(N.J.S.A. 2C:33‑28) model jury charge
The indictment, which charges
(defendant) with soliciting or recruiting another person to join or actively
participate in a street gang, reads:
(Read Indictment)
The statute on which this charge is
based reads:
An actor who solicits or recruits
another to join or actively participate in a criminal street gang with the
knowledge or purpose that the person who is solicited or recruited will
promote, further, assist, plan, aid, agree, or attempt to aid in the commission
of criminal conduct by a member of a criminal street gang, commits a crime ....
To convict (defendant) of this crime,
the State must prove beyond a reasonable doubt each of these elements:
1. That (defendant) solicited or recruited
another person to join or actively participate in a criminal street gang.
2. That
he/she did so with the knowledge or purpose
that the other person will participate,
or attempt to participate, in criminal conduct committed by a member of that gang.
The first element that the State must
prove beyond a reasonable doubt is that (defendant) solicited or recruited
another person to join or actively participate in a criminal street gang.[1] A criminal street gang means three or more
persons associated in fact. Persons are
associated in fact if they have in common a group name or identifying sign,
symbol, tattoo or other physical marking, style of dress or use of hand signs
or other indicia of association or common leadership, and, individually or in
combination with other members of a criminal street gang, while engaging in
gang related activity, have committed, conspired or attempted to commit, within
the preceding three years, two or more criminal acts [specify the nature of the
acts].[2]
The second element that the State must
prove beyond a reasonable doubt is that he/she solicited or recruited another to
join or actively participate in a criminal street gang with the knowledge or
purpose that that other person will participate, or attempt to do so, in
criminal conduct committed by a member of that gang.
A
person acts purposely with respect to the nature of his/her
conduct or a result of his/her
conduct if it is his/her
conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with
respect to the attendant circumstances if he/she
is aware of the existence of such circumstances or he/she
believes or hopes that they exist. “With
purpose,” “designed,” “with design” or equivalent terms have the same meaning.[3]
A
person acts knowingly with respect to the nature of his/her
conduct or the attendant circumstances if he/she is
aware that the conduct is of that nature or that such circumstances exist or
the person is aware of a high probability of their existence. A person acts knowingly with respect to a
result of the conduct if he/she is
aware that it is practically certain that such conduct will cause a result. “Knowing,” “with knowledge,” or equivalent
terms have the same meaning.[4]
Purpose
and knowledge are conditions of the mind which cannot be seen and can only be
determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of
direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of
the jury, 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 of the surrounding
circumstances.
One has the requisite knowledge or
purpose if he/she knows that the person being solicited
or recruited will engage in some form, although not necessarily which form, of
criminal activity.[5]
A person attempts to perform an act if
he/she does or omits to do anything with the
purpose of performing that act without further conduct on his/her part, or purposely does or omits to
do anything which, under the circumstances as a reasonable person would believe
them to be, is an act or omission constituting a substantial step planned to
culminate in the performance of that act. The step taken must strongly show
(defendant’s) criminal purpose. It must
be substantial and not just a very remote preparatory act and must show that
the accused has a firmness of criminal purpose.
So, for (defendant) to be guilty of a
criminal attempt, the State must prove beyond a reasonable doubt that he/she acted purposely and that he/she engaged in conduct which would
constitute a substantial step in soliciting or recruiting another to join or
actively participate in a criminal street gang.
I have already defined purposely.
As I noted, to prove an attempt, the
State must prove beyond a reasonable doubt that (defendant) purposely did or
omitted to do anything which, under the circumstances as a reasonable person
would believe them to be, is an act or omission that is a substantial step in
the course of conduct planned to culminate in his/her
commission of the crime.
If the State has failed to prove any
one of these elements beyond a reasonable doubt you must find (defendant) not
guilty of this crime.
[CHARGE FOLLOWING SENTENCE ONLY IF
DEFENDANT IS NOT ACCUSED OF INJURING VICTIM OR THREATENING BODILY INJURY OR
COMMITTING THIS OFFENSE WHILE ON SCHOOL PROPERTY[6]]
On the other hand, if the State has
proved all of these elements beyond a reasonable doubt, you must find
(defendant) guilty of this crime.
[CHARGE FOLLOWING PARAGRAPH IF
DEFENDANT IS ACCUSED OF THREATENING BODILY INJURY]
If the State has proved each of the
above elements beyond a reasonable doubt, you must consider an additional
element. The State must prove beyond a
reasonable doubt that (defendant) threatened another person with bodily injury
on two or more separate occasions within a thirty day period, in the course of
soliciting or recruiting another person to join the criminal street gang. Bodily injury means physical pain, illness, or
any impairment of physical condition.
[CHARGE FOLLOWING PARAGRAPH IF
DEFENDANT IS ACCUSED OF INFLICTING SIGNIFICANT BODILY INJURY UPON ANOTHER]
If the State has proved each of the
above elements (that is, that [defendant] solicited or recruited another to
join or actively participate in a criminal street gang, with the knowledge or
purpose that the other person will participate, or attempt to do so, in
criminal conduct committed by a member of that gang) beyond a reasonable doubt,
you must consider an additional element.
The State must prove beyond a reasonable doubt that (defendant), in the
course of such solicitation or recruitment, inflicted significant bodily injury
upon another person. “Significant bodily
injury” means bodily injury which creates a temporary loss of the functions of
any bodily member or organ or temporarily loss of any one of the five senses. Bodily injury means physical pain, illness,
or any impairment of physical condition.
[CHARGE FOLLOWING PARAGRAPH IF
DEFENDANT IS ACCUSED OF COMMITTING THIS OFFENSE WHILE ON SCHOOL PROPERTY[7]]
If the State has proved each of the
above elements beyond a reasonable doubt, you must consider an additional element.
The State must prove beyond a reasonable
doubt that (defendant), in the course of soliciting or recruiting another
person to join the criminal street gang, did so while on any school property. The term “school property” means any property
which is used for school purposes and is owned by or leased to an elementary
school, secondary school or school board.[8] It does not matter whether the school is
public, private or parochial. It is also
no defense to this charge that no juveniles were present on the school property
at the time of the offense, or that the school was not in session. The possibility that defendant may have been
unaware that the prohibited conduct took place on school property is not a
defense to this crime and shall not be considered by you in your deliberations.
If the State has proved beyond a
reasonable doubt all elements of the offense charged, you must find (defendant)
guilty of soliciting or recruiting to join a criminal street gang [CHOOSE
APPLICABLE ALTERNATIVE] while threatening another with bodily injury on two
or more occasions within a 30‑day period OR while inflicting significant
bodily injury upon another AND/OR while on any school property. On the other hand, if the State has failed to
prove the additional element(s) beyond a reasonable doubt, but has proved the
first two elements beyond a reasonable doubt, you must find (defendant) guilty
of soliciting or recruiting to join a criminal street gang without [CHOOSE
APPLICABLE ALTERNATIVE] threatening another with bodily injury on two or
more occasions within a 30‑day period OR inflicting significant bodily
injury upon another AND/OR while on any school property. Finally, if you find that the State has failed
to prove either of the first two elements beyond a reasonable doubt, you must
find (defendant) not guilty.
[1] The definitions in this paragraph are
found in N.J.S.A. 2C:44‑3(h).
[2] See N.J.S.A. 2C:44‑3(h).
The specific crimes delineated in the
statute are robbery, carjacking, aggravated assault, assault, aggravated sexual
assault, sexual assault, arson, burglary, kidnapping, extortion, or certain
weapons and drug laws.
[3] N.J.S.A.
2C:2-2b(1).
[5] N.J.S.A. 2C:33‑28(h).
[6] P.L. 2013, c. 202
amended this statute to create the third degree crime for offenses committed on
school property on or after January 17, 2014.
[7] P.L. 2013, c. 202 amended this statute to
create the third degree crime for offenses committed on school property on or
after January 17, 2014.
[8] Where there is a question whether the
property was used for school purposes charge the following:
“In addition to determining whether property is school property, you
must determine the purpose for which it is used. You must decide whether the
property is regularly, consistently, and actually used for school purposes, and
whether the property’s appearance would give an objectively reasonable person
reason to know that it was used regularly, consistently, and actually for
school purposes.” State v. Ivory, 124 N.J. 582, 587, 592 (1991).