CRIMINAL MISCHIEF – DAMAGE/REMOVAL/IMPAIRMENT OF
AIR TRAFFIC DEVICE
(N.J.S.A.
2C:17-3b(4)) model jury charge
Count of the
indictment charges defendant with committing the offense of criminal mischief
by (insert allegation of indictment). In pertinent part, the indictment alleges
that
(Read
material part of Count to jury)
Defendant is charged with violating
a provision of our law that provides that a person is guilty of criminal
mischief if he/she damages, removes or impairs the operation of any device which
serves to regulate or ensure the safety of air traffic at any airport, landing
field, landing strip, heliport, helistop or any other aviation facility.
In
order to convict defendant of this offense, you must find that the State has
proved beyond a reasonable doubt each of the following three elements:[1]
1. That (name
of affected location) is an airport/landing field/landing
strip/heliport/ helistop or other aviation facility;
2. That
defendant damaged/removed/impaired the operation of a device which serves to
regulate or ensure the safety of air traffic at (name of affected
location); and
The first element that the State
must prove beyond a reasonable doubt is that (name of affected location)
is an airport/landing field/landing strip/heliport/helistop/or other aviation
facility.
The second element that the State
must prove beyond a reasonable doubt is that defendant damaged/removed/impaired
the operation of a device which serves to regulate or ensure the safety of air
traffic at (name of affected location). Objects encompassed by the statute include
but are not limited to a sign, a signal, a light or any other equipment
utilized at (name of affected location) to regulate or ensure the
safety of air traffic.[3]
The third element that the State
must prove beyond a reasonable doubt is that defendant acted knowingly when he/she damaged/removed/impaired the (air traffic device). A defendant acts knowingly with respect to
the nature of his/her
conduct or the attendant circumstances if defendant is aware that his/her
conduct is of that nature, or that such circumstances exist, or defendant is
aware of a high probability of their existence.
A defendant acts knowingly with respect to a result of his/her
conduct if defendant is aware that it is practically certain that his/her
conduct will cause such a result.[4]
You should understand that knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by
inferences from conduct, words or acts.
Therefore, it is not necessary for the State to produce witnesses to
testify that defendant stated, for example, that he/she acted with knowledge when he/she did a particular thing.
It is within your power to find that proof of knowledge has been
furnished beyond a reasonable doubt by inferences which may arise from the
nature of the acts and the surrounding circumstances. The place where the acts occurred and all
that was done or said by defendant preceding, connected with, and immediately
succeeding the events in question are among the circumstances to be
considered. Thus, for you to find that
the defendant acted knowingly, you must be satisfied beyond a reasonable doubt
that defendant knew what he/she was doing, and that defendant was aware that the nature of his/her
conduct and the attendant circumstances were such as to make it practically
certain that defendant's conduct would damage/remove/impair the operation of a
device which served to regulate or ensure the safety of air traffic at (name
of airport, etc.).
If you find that the State has
failed to prove beyond a reasonable doubt any element of the
offense, you
must find defendant not guilty.
[CHARGE AS FOLLOWS IF SUBMITTING ONLY 4TH
DEGREE OFFENSE TO JURY]
On the other hand, if you find that
the State has proven beyond a reasonable doubt every
element of
the offense, you must find defendant guilty.
[CHARGE
AS FOLLOWS IF SUBMITTING TO JURY THE 3RD DEGREE OFFENSE OF
AIR
TRAFFIC DEVICE CRIMINAL MISCHIEF WITH BODILY INJURY/DAMAGE
TO
PROPERTY AS WELL AS THE 4TH DEGREE OFFENSE]
If you find that the State has
proved beyond a reasonable doubt all three of the elements of criminal mischief
that I have defined for you, you must then go on in your deliberations to
consider two additional elements: You
must determine whether the State has proved beyond a reasonable doubt:
4. That
defendant's damage/removal/impairment of the operation of the air traffic
device caused bodily injury to (name of person). Bodily injury means physical pain, illness or
any impairment of the physical condition,[5]
[or, in the alternative]
4. That
defendant's damage/removal/impairment of the operation of the air traffic
device caused damage to property. Any
damage to property, no matter how nominal, satisfies this element of the
statute, and
5. That
defendant acted recklessly with respect to the infliction of this bodily
injury/damage to property.[6]
A person acts recklessly when he/she consciously disregards a substantial and unjustifiable
risk. A conscious disregard requires
that defendant actually be aware of the risk, but that he/she ignores it anyway. The
risk must be of such a nature and degree that, considering the nature and
purpose of defendant'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 same situation.[7] In other words, for you to find that
defendant acted recklessly, you must be satisfied beyond a reasonable doubt
that defendant was aware of and disregarded a substantial and unjustifiable
risk that his/her
conduct would cause bodily injury/damage to property.
If you find that the State has
proved beyond a reasonable doubt all five of the elements of criminal mischief
with bodily injury/damage to property, you must find defendant guilty of that
offense. If, however, you find that the
State has failed to prove beyond a reasonable doubt either element four (bodily
injury/damage to property) or element five (recklessness) but that the State
has proved beyond a reasonable doubt the first three elements of the offense,
you must find defendant not guilty of criminal mischief with bodily
injury/damage to property but must find defendant guilty of criminal
mischief. Finally, if you find that the
State has failed to prove beyond a reasonable doubt any of the first three
elements that were explained to you, you must find defendant not guilty of any
form of criminal mischief.
[CHARGE
AS FOLLOWS IF SUBMITTING TO JURY THE 2ND DEGREE OFFENSE
OF AIR TRAFFIC DEVICE CRIMINAL MISCHIEF CAUSING A
DEATH
AS WELL AS THE 4TH DEGREE OFFENSE]
If you
find that the State has proved beyond a reasonable doubt all three of the
elements of criminal mischief that I have defined for you, you must then go on
in your deliberations to consider two additional elements. You must determine whether the State has
proved beyond a reasonable doubt that:
4. That
defendant's damage/removal/impairment of the operation of the air traffic
device caused the death of (name of deceased); and
5. That
defendant acted recklessly with respect to causing this death.
A defendant acts recklessly when he/she consciously disregards a substantial and unjustifiable
risk. A conscious disregard requires
that defendant actually be aware of the risk, but that he/she ignores it anyway. The
risk must be of such a nature and degree that, considering the nature and
purpose of defendant'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 same situation.[8] In other words, for you to find that
defendant acted recklessly, you must be satisfied beyond a reasonable doubt
that defendant was aware of and disregarded a substantial and unjustifiable
risk that his/her
conduct would cause the death of another person.
If you
find that the State has proved beyond a reasonable doubt all five of the
elements of criminal mischief causing a death, you must find defendant guilty
of that offense. If, however, you find
that the State has failed to prove beyond a reasonable doubt either element
four (death of another person) or element five (recklessness) but that the
State has proved beyond a reasonable doubt the first three elements of the
offense, you must find defendant not guilty of criminal mischief causing a
death but must find defendant guilty of criminal mischief. Finally, if you find that the State has
failed to prove beyond a reasonable doubt any of the first three elements that
were explained to you, you must find defendant not guilty of any form of
criminal mischief.
[1] The form of the offense defined here
is a fourth degree crime. Second and
third degree versions of the offense contain additional elements and are
considered within.
[2] N.J.S.A.
2C:17-3b(4) does not set forth any culpability standard for the offense. The statute should therefore be construed to
require proof that defendant acted knowingly.
See N.J.S.A. 2C:2-2c(3).
[6] If the infliction of bodily injury had
been defendant's purpose or intention when damaging/removing/impairing the
operation of the air traffic device, defendant would also be exposed to prosecution
under assault statutes. Reckless conduct
which causes bodily injury is also prosecutable as an assault. See N.J.S.A. 2C:12-1a(1).
[8] If causing death had been defendant's
purpose or intention when damaging/removing/impairing with the air traffic
device, defendant would also be exposed to prosecution under homicide
statutes. Reckless conduct which causes
death is also prosecutable as a homicide (manslaughter). See N.J.S.A. 2C:11-3 and 4.