CRIMINAL MISCHIEF
– TAMPERING SO AS TO ENDANGER
PERSON OR PROPERTY
N.J.S.A.
2C:17-3a(2) model jury charge
(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, knowingly or recklessly tampers with the property of another so as
to endanger person or property. To
convict defendant of this offense, you must find that the State has proved
beyond a reasonable doubt each of the following four elements:
1. That
defendant tampered with tangible property;
2. That
the property tampered with was the property of another person;
3. That
defendant acted purposely, knowingly or recklessly when he/she
tampered with the property; and
4. That
the person or property of another was endangered by defendant's conduct.
The first element that the State
must prove beyond a reasonable doubt is that defendant tampered with tangible
property. To tamper with means to
interfere with another person's property with the purpose of causing harm or
the risk of harm, regardless of whether the property interfered with was
actually damaged.[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 property tampered with was the
property of another person. Property of
another person means that defendant is not the owner of the property tampered
with.[3] In this case, the State alleges that the
property tampered with was (description) of (name).
The third element that the State
must prove beyond a reasonable doubt is that defendant acted purposely,
knowingly or recklessly when he/she
tampered with 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 beyond a reasonable doubt that
it was his/her
purpose or conscious object to tamper with 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 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 tamper with another person's tangible
property.
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.[6] 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 tamper with another person's tangible property.
You should understand that purpose,
knowledge and recklessness 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 purposely, knowingly or recklessly when he/she did a particular thing.
It is within your power to find that proof of purpose, knowledge or
recklessness 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.
The fourth element that the State
must prove beyond a reasonable doubt is that the person or property of another
was endangered by defendant's conduct.
To endanger means to expose to harm or peril.[7]
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 (1) defendant's state of
mind at the time that the offense was committed, and (2) the extent of the
pecuniary loss that defendant caused.
Regarding the state of mind requirement, the instruction that I supplied
to you previously regarding "purposely," "knowingly" and
"recklessly" applies here as well.
Regarding pecuniary loss, that means the financial or monetary loss
suffered by the owner of the property tampered with.[8] The state of mind required and the extent of
the pecuniary loss caused by defendant must both be proved by the State beyond
a reasonable doubt.[9] Regarding the grade of the offense, you must
indicate in your verdict whether you find that:
(1) Defendant
acted purposely or knowingly AND the extent of the pecuniary loss caused by
defendant amounts to $2,000 or more; or
(2) Defendant
acted purposely, knowingly or recklessly AND the extent of the pecuniary loss
caused by defendant amounts to more than $500 but less than $2,000; or
(3) Defendant
acted purposely, knowingly or recklessly AND the extent of the pecuniary loss
caused by defendant amounts to $500 or less.
[2] See Registrar and Transfer
Co. v. Dir. Div. of Taxation, 157 N.J. Super. 532, 549 (Ch. Div.
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 also includes property partly owned by the defendant in
which any other person has an interest which the defendant is not privileged to
infringe. See N.J.S.A. 2C:20-1h.
[8] 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.
[9] 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).