PERMITTING ESCAPE
(N.J.S.A.
2C:29-5c) model jury charge
A public servant
concerned in detention commits an offense if he knowingly or recklessly permits
an escape.
The indictment alleges that:
(Read relevant part of
Count __ to the jury)
In order for the defendant to be
found guilty of [knowingly][recklessly] permitting an escape, the State must
prove each of the following elements beyond a reasonable doubt:
1. That the defendant
was a public servant concerned in detention;
2. That the defendant
permitted an escape by another;
3. That the defendant
acted [knowingly][recklessly] in permitting an escape by another.
The first element the State must prove beyond a reasonable
doubt is that the defendant was a public servant concerned in detention. (Discuss evidence adduced by the State and by
the Defendant, if any, on this element)
A person is a “public servant” if he/she
is an employee of the state, county, municipality, or other governmental
subdivision of the state.[1] A public servant is regarded as being
“concerned in detention” if he/she,
as part of that employment, was responsible for maintaining individuals in official
detention. “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]
The second element the State must prove beyond a reasonable
doubt is that the defendant permitted an escape by another. A person is considered to have permitted an
escape if, knowing about an intended escape from official confinement, he/she
allowed it to happen. An escape is
defined as (a removal of oneself from official detention) (a failure to return
to official detention following temporary leave granted for a specific purpose
or limited period) without lawful authority. The
third element the State must prove beyond a reasonable doubt is that the
defendant acted [knowingly][recklessly].
[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. "Knowing," "with
knowledge" or equivalent terms have the same meaning.][4] [A person acts recklessly with respect to the
nature of his/her conduct or a result thereof
when he/she
consciously disregards a substantial and unjustifiable risk that an escape
could occur. The risk must be of such a
nature and degree that, considering the nature and purpose of the actor’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 actor’s situation. "Recklessness," "with
recklessness" or equivalent terms have the same meaning.][5]
[Knowledge][Recklessness] 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 mental state. It is
within the power of the jury to find that the proof of
[knowledge][recklessness] 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 EITHER SECTION A OR
SECTION B:
The defendant contends that his/her intent in permitting the charged escape was not illegal. You are advised that legal irregularity in
bringing about or maintaining detention, or lack of jurisdiction of the
committing or detaining authority, is not a defense when the escape is from a
prison[7]
or other custodial facility or from detention pursuant to commitment by
official proceedings.[8]
Defendant maintains that the facility from which he/she
permitted the escape [was not a prison] [was not a custodial facility] [did not
constitute detention pursuant to commitment by official proceedings]. Conversely, the State maintains that the
facility at issue [was a prison] [was a custodial facility] [did constitute
detention pursuant to commitment by official proceedings].
The burden of proof is on the State to disprove the defense
beyond a reasonable doubt.
In order for you to determine whether the State has met this
burden, you must decide whether the State has proven beyond a reasonable doubt
that the permitted escape was from [a prison] [a custodial facility] [detention
pursuant to commitment by official proceedings]. If the State has failed to prove this fact
beyond a reasonable doubt, you must find the defendant not guilty.
Where a defendant is accused of permitting another to escape
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 escapee] [the detaining
authority did not act in good faith under color of 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
escape was conducted in a manner that
involves no substantial risk of harm to the person or property of anyone
else] [the detaining authority did not
act in good faith under color of law].
Thus, simply put, the law provides that permitting escape from 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 has been [confinement] [arrest] [detention] by an
authority who knows there is not a basis for the arrest].
The burden of proof is on the State to disprove the defense
beyond a reasonable doubt.[10]
In order for you to determine whether the State has met this
burden, you must decide whether the State has disproved beyond a reasonable
doubt that [the escape involved no
substantial risk of harm to the person or property of anyone other than the
escapee] [the detaining authority did not act in good faith under color of
law]. If the State has failed to
disprove this fact beyond a reasonable doubt, you must find the defendant not
guilty.
[CHARGE IN ALL CASES]
If the State has failed to prove any 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 permitting an escape. If the State has proven each element beyond a
reasonable doubt, you must find the defendant guilty of the crime of permitting
an escape. [Where appropriate, remind the jury that the State must disprove the
legal irregularity defense beyond a reasonable doubt].
[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] in the course of
permitting 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.][11]
[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.][12]
[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.][13]
If you find that the State has proven beyond a reasonable
doubt that the defendant employed [force] [a threat] [a deadly weapon] [a
dangerous instrumentality] in the course of permitting the escape, then you
must find him/her
guilty of this form of permitting 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 permitting escape.
[1] See
N.J.S.A. 2C:27-1g.
[2] See
N.J.S.A. 2C:4-1 to 2C:4-11. These
provisions concern, inter alia, the insanity defense, evidence of
mental disease or defect, competency to stand trial and commitment upon a
finding that a defendant is not guilty by reason of insanity.
[3] N.J.S.A.
2C:29-5(a). "Official detention”
does not, however, include supervision of probation or parole, or constraint
incidental to release on bail. Id.
[4] See
N.J.S.A. 2C:2-2b(2).
[5] See
N.J.S.A. 2C:2-2b(3).
[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:29-5(d).
[7] For
the purposes of a charge under this statute, a "prison" may include
state prison, county jails or correctional centers, municipal jails, juvenile
detention facilities or reformatories, and the Adult Diagnostic and Treatment
Center. This list of possible prisons is
illustrative only, and not meant to be exhaustive.
[8] Detention
pursuant to official proceedings can include an arrest, an investigatory
detention or a motor vehicle stop. See
State v. Moultrie, 357 N.J. Super. 547 (App. Div. 2003). This list is not meant to be exhaustive.
[9] 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:29-5(d).
[10] 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 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.
[11] See
generally State v. Brannon, 178 N.J. 500 (2004).
[12] 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.
[13] Black's
Law Dictionary (7th ed. 1999).