CRIMINAL MISCHIEF - PURPOSEFUL OR KNOWING
DAMAGE TO TANGIBLE PROPERTY
N.J.S.A.
2C:17-3a(1) model jury charge
Count of the indictment charges defendant with
committing the offense of criminal mischief.
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 purposely or knowingly damages the tangible property of another
person. 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. That defendant damaged tangible
property;
2. That the tangible property damaged
belonged to another person; and
The
first element that the State must prove beyond a reasonable doubt is that
defendant damaged tangible property. To
damage means to cause a loss, injury or deterioration that reduces the value or
usefulness of something.[1] Tangible property means real or personal
property that is visible and corporeal, i.e., something that can be seen
and touched.[2]
The
second element that the State must prove beyond a reasonable doubt is that the
damaged property belonged to another person.
Property of another person means that defendant is not the owner of the
property damaged.[3] In this case, the State alleges that the
tangible property damaged was (description) of (name).
The
third element that the State must prove beyond a reasonable doubt is that
defendant acted purposely or knowingly when he/she
damaged the property. 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 defendant 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.[4] In other words, for you to find that
defendant acted purposely, you must be satisfied that the State has proved
beyond a reasonable doubt that it was defendant’s purpose or conscious object
to damage another person’s tangible property.
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.[5] Thus, for you to find that defendant acted
knowingly, you must be satisfied that the State has proved 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 cause damage to
another’s tangible property.
You
should understand that purpose and knowledge are conditions of the mind. They cannot be seen. They 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 purpose or knowledge when he/she
did a particular thing. It is within
your power to find that proof of purpose or knowledge has been furnished beyond
a reasonable doubt by inference 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.
If
you find that the State has not proved beyond a reasonable doubt every element
of the offense, you must find defendant not guilty. But if you determine that the State has
proved every element of criminal mischief beyond a reasonable doubt, you must
find defendant guilty of that offense.
[GRADING]
If
you find defendant guilty of criminal mischief, you must then go on to
determine the extent of the pecuniary loss that defendant caused.[6] Pecuniary loss means a financial or monetary
loss suffered by the owner of the damaged property.[7] The extent of the pecuniary loss caused by
defendant must be proved by the State beyond a reasonable doubt.[8] If you find defendant guilty, you must
indicate in your verdict whether you find the extent of the pecuniary loss
suffered by the owner:
1. amounts to $2,000 or more,
2. amounts to more than $500 but less than
$2,000, or
3. amounts to $500 or less.
[2] See Registrar & Transfer Co. v. Dir.
Div. of Taxation, 157 N.J. Super. 532, 539 (Ch. 1978), rev’d
o.g. 166 N.J. Super. 75 (App. Div. 1979), certif. den. 81 N.J.
63 (1979). Tangible property does not
include intangibles such as contract rights or choses in action. Miller, 33 N.J. Practice, Criminal
Law, § 13.6 at 332 (2001 ed.).
[3] Where
appropriate, charge that property of another includes property partly owned by
defendant in which any other person has an interest which defendant is not
privileged to infringe. See N.J.S.A.
2C:20-1h.
[6] There
is also a form of criminal mischief that is not dependent on the amount of
pecuniary loss suffered by the victim.
This involves criminal mischief that causes “a substantial interruption
or impairment of public communication, transportation, supply of water, gas,
power, or other public service” and constitutes a third degree offense. See N.J.S.A. 2C:17-3b(1). When applicable, the jury should be
instructed on this aspect of the statute instead of or in addition to the pecuniary
loss issue. In such an instruction, the
jury must be charged that a substantial interruption or impairment, etc., must
be proved beyond a reasonable doubt by the State.
[7] In
determining the extent of pecuniary loss, cost of repairs or other methods of
proving damages in civil cases can be used.
Cf., State v. Burks, 188 N.J. Super., 55,
60-61 (App. Div. 1983), certif. den., 93 N.J. 285 (1983). For proving the value of a damaged item, the
standard is fair market value at the time of the offense. See N.J.S.A. 2C:1-14m.
[8] If
the jury has a reasonable doubt regarding the amount of pecuniary loss incurred
or cannot reach a unanimous verdict on that issue, a conviction for criminal
mischief as a disorderly person’s offense should be entered. Cf., State v. Clarke, 198 N.J.
Super. 219, 226 (App. Div. 1985).