ESCAPE
(N.J.S.A.
2C:29-5a)
A person commits an offense if he without
lawful authority removes himself from official detention or fails to return to
official detention following temporary leave granted for a specific purpose or
limited period.
In order for the
defendant to be found guilty of escape, the State must prove the following
elements beyond a reasonable doubt:
(1) that the defendant knowingly removed himself/herself from official detention;
OR
(1)
that the defendant knowingly failed to return to official detention following
temporary leave granted for a specific purpose or limited period;
AND
The first element
the State must prove beyond a reasonable doubt is that the defendant knowingly [removed himself/herself from official detention] [failed to return to official
detention following temporary leave granted for a specific purpose or limited
period]. “Official detention” means
[arrest] [detention in any facility for custody of (persons under charge or
conviction of a crime or offense)(persons committed pursuant to chapter 4 of
this Title)[2],
(persons alleged or found to be delinquent)], [detention for extradition or
deportation] [any other detention for law enforcement purposes.][3]
[“Official detention” does not, however, include supervision of probation or parole,
or constraint incidental to release on bail.][4]
The evidence that
the defendant was held in custody has been introduced only for the specific,
narrow purpose of establishing that defendant was subject to official
detention. You must not speculate as to
the reasons why. You may not infer from
this evidence that a defendant has a tendency to commit crimes or that he/she is a bad person. You
may not decide that, just because a defendant is in official detention, he/she must be guilty of the offense(s) charged in this
indictment. The State's evidence is offered only to show that the defendant was
in official detention and may be used for no other purpose.
The second
element the State must prove beyond a reasonable doubt is that the
defendant [removed himself/herself from official detention]
[failed to return to official detention] knowing that he/she
was without lawful authority to do so.
"Without lawful authority" means without the legal right to
engage in such conduct.[5]
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.
Knowledge 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 knowledge.
It is within the power of the jury to find that the proof of knowledge has been furnished beyond a
reasonable doubt by inferences which you may draw from the nature of the acts
and circumstances surrounding the conduct of the defendant as they have been
presented in the evidence you have heard and seen in this case.
[IF LEGAL IRREGULARITY IS RAISED, CHARGE
IF THE ESCAPE IS FROM A PRISON OR OTHER CUSTODIAL FACILITY OR FROM DETENTION
PURSUANT TO COMMITMENT BY OFFICIAL PROCEEDINGS][6]
Legal
irregularity in bringing about or maintaining detention, or lack of
jurisdiction of the committing or detaining authority, shall not be a defense
to a prosecution under this section.
[IF LEGAL IRREGULARITY IS RAISED, CHARGE
IN CASE OF OTHER DETENTIONS][7]
In a case such as
this, where the defendant is accused of escaping from [confinement] [arrest]
[detention], legal irregularity in bringing about or maintaining [confinement]
[arrest] [detention], or lack of jurisdiction of the committing or detaining
authority is a defense, but only if [the escape involved no substantial risk of
harm to the person or property of anyone other than the defendant] [the detaining
authority did not act in good faith under color of state law]. In other words, even where the detaining
authority has not followed proper procedures, or has acted unlawfully or
improperly in effecting confinement, still there is no defense unless [the defendant
acts in a manner that will involve no substantial risk of harm to the person or
property of anyone else] [the detaining authority failed to act in good faith based upon its
own understanding of its lawful authority].
Thus, simply put, the law provides that an escape from an illegal
[confinement] [arrest] [detention] is not criminal [where it involves no
substantial risk of harm to another] [even if it involves a substantial risk of
harm to another, where there is a clear case of abusive (confinement) (arrest)
(detention) by an authority who knows
there is not a basis for the action].
It is for you to
determine whether there has been a legal irregularity by the detaining
authority providing a defense to escape under the law as I have just defined it
for you. The burden of proof is on the
State to disprove the defense once it has been raised and the standard of proof
is, as always, beyond a reasonable doubt.[8]
[CHARGE IN ALL
CASES]
If the State has
failed to prove any one or more of the elements as I have described them to you
beyond a reasonable doubt, you must find the defendant not guilty of the crime
of escape. If the State has proven each
element beyond a reasonable doubt, you must find the defendant guilty of the
crime of escape.
[GRADING]
If you find that
the State has proven defendant guilty beyond a reasonable doubt of this crime,
then you must determine whether or not the State has proven beyond a reasonable
doubt that the defendant employed [force] [a threat] [a deadly weapon] [a
dangerous instrumentality] to effect the escape.
["Force"
means any degree of physical power or strength used against another person,
even though it entails no pain or bodily harm and leaves no mark.][9]
[A “deadly
weapon” is any firearm or other weapon, device, instrument, material or
substance, whether animate or inanimate, which in the manner it is used or is
intended to be used, is known to be capable of producing death or serious
bodily injury or which in the manner it is fashioned would lead the victim
reasonably to believe it to be capable of producing death or serious bodily
injury.[10]]
[A
"dangerous instrumentality" is an instrument, substance or condition
so inherently dangerous that it may cause serious bodily injury or death
without human use or interference.[11]]
If you find that
the State has proven beyond reasonable doubt that the defendant employed
[force] [a threat] [a deadly weapon] [a dangerous instrumentality] to effect
the escape, then you must find him/her guilty of this form of escape. If, on the other hand, you find that the
State has failed to prove this element beyond a reasonable doubt, you must find
him/her not guilty of this form of escape.
[1] It seems clear that this authority may be either express or
implied.
[2] See
N.J.S.A. 2C:4-1 to 2C:4-11.
[4] Id.
[5] If
the defendant claims that the conditions of confinement were such that escape
was necessary to save himself or herself, he or she may conceivably raise the
defense of necessity or duress, see State v. Saxon, 226 N.J.
Super. 653 (Law Div. 1988), aff'd sub. nom. State v. Morris, 242 N.J.
Super. 532 (App. Div. 1990), certif. denied 127 N.J. 321 (1992); Cannel,
Criminal Code Annotated, comment 5, N.J.S. 2C:29-5 (Gann
2005). When the charge is escape,
however, these defenses are extremely difficult to make out. Morris, 242 N.J. Super. at
537-42.
[6] Legal irregularity or lack of jurisdiction is not available
as a defense when the escape is from a prison or other custodial facility or
from detention pursuant to commitment by official proceedings. N.J.S.A. 2C:29-5d.
[7] Legal irregularity or lack of jurisdiction may be available
as a defense when the escape is from a detention that is not a prison, another
custodial facility or detention pursuant to commitment by official
proceedings. N.J.S.A. 2C:29-5d.
[8] See
State v. Moultrie, 357 N.J. Super. 547, 554-555 (App. Div.
2003). To bring this defense into play
there must be some evidence, however slight, that the officer did not act in
good faith under color of state law. Id.
at 559. Quoting the Criminal Law
Revision Commission Commentary, the Moultrie court states that this
involves "clear cases of abusive arrest by officers who know there is no
basis for the arrest." Id. More than just an absence of probable cause
is needed. Id.
[9] See
Model Charge, N.J.S.A. 2C:15-1, Robbery in Second Degree; State v. Brannon, 178 N.J.
500, 510 (2004).
[10] This definition of deadly weapon is set forth at N.J.S.A.
2C:11-1(c). While N.J.S.A.
2C:11-1 limits the definition to
"chapters 11 through 15," it seems appropriate to use this definition
here.
[11] Black's Law Dictionary (7th ed. 1999).
