfunctions, including malfunctions in reproduction, or physical
deformation, in such organisms or their offspring.[13]]
Here the [hazardous waste] [toxic pollutant] alleged by the
State to have been released or abandoned is .
The second element the State must prove beyond a reasonable
doubt is that the defendant acted recklessly.
A person acts recklessly with respect to the nature of his/her
conduct or a result thereof when he/she
consciously disregards a substantial and unjustifiable risk. 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 him/her, its disregard involves a gross deviation
from the standard of conduct that a reasonable person would observe in the actor’s
situation.[14]
Recklessness 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 acted
or was acting recklessly. It is within
the power of the jury to find that the proof of recklessness 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 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 recklessly causing widespread injury or
damage. If the State has proven each
element beyond a reasonable doubt, you must find the defendant guilty of the
crime of recklessly causing widespread injury or damage.
[1] If causation is in issue, charge N.J.S.A. 2C:2-3.
[2] To convict of this crime, the jurors need not be unanimous
in their findings that the described conduct was committed either
"purposely" or "knowingly."
Some jurors could find the conduct to have been purposeful, while others
found it to be knowing, and the conviction would still be valid.
[3] N.J.S.A. 13:1E-38c.
[4] N.J.S.A. 58:10A-3n.
[5] N.J.S.A. 58:10A-3g; 33 U.S.C. § 1251 et seq.
[6] N.J.S.A. 58:10A-3c.
[7] N.J.S.A. 58:10A-3r.
[8] If causation is in issue, charge N.J.S.A. 2C:2-3.
[9] N.J.S.A. 13:1E-38c.
[10] N.J.S.A. 58:10A-3n.
[12] N.J.S.A. 58:10A-3c.
[13] N.J.S.A. 58:10A-3r.