(N.J.S.A. 2C:20-2c(2)) model jury charge
In
addition to his/her general denial of guilt, the
defendant contends that he/she is not guilty of (insert appropriate offenses such as theft or receiving
stolen property) because he/she was acting pursuant to a claim of right to the property.
Our
law provides that it is a defense to prosecution[1] for
(insert appropriate charge such as theft or receiving stolen property) that the
defendant acted under an honest claim of right to the property (or service)
involved or that he/she had a right to acquire or dispose of the property as he/she did. An honest claim is one that is genuinely, though not necessarily
correctly, believed by the defendant.
This
defense, you should note, is not limited to situations in which a defendant
believed he/she owned the property.[2] Rather,
it includes those situations in which the defendant honestly, although not
necessarily correctly, believed that he/she had either the right or the authorization to receive, take, acquire, or
dispose of the property.
As
I have mentioned to you, since this is a criminal case the burden of proof is
on the State. The defendant is, therefore, not required to prove that he/she acted pursuant to a claim of right; rather the burden is on the State to
prove that the defendant did not act pursuant to a claim of right. Thus, if the
State has proven all the elements of (insert offense) beyond a reasonable doubt
and has also proven beyond a reasonable doubt that the defendant did not
honestly believe that he/she had a right to the property or was authorized to receive, take, acquire,
or dispose of the property, then you must find the defendant guilty of (insert
offense).
On
the other hand, if the State has failed to prove beyond a reasonable doubt one
or more elements of (insert offense) or if the State has failed to prove beyond
a reasonable doubt that the defendant did not honestly believe he/she had a right to the property or was authorized to receive, take, acquire,
or dispose of the property, then you must find the defendant not guilty.
[1] The statute literally states that a
claim of right is an “affirmative defense,” but when the charge is given the
term “affirmative” should be deleted in order to avoid any suggestion that the
defendant bears the burden of proof. However, since the defense is an
affirmative one, the charge should only be given when there is some evidence
which would support it. N.J.S.A. 2C:1-13b(1). See State v.
Ippolito, 287 N.J. Super. 375 (App. Div. 1996) where the Court found
an evidential basis for this charge in the defendant’s testimony that his
co-defendant told him that the co-defendant’s boss had approved his taking of
the property. (Id. at 378).