CRIMINAL TRESPASS - PEERING
(N.J.S.A. 2C:18‑3(c))
The indictment in this case charges
the defendant with:
(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 peers into a window or other opening of a
dwelling or other structure adapted for overnight accommodation for the purpose
of invading the privacy of another person and under circumstances in which a
reasonable person in the dwelling or other structure would not expect to be
observed.
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 peered into a window
(or other opening) of a dwelling (or other structure adapted for overnight
accommodation);
2. That the defendant did so knowing that he/she had no right to peer at that time;
3. That the defendant did so for the
purpose of invading the privacy of another person;
4. That the defendant did so under
circumstances in which a reasonable person in the dwelling (or other structure
adapted for overnight accommodation) would not expect to be observed.
The
first element that the State must prove beyond a reasonable doubt is that the
defendant peered into a window (or other opening) of a dwelling[1] (or
other structure[2]
adapted for overnight accommodation). The State need not prove that the
defendant actually entered the dwelling (or other structure adapted for
overnight accommodation).
A
dwelling (or other structure adapted for overnight accommodation) means a place
which human beings regularly use for sleeping. A dwelling (or other structure
adapted for overnight accommodation) is no longer a dwelling when its occupants
leave it without any intention to return.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant so peered knowing that he/she had no right to do so at that time. "Knowing" under
this statute means that defendant was aware that he/she was not licensed or privileged to peer in the window (or other
opening) or that defendant was aware of the high probability that he/she was not so licensed or privileged.
The
third element that the State must prove beyond a reasonable doubt is that the
defendant peered for the purpose of invading the privacy of another person.
Acting with “purpose” under the statute means it was the defendant’s conscious
object to invade the privacy of another person. Whether this was the
defendant’s purpose is a question of fact for you to decide. A person acts
purposely with respect to the nature of his/her conduct or a result thereof if it his/her conscious object to engage in
conduct of that nature or to cause such a result. A person 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. "With purpose," "designed," "with
design," or equivalent terms have the same meaning. Purpose is a condition
of the mind that cannot be seen and can only be determined by inferences drawn
from the defendant’s conduct, words or acts. It is not necessary for the State
to prove the existence of such a mental state by direct evidence such as a statement by the defendant that he/she had a particular purpose. It is within the power of the jury to find
that the proof of purpose has been furnished beyond a reasonable doubt by
inferences which you may draw from the nature of the acts and the circumstances
surrounding the conduct of the defendant as they have been presented in the
evidence you have heard and seen in this case.
The
State is not obligated to prove that the person(s) being observed knew that
they were being observed or that the defendant actually observed anyone.
Rather, the State must prove that the defendant peered for the purpose of
invading the privacy of another person.
The
fourth element that the State must prove beyond a reasonable doubt is that the
defendant peered under circumstances in which a reasonable person in the
dwelling (or other structure adapted for overnight accommodation) would not
expect to be observed.
(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 the 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
The
defendant as part of his/her denial of guilt asserts that [CHOOSE
APPLICABLE AFFIRMATIVE DEFENSE(S) FROM ALTERNATIVES BELOW]:
(A)
The dwelling (or other structure adapted for overnight accommodation) was open
to members of the public and he/she complied with all lawful conditions imposed on access to or remaining in
the dwelling (or other structure adapted for overnight accommodation) at the
time that he/she peered into the window (or other opening).[3] It is
the burden of the State to prove beyond a reasonable doubt that the dwelling
(or other structure adapted for overnight accommodation) was not open to
members of the public or that defendant did not comply with all lawful
conditions imposed on access to or remaining in the dwelling (or other
structure adapted for overnight accommodation) at the time that he/she peered into the window (or other opening). Therefore, if you conclude
that the State has proved 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 dwelling (or other
structure adapted for overnight accommodation) was open to members of the
public and defendant complied with all lawful conditions imposed on access to
or remaining in the dwelling (or other structure adapted for overnight accommodation) at the time that he/she peered into the window (or other opening), then you must find the
defendant not guilty. However, if you find that the State has proved all of the
elements of the criminal trespass and has also proved beyond a reasonable doubt
that the dwelling (or other structure adapted for overnight accommodation) was
not open to members of the public or that defendant did not comply with all
lawful conditions imposed on access to or remaining in the dwelling (or other
structure adapted for overnight accommodation) at the time that he/she peered into the window (or other
opening), then you must find the defendant guilty of criminal trespass.
OR
(B)
He/She reasonably believed that the owner
of the premises, (or other person authorized to give permission thereto), would
have permitted him/her to peer into the window (or other
opening).[4] It is
the burden of the State to prove beyond a reasonable doubt that the defendant did
not reasonably believe that he/she would have been permitted by the
owner (or other person empowered to permit access thereto) to peer into the
window (or other opening). Therefore, if you conclude that the State has proved
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 he/she did have a reasonable belief that he/she would have been permitted or
privileged to peer into the window (or other opening), then you must find the
defendant not guilty. However, if you find that the State has proved all of the
elements of the criminal trespass and has also proved beyond a reasonable doubt
that the defendant could not have reasonably believed that he/she would be permitted or privileged to peer into the window (or other
opening), then you must find the defendant guilty of criminal trespass.
[1] State v. Crutcher, 313 N.J.
Super. 203, 208 (App. Div. 1998). See also Id. at 211, noting that the
“structure lost its character as a dwelling when it sat vacant for a
substantial period.”
[2] See the definition of “structure” in 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 for overnight accommodation of persons, or for
carrying on business therein, whether or not a person is actually present.”
