DEFENSE OF PROPERTY (N.J.S.A. 2C:3-6) model jury charge
As a part of his/her denial
of guilt, the defendant contends that his/her acts
were justified because they were committed in defense of his/her
(premises) (personal property).
DEFENSE OF PREMISES (N.J.S.A. 2C:3-6(a) and (b)
A
section of our criminal law provides that ......... the use of force upon or
toward the person of another is justifiable when the actor is in possession or
control of premises or is licensed or privileged to be thereon and he
reasonably believes such force necessary to prevent or terminate what he
reasonably believes to be the commission or attempted commission of a criminal
trespass by such other person in or upon such premises.[1]
A reasonable belief is one that is not recklessly or negligently held[2]; it is a belief that would be held by a person of
ordinary prudence and intelligence situated as defendant was. As the statute indicates, the defense of
property exonerates a person who uses force in the reasonable belief that such
action was necessary to prevent or terminate the commission or attempted
commission of a criminal trespass, even though his/her belief was later proven mistaken.
Accordingly, the law requires only a reasonable, not necessarily a
correct, judgment.[3]
A person commits a criminal trespass
if, knowing that he is not licensed or privileged to do so, he enters or
surreptitiously remains in any research facility, structure, or separately
secured or occupied portion thereof.[4]
Our criminal law further provides
that, in defense of premises, the use of force is justifiable.........only if
the actor first requests the person against whom such force is used to desist
from his interference with the property, unless the actor reasonably believes
that (a) such request would be useless; (b) it would be dangerous to himself or
another person to make the request or (c) substantial harm will be done to the
physical condition of the property which is sought to be protected before the request
can effectively be made.
The use of force to defend premises
is not justifiable if the actor knows that the exclusion of the trespasser will
expose him/her to substantial danger of serious bodily
harm.
Serious bodily harm is defined as:
Bodily harm which
creates a substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any bodily
member or organ [WHERE APPLICABLE: or which results from aggravated sexual
assault or sexual assault].[5]
[USE OF DEADLY FORCE]
The use of deadly force is not
justifiable in the defense of premises unless the actor reasonably believes
that [CHOOSE APPLICABLE PROVISION]:
(a) The
person against whom the force is used is attempting to dispossess him/her of his/her dwelling otherwise than
under a claim of right to its possession.
A dwelling means any building or structure, though movable or temporary,
or a portion thereof, which is for the time being the actor’s home or place of
lodging....[6] [If applicable, insert
Model Jury Charge on Claim of Right, pursuant to N.J.S.A. 2C:20-2c.].
OR
(b) The
person against whom the force is used is attempting to commit or consummate
[CHOOSE: arson, burglary, robbery or other criminal theft or property
destruction.] [At this point, instruct
the jury on applicable offense, along with proper instruction on attempt].
Deadly
force is defined as force which the actor uses with the purpose of causing or which
he knew created a substantial risk of causing death or serious bodily harm.[7]
[CHARGE WHERE APPROPRIATE: Purposely firing a firearm in the
direction of another person or at a vehicle, building or structure in which
another person is believed to be constitutes deadly force.[8]]
[CHARGE WHERE APPROPRIATE: A threat to cause death or serious bodily
harm by the production of a weapon or otherwise, so long as the actor's purpose
is limited to creating an apprehension that he/she will
use deadly force if necessary, does not constitute deadly force.[9]]
However, even in the instance(s)
just mentioned, the use of deadly force is not justified unless the actor
reasonably believes that [CHOOSE
APPLICABLE PROVISION]:
(i) the person against whom it is
employed has employed or threatened deadly force against or in the presence of
the actor.
OR
(ii) the use of force other than
deadly force to prevent the commission or the consummation of the crime would
expose the actor or another in his/her
presence to substantial danger of bodily harm.
“Bodily harm” means physical pain, or temporary disfigurement, or
impairment of physical condition.[10]
If an actor is within a dwelling at
the time that he/she used
deadly force to prevent the commission or consummation of [crime about which
the jury has been instructed], this fact alone is sufficient to establish that he/she
reasonably believed that he/she was in
substantial danger of bodily harm. In
other words, if defendant was within a dwelling when he/she used
deadly force against [name of alleged victim], you must find that he/she
reasonably believed that he/she was in
substantial danger of bodily injury unless the State disproves that finding beyond
a reasonable doubt.[11] I have already defined the term “dwelling”
for you.
[IN
ALL CASES INVOLVING USE OF DEADLY FORCE]: I have already defined “deadly
force” and “reasonable belief” for you.
DEFENSE OF PERSONAL PROPERTY (N.J.S.A. 2C: 3-6(c) and
(d)
A section of our
criminal law provides that...
the use of force upon or
toward the person of another is justifiable when the actor reasonably believes
it necessary to prevent what he reasonably believes to be an attempt by such
other person to commit [CHOOSE
APPLICABLE CRIME: theft, criminal mischief or other criminal interference
with personal property in his possession or in the possession of another for
whose protection he acts].
[Define
offense or offenses by the "victim" which may be involved, as well as
the appropriate instructions for attempt, if applicable.]
Our
criminal law further provides that in the defense of personal property.
the use of force is justifiable only if
the actor first requests the person against whom such force is used to desist
from his interference with the property, unless the actor reasonably believes
that (a) such request would be useless; (b) it would be dangerous to himself or
another to make the request; or (c) substantial harm will be done to the
physical condition of the property which is sought to be protected before the
request can effectively be made.
[Define reasonable belief as in the
preceding section.]
The use of force to defend personal
property is not justifiable if the actor knows that the exclusion of the person
attempting to commit [crime alleged] will expose him/her to substantial danger of serious bodily
harm.
Serious
bodily harm is defined as:
Bodily harm which
creates a substantial risk of death or which causes serious, permanent disfigurement
or protracted loss or impairment of the function of any bodily member or organ
[WHERE APPLICABLE: or which results from aggravated sexual assault or sexual
assault].[12]
[USE OF DEADLY FORCE]
[N.J.S.A. 2C:3-6d(2) provides
that “[t]he use of deadly force in defense of personal property is not
justified unless justified under another provision of this chapter.” If defendant claims that his/her use of
deadly force was justified under any provision of N.J.S.A. 2C:3-3 to
3-8, the jury should be instructed regarding that provision at this point. Also, define "deadly force" as in
the preceding section.]
BURDEN
OF PROOF [ALL CASES]
The burden of proof is upon the
State to prove beyond a reasonable doubt that the use of force by the defendant
was not justified. Thus, if you find
that the State has proven beyond a reasonable doubt that the defendant
committed _________________________ [the crime[s] charged in the indictment]
and has also proven beyond a reasonable doubt that the defendant was not
justified in using force, then your verdict must be guilty. But if you have a reasonable doubt whether his/her use of
force was justified, then your verdict must be not guilty.
[1] N.J.S.A. 2C:3-6(a) and (c) provide that
the justification for the use of force in defense either of premises or
personal property is “subject to the provisions of this section and of section
2C:3-9.” If any issues arise pursuant to
N.J.S.A. 2C:3-9(a) or (c) in a given case, the model jury charges for those subsections should be given after the other
“provisions of this section” are explained but before the jury is instructed on
the burden of proof.
[2] N.J.S.A.
2C:1-14 (j). The definitions of
reckless and negligent states of mind contained in N.J.S.A. 2C: 2-2 (b) (3) and (4) should be included at
this point if they have not been charged previously in connection with the
offense(s) charged.
[9] Ibid. Note, however, that this portion of N.J.S.A.
2C:3-11b is not applicable if a weapon is actually used (e.g., a
brandished firearm is actually fired). State
v. Moore, 158 N.J. 292, 305-308 (1999).
[11] N.J.S.A.
2C:3-6b(3)(c)(ii) and 1-13e; N.J.R.E. 301. Although the provisions of N.J.R.E.
303 apply only to presumptions against the accused in criminal cases,
this portion of the charge avoids the use of the term “presumption” or
“presumed” contained in this subsection.