(N.J.S.A. 2C:12-1d) model jury charge
Defendant is charged in count ________
of this indictment with Assault by an employee upon the institutionalized
elderly. Defendant is charged with
violating a provision of our law that provides, in pertinent part, that:
A person who is
employed by a facility...who commits a simple assault...upon
an institutionalized elderly
person... is guilty of a crime.[1]
In order for you to convict the
defendant of this offense, the State must prove the following elements beyond a
reasonable doubt:
1.
That the defendant committed a
simple assault upon (INSERT VICTIM);
2.
That the victim was an
institutionalized elderly person;
3. That
the defendant was employed by a facility as defined by the law.
The
first element that the State must prove beyond a reasonable doubt is that the
defendant committed a simple assault.
[CHARGE APPROPRIATE SUBSECTION
OF SIMPLE ASSAULT
N.J.S.A. 2C:12-1(a) or N.J.S.A.
2C:12-1(a)(2), as facts warrant][2]
(1) CHARGE IF SIMPLE ASSAULT, N.J.S.A.
2C:12-1(a)(1) is the basis of allegation:
A person commits a
simple assault if he attempts to cause or purposely, knowingly or recklessly
causes bodily injury to another. In order for you to find the defendant
committed a simple assault, the State must prove, beyond a reasonable doubt:
1. That the defendant attempted to cause or
actually caused bodily injury to another.
2. That the defendant acted purposely, or
knowingly or recklessly.
Bodily injury is defined
as physical pain, illness or any impairment of the physical condition.
A person acts purposely
with respect to causing bodily injury if it is a person's conscious object to cause
bodily injury. A person acts purposely with respect to attendant circumstances
if a person is aware of the existence of such circumstances or a person
believes or hopes that they exist. One
can be deemed to be acting purposely if one acts with design, with a purpose,
with a particular object, if one really means to do what he/she does.
A
person acts knowingly with respect to causing bodily injury if a
person is aware that his/her conduct is of that nature, or
that such circumstances exist or a person is aware of a high probability of
their existence. A person acts knowingly with respect to a
result of his/her conduct if a person is aware
that it is practically certain that his/her conduct will cause bodily
injury. One is said to act knowingly if one acts with knowledge, if one acts
consciously, if he/she comprehends his/her acts.
A person acts recklessly
with respect to causing bodily injury when a person consciously disregards a
substantial and unjustifiable risk that the material element exists or will
result from his/her conduct. 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 the actor its disregard involves
a gross deviation from the standard of conduct that a reasonable person would
observe in the actor's situation. One is said to act recklessly if one acts
with recklessness, with scorn for the consequences, heedlessly, foolhardily.
The nature
of the purpose or knowledge or recklessness with which the defendant acted toward
the victim of the assault is a question of fact for you the jury to
decide. Purpose and knowledge and recklessness are conditions of the mind which
cannot be seen and can only be determined by inferences from conduct, words or
acts. It is not necessary for the State
to produce a witness or witnesses who could testify that the defendant stated,
for example, that his/her purpose was to
cause bodily injury. It is within your power to find that proof
of purpose or knowledge or recklessness has been furnished beyond a reasonable
doubt by inferences which may arise from the nature of the acts and the
surrounding circumstances.
For
you to find that the defendant caused bodily injury to (insert name of
victim), the State must prove beyond a reasonable doubt that (he/she) would
not have been injured but for the defendant’s conduct.[3]
(IF AN ATTEMPT IS ALLEGED, CHARGE APPROPRIATE MODEL CHARGE
ON ATTEMPT, N.J.S.A. 2C:5-1)
-OR-
(2)
CHARGE IF SIMPLE ASSAULT, N.J.S.A.
2C:12-1(a)(2) is the basis of allegation:
A person commits a
simple assault if he negligently causes bodily injury to another with a deadly
weapon. In order for you to find the defendant committed a simple assault, the
State must prove, beyond a reasonable doubt
1. that the defendant caused bodily injury
to another;
2. that the defendant caused the bodily
injury by use of a deadly weapon;
3. that the defendant acted negligently.
Bodily Injury
is defined as physical pain, illness, or any impairment of the physical
condition of another.
Deadly Weapon is defined as 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.
A person acts negligently with respect to causing bodily
injury when he/she should be
aware of a substantial and unjustifiable risk that the material element exists
or will result from his/her conduct. The risk
must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his/her conduct and the
circumstance known to him/her, involves a gross
deviation from the standard of care that a reasonable person would observe in
the actor's situation. A person is said to act negligently if the person acts
with carelessness, when compared to how a reasonable person should act under
the circumstances as they exist at the time of the assault.[4]
[RESUMPTION OF MAIN CHARGE]
The second element that the State
must prove beyond a reasonable doubt is that the victim was an
institutionalized elderly person.
An institutionalized elderly person
is defined as any person 60 years of age or older, who is a patient, resident
or client of any facility.[5]
I
will now define facility for you.
A facility is defined as any
facility or institution, whether public or private, offering health or health
related services for the institutionalized elderly, and which is subject to
regulation, visitation, inspection, or supervision by any government agency. In
this case, the State alleges the facility was (INSERT TYPE OF FACILITY ALLEGED.)[6]
Government Agency means any
department, division, office, bureau, board, commission, authority, or any
other agency or instrumentality created by the State or to which the State is a
party, or by any county or municipality, which is responsible for the
regulation, visitation, inspection or supervision of facilities, or which
provides services to patients, residents or clients of facilities.[7]
A person is considered to be an
institutionalized elderly person if (he/she) is a patient, resident or client
of any facility. A person is considered
to be a patient, resident or client of a facility if (he/she) is receiving
treatment or care in a facility in all its aspects, including, but not limited
to, admission, retention, confinement, commitment, period of residence,
transfer, discharge and any instances directly related to such status.[8]
Thus, to prove the second element,
the State must prove beyond a reasonable doubt that the victim was 60 years of
age or older when the assault occurred, and that (he/she) was a patient,
resident or client of a facility as I have defined those terms for you.
The
third element that the State must prove beyond a reasonable doubt is that defendant
was employed by the facility when the assault occurred.[9]
I have already defined facility for
you.
If you find that the State has
proved each element of the offense beyond a reasonable doubt, then you must
find the defendant guilty. If, however,
you find that the State has failed to prove any element of the offense beyond a
reasonable doubt, then you must find the defendant not guilty.
[1] The statute refers to section 2 of P.L. 1977, c.
239, codified at N.J.S.A. 52:27G-2.
[2] Under the statute, a defendant cannot be found guilty of
this offense based on a theory of simple assault under N.J.S.A.
2C:12-1(a)(3). See N.J.S.A. 2C:12-1(d).
[3] N.J.S.A. 2C:2-3a(1). If
causation is contested, a fuller explanation of causation may be needed. N.J.S.A.
2C:2-3.
[4] State v. Brown, 228 N.J.Super. 211 (App Div
1988), rev'd on other grounds 118 N.J.
595 (1990).
[5] N.J.S.A. 52:27G-2(i).
[6] N.J.S.A. 52:27G-2(f) also states that “Facilities
include, but are not limited to, nursing homes, skilled nursing homes,
intermediate care facilities, extended care facilities, convalescent homes,
rehabilitation centers, residential health care facilities, special hospitals,
veterans' hospitals, chronic disease hospitals, psychiatric hospitals, mental
hospitals, mental retardation centers or facilities, day care facilities for
the elderly and medical day care centers.”
[7] N.J.S.A. 52:27G-2(g).
[8] N.J.S.A. 52:27G-2(l).
[9] N.J.S.A. 52:27G-2(f).
