VIOLATION OF A CONDITION OF PAROLE SUPERVISION FOR
LIFE
FOURTH DEGREE
(N.J.S.A.
2C:43-6.4(d))
The
indictment charges the defendant with the offense of violating a condition of a Special Sentence of Parole Supervision for
Life:
(Read pertinent count of the indictment)
The
statute on which this charge is based provides that an actor is guilty of the
offense of Violation of a Condition of Parole Supervision for Life if, without
good cause, he/she knowingly violates a condition of a special sentence of Parole
Supervision for Law which had been imposed upon him/her.[2]
In
order for you to find the defendant guilty of violating a condition of a
special sentence of Parole Supervision for Life, you must find that the State
has proved beyond a reasonable doubt the following elements:
(1)
that the
defendant was subject to conditions imposed upon him/her by a special
sentence of Parole Supervision for Life, as imposed by law;
(2)
that the
defendant knowingly violated a condition imposed on him/her as a result
of a special sentence of Parole Supervision for Life;
(3)
that the
defendant did not have good cause to violate the alleged condition.
Here the State alleges that the defendant
knowingly violated the following condition(s): (INSERT ALLEGATIONS MADE BY
STATE. IF REQUESTED, SUMMARIZE
DEFENDANT’S FACTUAL CONTENTIONS, AS WELL).
The first element that the State must prove beyond a
reasonable doubt is that the defendant was subject to conditions imposed upon him/her by a special
sentence of Parole Supervision for Life, as imposed by law.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant knowingly violated a condition imposed upon him/her as a result
of a special sentence as imposed by
law.[3]
(CHARGE IN
ALL CASES)
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 the
conduct will cause a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning. Knowledge is a condition of the mind. It cannot be seen. It can only be determined
by inference from defendant’s 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 that the State
produce witnesses to testify that an accused said that he/she had a certain
state of mind when he/she did a
particular thing. 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
conduct and from all he/she said and did
at the particular time and place and from all surrounding circumstances
established by the evidence.
A condition imposed on a defendant by the special
sentence of Parole Supervision for Life include:
(SELECT
APPROPRIATE SECTION(S))[4]
(A) a
requirement that the defendant obey all laws and ordinances.[5]
(B) a requirement that defendant will not own
or possess any firearm as defined in N.J.S.A. 2C:39-1(f) or any other
weapon enumerated in N.J.S.A. 2C:39-1(r).[6]
(C) a requirement that the defendant refrain
from the use, possession or distribution of a controlled dangerous substance,
controlled substance analog or imitation controlled dangerous substance as
defined in N.J.S.A. 2C:35-2 and N.J.S.A. 2C:35-11,[7] or
any paraphernalia related to such substances except as prescribed by a
physician.[8]
(D) a requirement that the defendant obtain
permission from his parole officer for any change in his residence.
(E) a requirement that the defendant report
at reasonable intervals to an assigned parole officer.
(F) a requirement that the defendant make
full or partial restitution, and the defendant refused or failed to make a good
faith effort to make such payment(s). [9]
(G) a requirement the defendant have no
contact with the victim, which special condition may include, but need not be
limited to, restraining the defendant from entering the victim's residence,
place of employment, business or school, and from harassing or stalking the
victim or victim's relatives in any way,
or refrain from any contact (verbal, written or through a third party)
with the victim(s) of the offense unless contact is authorized by the assigned
parole officer; [10]
(H) a requirement that the defendant shall not
own or possess an animal for an unlawful purpose or to interfere in the
performance of duties by a parole officer.
(I) a requirement that the defendant make specified fine payments
to the State Parole Board or the Juvenile Justice Commission. For violation of such conditions, or for
violation of a special condition requiring restitution, parole may be revoked
only for refusal or failure to make a good faith effort to make such payment.
(J) a requirement that the defendant pay any
fines imposed as a condition of his sentence, and the defendant refused or
failed to make a good faith effort to make such payment(s).[11]
(K) a requirement that the defendant appear
before a designated review board for consideration of an adjustment to the
defendant’s parole status.[12]
(L) any other requirement imposed by the
Division of Parole of the State Parole Board appropriate to protect the public
and to foster rehabilitation, which may include the following conditions that
the defendant:
1.
Obey
all laws and ordinances;
2.
Report
to the assigned parole officer as instructed;
3.
Notify
the assigned parole officer immediately after any arrest, after being served
with or receiving a complaint or summons and after accepting any pre-trial
release including bail;
4.
Notify
the assigned parole officer immediately upon the issuance by the appropriate
court, pursuant to the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 et. seq., or under the
provisions of a similar Federal or state statute, of an order granting
emergency relief, a temporary or final restraining order or an order establishing
conditions of release or bail in a criminal matter or offense arising out of a
domestic violence situation, and comply with any condition established within
the respective order until the order is dissolved by the appropriate court or
until a condition is modified or discharged by the appropriate court;
5.
Reside
at a residence approved by the assigned parole officer;
6.
Obtain
the permission of the assigned parole officer prior to any change of residence;
7.
Obtain
the permission of the assigned parole officer prior to leaving the state of the
approved residence for any purpose;
8.
Refrain
from the purchase, use, possession, distribution or administration of any
narcotic or controlled dangerous substance, controlled dangerous substance
analog, imitation controlled dangerous substance or any paraphernalia related
to such substances except as prescribed by a physician;
9.
Cooperate
in any medical and/or psychological examination or tests as directed by the
assigned parole officer;
10.
Participate
in and successfully complete an appropriate community or residential counseling
or treatment program as directed by the assigned parole officer;
12.
Obtain
the permission of the assigned parole officer prior to securing, accepting or
engaging in any employment, business or volunteer activity and prior to a
change of employment;
13.
Notify
the assigned parole officer immediately of any change in employment status;
14.
Comply
with any curfew established by the assigned parole officer;
15.
Refrain
from behavior which results in the issuance of a final restraining order
pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17
et. seq., or under the provisions of a similar Federal or state statute;
16.
Refrain
from operating a motor vehicle without a valid driver's license;
17.
Refrain
from any contact (written or otherwise) with any group, club, association or
organization that engages in, promotes or encourages illegal or sexually deviant
behavior;
18.
Submit
to a search conducted by a parole officer, without a warrant, of the
defendant's person, place of residence, vehicle or other real or personal
property within the defendant's control at any time a parole officer has a
reasonable, articulable basis to believe that the search will produce
contraband or evidence that a condition of supervision has been violated, is
being violated or is about to be violated and permit the confiscation of any
contraband;
20.
Refrain
from using any computer and/or device to create any social networking profile
or to access any social networking service or chat room in the defendant's name
or any other name for any reason unless expressly authorized by the district
parole supervisor.
(M) (CHARGE
IF DEFENDANT WAS ON PAROLE SUPERVISION FOR LIFE AND CONDITION ALLEGED INVOLVES
CONTACT WITH A PERSON UNDER THE AGE OF EIGHTEEN)
If the victim(s) of an offense specified
in (a) above was a minor, meaning under the age of 18, a defendant serving a
special sentence of parole supervision for life shall or refrain from
initiating, establishing or maintaining contact with any minor and/or refrain
from attempting to initiate, establish or maintain contact with any minor,
except (SELECT APPROPRIATE) a) when the
minor is engaged in a lawful commercial or business activity, the defendant may
engage in the lawful commercial or business activity, provided the activity
takes place in an area open to the public view;
b) when the minor is in the physical presence of his or her parent or
legal guardian (the defendant may not be the parent or legal guardian); c) when
the defendant is present in a public area, as long as the defendant is not
associating with a minor, and the public area is not one frequented mainly or
exclusively by minors; d) when the appropriate court may authorize contact with
a minor; or e) when the district parole supervisor or designated representative
may authorize the defendant to have contact with a minor.[13]
21. Refrain from residing with any minor
without the prior approval of the district parole supervisor or designated
representative.
(N) (CHARGE THE FOLLOWING IF
IT IS ALLEGED THE VIOLATION RELATES TO THE COMMISSION OF NEW CRIME WHILE ON
PAROLE):
The
State alleges the defendant was convicted of a crime committed while on parole
or adjudication of delinquency for an act which, if committed by an adult,
would constitute a crime. The facts
surrounding the underlying conviction may not be relitigated in the context of
this case. You may only consider whether the State has proven whether the fact
of the conviction exists, and whether the defendant was the person so
convicted.[14]
(O) (CHARGE
THE FOLLOWING IF A VIOLATION OF A CONDITION RELATING TO INTERNET ACCESS IS
ALLEGED):
The State alleges the defendant knowingly failed to comply with Internet Access conditions as set forth in N.J.S.A. 2C:43-6.4(f), to wit:
The State alleges the defendant knowingly failed to comply with Internet Access conditions as set forth in N.J.S.A. 2C:43-6.4(f), to wit:
(SELECT AS APPROPRIATE)
(1)
that
the defendant violated a condition that prohibited him/her
from accessing or using a computer or any other device with Internet capability
without the prior written approval of the Superior Court judge and the State
has proven such use was not in connection with the defendant’s employment or
search for employment as approved by the defendant’s parole officer;
(2)
that
the defendant refused to submit to periodic unannounced examinations of the
person's defendant’s computer or any other device with Internet capability by a
parole officer, law enforcement officer or assigned computer or information
technology specialist, including the retrieval and copying of all data from the
computer or device and any internal or external peripherals and removal of such
information, equipment or device to conduct a more thorough inspection;
(3)
that
the defendant failed to submit to the installation on the his/her computer or device with Internet
capability, at the person's expense, one or more hardware or software systems
to monitor his/her
Internet use;
(4)
that
the defendant failed to comply or submit to any other appropriate restrictions
concerning the person's use or access of a computer or any other device with
Internet capability.[15]
(CHARGE IF
APPLICABLE)
The
Special Sentence of Parole Supervision for Life commences immediately upon the
release of a defendant from incarceration.[16]
(RESUMPTION
OF MAIN CHARGE)
The
third element the State must prove beyond a reasonable doubt is that the
defendant did not have good cause for the violation.
Good
cause is defined as a substantial reason that affords
a legal excuse for the failure to abide by the condition.[17]
If
you find that the State has failed to prove any of the elements of the offense
beyond a reasonable doubt, then you must find the defendant not guilty.
If
you find that the State has proved each and every element of the offense beyond
a reasonable doubt, then you must find the defendant guilty.
[1] For any offense committed on or after January 14,
2004, a special sentence of Parole Supervision for Life can be imposed pursuant to the terms of N.J.S.A.
2C:43-6.4 for certain enumerated sexual offenses. For offenses committed from October 31, 1994
to January 13, 2004 (inclusive), a defendant would be subject to a special
sentence of Community Supervision for Life. See P.L. 1994, c.
130, sec. 2.
[2] N.J.S.A. 2C:43-6.4(d).
[3] It
may be necessary to conduct a bifurcated trial if the defendant is
simultaneously charged with a substantive offense that is being alleged
to act as one of the predicate offenses that form the basis of criminal
liability under the Violation of the Special Sentence of Parole Supervision for
Life statute. See State
v. Ragland, 105 N.J. 189, 193-194 (1986) (The charge of Certain Persons
Previously Convicted of a Crime Not to Possess a Weapon, N.J.S.A.
2C:39-7, to be bifurcated from any substantive weapons possessions charge); State
v. Chenique-Puey, 145 N.J. 334, 343 (1996) (Bifurcated trial ordered
when charges of contempt of a domestic-violence restraining order and an
underlying criminal offense arise from the same criminal episode).
If a bifurcated trial is appropriate, it should be
conducted before the same jury and the charges tried sequentially. See Ragland, supra, 105 N.J. at 195; Chenique-Puey,
supra, 145 N.J. at 343. A unitary trial might still be
appropriate if the Violation of Parole Supervision for Life charge was being
tried alone. See State
v. Brown, 180 N.J. 572 (2004).
[4] See N.J.S.A. 2C:43-6.4(b) and citations to the
Parole Supervision provisions cited therein.
See Generally, N.J.S.A. 30:4-123.59(b)(1) and N.J.A.C.
10A:71-6.12.
[5] N.J.S.A.
30:4-123-59(b)(1) and N.J.A.C. 10A:71-6.12(d)(1).
[6] The
jury should be instructed as to the appropriate statutory definition(s) as
warranted by the facts.
[7] The
jury should be instructed as to the appropriate statutory definition(s) as
warranted by the facts.
[8] N.J.A.C.
10A:71-6.12(d)(10).
[9] N.J.S.A.
2C:43-3 and N.J.S.A. 30:4-123.59(g).
[10] N.J.S.A.
30:4-123-59(b)(1) and N.J.A.C. 10A:71-6.12(d)(16).
[11] N.J.S.A.
2C:43-3 and N.J.S.A. 30:4-123.59(g).
[12] N.J.S.A.
30:4-123.61(a).
[13] N.J.A.C 10A:71-6.12(f).
[14] White
v. N.J. Jersey State Parole Bd., 136 N.J.Super. 360 (App. Div.
1975).
[15] This
condition regarding limiting Internet access would apply to only those
convictions which arise from a date of offense that occurred after February 25,
2008. See P.L. 2007, c.
219.
[16] N.J.S.A.
2C:43-6.4(b).
[17] The
statute does not define good cause. It
has been noted that “it is impossible to lay down a universal definition
of good cause for disclosure and
inspection, or an all-inclusive and definitive catalogue of all of the
circumstances to be considered by a court in determining whether there is good
cause.” Ullmann v. Hartford Fire Ins. Co., 87 N.J.Super.
409, 414 (App. Div. 1965). Since the
statute does not define good cause, the definition in this Model Jury Charge is
adapted from the term’s use in cases involving the opening of a default which
would appear to be analogous to the conduct being proscribed by the alleged
crime as it relates to a party’s actions as opposed to the attorney’s
actions. See Nemeth v. Otis Elevator
Co., 55 N.J. Super. 493, 497 (App. Div. 1959)( “Whenever the words ‘good cause’ appear in statutes or rules relating to the opening of
defaults they mean (in the absence of other modifying or controlling words) a
substantial reason that affords legal excuse for the default.” ). See also
R. 4:43.3.
However, the Committee notes that
the term good cause is used in other contexts in statutes and the Court
Rules. See, e.g.,
R. 1:13-7(a) (reinstatement after dismissal for lack of
prosecution); R. 1:40-6(d)
(removal from mediation); R.
3:10-2(d)(Time of making certain jurisdictional motions); R.
3:13-3(g)(Protective Orders regarding discovery in criminal matters); R. 4:10-3 (protective orders); R.
4:21A-4(f) (relief from orders entered based on failure to appear for
arbitration).
