(Read indictment)
The
statute on which the indictment is based reads in pertinent part as follows:
A person commits an offense if, knowing that he is not
licensed or privileged to do so, he enters or surreptitiously remains in any
research facility,[1]
structure[2] or
separately secured or occupied portion thereof.
In order for defendant to be convicted of this offense, the
State must prove the following elements beyond a reasonable doubt:
(1) That the defendant (entered)
(surreptitiously remained)[3] in any
(research facility) (structure) (or a separately secured or occupied portion
thereof), and
(2) That the defendant did so knowing that (he/she)
had no right to enter or to be there at that time.
"Knowing"
under this statute means that defendant was aware that he/she was not licensed or privileged to
(enter) (surreptitiously remain) in or that defendant was aware of the high
probability that he/she was not so licensed or privileged.
(NO AFFIRMATIVE DEFENSE) ADD
If
you find that the State has proven to you all of these elements beyond a
reasonable doubt, then you must find defendant guilty. If the State has failed
to prove any of these elements beyond a reasonable doubt, then you must find
the defendant not guilty.
(AFFIRMATIVE DEFENSES) ADD
Defendant
as part of his/her denial of guilt asserts that [CHOOSE
APPLICABLE AFFIRMATIVE DEFENSE(S) FROM ALTERNATIVES BELOW]:
(A)
the (structure) (research facility) was abandoned.[4] A
(structure) (research facility) is “abandoned” when its legal owner has vacated
it with no intention of returning or reclaiming it.[5] It is
the burden of the State to prove beyond a reasonable doubt that the (structure)
(research facility) was not abandoned. Therefore, if you conclude that the
State has proven all of the elements of the criminal trespass beyond a
reasonable doubt, but you are still not satisfied beyond a reasonable doubt
that the State has disproved the defendant’s claim that the (structure)
(research facility) was abandoned, you must find defendant not guilty. However,
if you find that the State has proven all of the elements of the criminal
trespass and has also proven beyond a reasonable doubt that the (structure)
(research facility) was not abandoned, then you must find defendant guilty of
criminal trespass.
OR
(B)
the (structure) (research facility) was open to members of the public and he/she
complied with all lawful conditions imposed on access to or remaining in the
(structure) (research facility) at the time that he/she
entered (or remained in) it. It is the burden of the State to prove beyond a
reasonable doubt that the (structure) (research facility) was not open to
members of the public and/or that defendant did not comply with all lawful
conditions imposed on access to or remaining in the (structure) (research
facility) at the time that he/she
entered (or remained in) it. Therefore, if you conclude that the State has
proven all of the elements of the criminal trespass beyond a reasonable doubt,
but you are still not satisfied beyond a reasonable doubt that the State has
disproved defendant’s claim that the (structure) (research facility) was open
to members of the public and defendant complied with all lawful conditions
imposed on access to or remaining in the (structure) (research facility) at the
time that he/she
entered (or remained in) it, then you must find defendant not guilty. However,
if you find that the State has proven all of the elements of the criminal
trespass and has also proven beyond a reasonable doubt that the (structure)
(research facility) was not open to members of the public and/or that defendant
did not comply with all lawful conditions imposed on access to or remaining in
the (structure) (research facility) at the time that he/she
entered (or remained in) it, then you must find defendant guilty of criminal
trespass.
OR
(C)
He/She reasonably believed that the owner of the premises, (or other person
authorized to give permission thereto), would have permitted him/her to enter or remain.[6] It is
the burden of the State to prove beyond a reasonable doubt that defendant did
not reasonably believe that he/she would have been permitted by the
owner (or other person empowered to permit access thereto) to enter (or
remain). Therefore, if you conclude that the State has proven all of the
elements of the criminal trespass beyond a reasonable doubt, but you are still
not satisfied beyond a reasonable doubt that the State has disproved
defendant’s claim that he/she did have a reasonable belief that he/she would have been permitted or
privileged to (enter) (remain), then you must find defendant not guilty.
However, if you find that the State has proven all of the elements of the
criminal trespass and has also proven beyond a reasonable doubt that defendant
could not have reasonably believed that he/she would be permitted or privileged to
enter (remain), then you must find defendant guilty of criminal trespass.
DEGREE [CHOOSE ALTERNATIVE(S), IF
APPLICABLE][7]
If
and only if you find defendant guilty of criminal trespass, you must also
determine whether the State has proven beyond a reasonable doubt that the
offense was committed:
(1) in a dwelling. A dwelling is any structure
where individuals reside and sleep, or other structure that is dedicated to or
intended for residential use.[8] Here,
the State alleges ;
the defense contends .
Furthermore, a structure is a dwelling, whether occupied, unoccupied, or
vacant, so long as the State has proven beyond a reasonable doubt that it is
suitable for residential use.[9]
(2) in a research facility. [See footnote 1 supra
for definition of “research facility”].
(3)
on school property. School property is property used for school purposes that
is owned or leased to any elementary or secondary school board or a school bus.[10] [CHARGE
WHERE APPLICABLE: Property that is permissively used for school purposes
but is neither owned nor leased by the school board of any school is not
“school property” within the meaning of this statute.][11]
If
the State has proven beyond a reasonable doubt that the offense was committed
in/on (insert appropriate alternative[s]), you must find defendant
guilty of criminal trespass. If the State has not proven beyond a reasonable
doubt that the offense was committed in/on (insert appropriate
alternative[s]), you must find defendant guilty of criminal trespass, a
disorderly persons offense.
[1] “Research facility” means any
building, laboratory, institution, organization, or school engaged in research,
testing, educational or experimental activities, or any commercial or academic
enterprise that uses warm-blooded or cold-blooded animals for food or fiber
production, agriculture, research, testing, experimentation, or education. A
research facility includes but is not limited to, any enclosure, separately
secured yard, pad, pond, vehicle, building, structure or premises, or
separately secured portion thereof. N.J.S.A. 2C:1-14p.
[2] Definition of “structure”: N.J.S.A.
2C:18-1. In this chapter unless a different meaning plainly is required,
“structure” means any building, room, ship, vessel, car, vehicle or airplane,
and also means any place adapted to overnight accommodation of persons, or for
carrying on business therein, whether or not a person is actually present.
[3] If “surreptitiously remained” is in
your case, charge “that the defendant remained secretly, stealthily, or
fraudulently for some duration in the (research facility) (structure), or a
separately secured or occupied portion thereof knowing that (he/she) was not
licensed or privileged to do so.” [See Cannel, Criminal Code
Annotated, Comment 4, N.J.S.A. 2C:18-2; Kaplowitz v. State Farm
Mutual Automobile Ins. Co., 201 N.J. Super. 593, 600 (Law Div.
1985); Black’s Law Dictionary at p. 1445 (6th ed. 1990) [definition of
“surreptitious”].
[5] Black’s Law Dictionary at p.2
(6th ed. 1990); State v. Bailey, 97 N.J. Super. 396, 400-401
(App. Div. 1967).
[7] 2C:18-3a makes the offense a crime of
the fourth degree if it is committed in a dwelling, a research facility, in a
school, or on school property. Otherwise it is a disorderly persons offense.
[8] State v. Scott, 169 N.J.
94, 104 (2001). Examples of a dwelling include, but are not limited to, a home,
townhouse, apartment, condominium, motel or hotel. Ibid.
[9] As to an unoccupied rental structure,
see Scott, 169 N.J. at 102-04. Compare State v.
Crutcher, 313 N.J. Super. 203, 205 and 211 (App. Div. 1998),
discussed at Scott, 169 N.J. at 102, in which the unoccupied
house was “essentially uninhabitable” not only because it was unoccupied for
nearly a year, but also because it did not have working utilities and was not
in any way being maintained in anticipation of sale or rental.