OFFICIAL
MISCONDUCT (N.J.S.A. 2C:30‑2) model jury charge
The State alleges that defendant has
committed official misconduct by the following indictment:
[READ
INDICTMENT]
A public servant is
guilty of official misconduct when, with purpose to obtain a benefit for
himself or another or to injure or to deprive another of a benefit:
a.
He
commits an act relating to his office but constituting an unauthorized exercise
of his official functions, knowing that such act is unauthorized or he is
committing such act in an unauthorized manner; or
b.
He
knowingly refrains from performing a duty which is imposed upon him by law or
is clearly inherent in the nature of his office.
So, for (defendant) to be guilty of
official misconduct, the State must prove each of the following elements beyond
a reasonable doubt:
(1) That
the defendant was a public servant at the relevant time(s);
(2) That
he/she
committed an act relating to his/her office
knowing that it was unauthorized [OR committed the act in an unauthorized
manner knowing that the manner was unauthorized] [OR knowingly refrained from
performing a duty which is imposed upon him/her by law or which is clearly
inherent in the nature of his/her office]; and
(3) That his/her purpose in so acting [OR
refraining] was to benefit himself/herself or another or to injure
or deprive another of a benefit.
First, the State must prove beyond a
reasonable doubt that (defendant) was a public servant when the offense
allegedly occurred. A public servant is
any officer or employee of government, including any branch, subdivision, or
agency of this State or any locality within it.[1]
Second, the State must prove beyond
a reasonable doubt that (defendant) committed an act relating to his/her office
[OR committed the act in an unauthorized manner] [OR refrained from
performing an act required to be performed as part of his/her office]. The "act" in question must relate
to the public servant's office. The
commission of the act [OR the refraining from performing the act] must
constitute an unauthorized exercise of his/her
official functions.[2] The public servant must know that the act [OR
refraining from performing the act] was unauthorized or that the act [OR
refraining] was done in an unauthorized manner. For an act to be related to a public
servant’s office it must be connected to his/her
official duties. An act is not connected
to a public servant’s official duties merely because a public servant performs
the act.
An act is “unauthorized” if it is
committed in breach of some prescribed duty of the public servant’s
office. This duty must be official and
non-discretionary, imposed upon the public servant by law (such as statute,
municipal charter or ordinance) or clearly inherent in the nature of his/her
office. The duty to act must be so clear
that the public servant is on notice as to the standards that he/she must
meet. In other words, the failure to act
must be more than a failure to exhibit good judgment. In addition, the State must prove that
(defendant) knew of the existence of his/her
non-discretionary duty to act prior to the incident in question.[3] Not every unauthorized act committed by a
public servant rises to the level of official misconduct; an unauthorized act
amounts to official misconduct only if the public servant knew at the time that
his/her
conduct was unauthorized and unlawful.
As to (defendant’s) alleged conduct,
the State must prove that there was a clear duty imposed on (defendant) to act [OR
to refrain] as alleged. That is to
say, there must have been a body of knowledge, such as applicable law, by which
(defendant) could regulate and determine the legality of his/her
conduct. One cannot be convicted of
official misconduct if the official duties imposed are themselves unclear. So, if you conclude beyond a reasonable doubt
that (defendant) was required to act [OR to refrain] by statute, rule,
or regulation, and he/she failed
to do so, this element will be satisfied.
[SELECT
APPROPRIATE ALTERNATIVE]
The act(s) [OR refraining] in
question need not be criminal in nature.
Proof of a criminal act is not required to find (defendant) guilty of
this offense.[4]
OR
As
you know, (defendant) is charged with other criminal offenses. The State alleges that these other offenses
constitute the basis for the charge of official misconduct. You must consider each charge separately,
based on the evidence produced in support of that charge. The defendant may be found guilty of official
misconduct, even where he/she
is acquitted of the underlying criminal charge, if the State has proven his/her
guilt of official misconduct beyond a reasonable doubt.
A person acts knowingly as to the
nature of his/her
conduct or the attendant circumstances if he/she is
aware that his conduct is of that nature, or that such circumstances exist, or he/she is
aware of a high probability of their existence.
One acts knowingly as 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. One
acts knowingly if one acts with knowledge, if one acts consciously, if one
comprehends his/her acts.
A state of mind is rarely
susceptible of direct proof, but must ordinarily be inferred from the
facts. Therefore, it is not necessary
that the State produce witnesses to testify that an accused said that he/she had a
certain state of mind when he/she
engaged in a particular act. It is
within your power to find that such proof has been furnished beyond a
reasonable doubt by inference which may arise from the nature of his/her acts
and his/her
conduct, and from all he/she said
and did at the particular time and place, and from all the surrounding
circumstances.
Third, the State must prove beyond a
reasonable doubt that the act [OR refraining] in question was done
purposely to benefit either (defendant) or another, or to harm, injure or
deprive another of a benefit. Benefit
means a gain or advantage, or anything regarded by the beneficiary as a gain or
advantage, including a pecuniary benefit or a benefit to any other person or
entity in whose welfare he/she is
interested. Harm means loss,
disadvantage, or injury, or anything so regarded by the person affected,
including loss, disadvantage, or injury to any other person or entity in whose
welfare he/she is
interested. Here, the State alleges that
the benefit is .
A person acts purposely with respect
to the nature of his/her
conduct or a result thereof if it is the person’s 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 the individual believes or
hopes that they exist. One acts
purposely if one acts with design, with a purpose, with a particular object, if
he/she really
means to do what he/she does.
A state of mind is rarely
susceptible of direct proof, but must ordinarily be inferred from the
facts. Therefore, it is not necessary
that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she
engaged in a particular act. It is
within your power to find that such proof has been furnished beyond a
reasonable doubt by inference which may arise from the nature of his/her acts
and his/her
conduct, and from all he/she said and did at the particular time and
place, and from all the surrounding circumstances.
In conclusion, if the State has
proven each element beyond a reasonable doubt, you must find (defendant) guilty
of official misconduct. On the other
hand, if the State has failed to prove any element beyond a reasonable doubt,
you must find him/her not
guilty.
[IF THE
STATE ALLEGES THAT THE BENEFIT IS PECUNIARY, ADD]
If the State has proved each element
of the crime beyond a reasonable doubt, you must determine the fair market
value of the benefit involved. The State
must prove beyond a reasonable doubt that the value of the benefit involved [IF
APPROPRIATE, ADD: for each specific instance concerning which you have reached
a verdict of guilty] exceeds $200.
[1] See
N.J.S.A. 2C:27‑1.
Definitions. In Chapters 27
through 30, unless a different meaning plainly is required:
b."Government" includes any branch, subdivision or agency of the
government of the State or any locality within it; g. "Public
servant" means any officer or employee of government, including
legislators and judges, and any person participating as juror, advisor,
consultant or otherwise, in performing a governmental function, but the term
does not include witnesses.
[2] An
"act" may be unauthorized because it is declared to be such by
statute, ordinance, rule, regulation or otherwise.
[3] The
New Jersey Penal Code ‑ Volume II: Commentary (2C:30‑2). Subsection b, the "omission to act"
element refers to a public servant who consciously refrains from performing an
official non‑discretionary duty, which duty is imposed upon him by law or which
is clearly inherent in the nature of his office. In addition, the public servant must know of
the existence of such non-discretionary duty to act. Thus, such duty must be either one that is
imposed by law, or one that is unmistakably inherent in the nature of the
public servant's office, i.e., the duty to act is so clear that the public servant
is on notice as to the standards that he must meet. In other words, the failure to act must be
more than mere breach of good judgment.
Absent a duty to act, there can be no conviction.
[4] State v. Parker, 124 N.J.
628 (1991), cert. denied, 509 U.S. 939 (1992).