(N.J.S.A.
2C:28-6(1)) model jury charge
Count of the indictment charges the defendant as
follows:
(READ
INDICTMENT)
The Statute upon which this charge
is based reads as follows:
A person commits a crime
. . . if, believing that an official proceeding or investigation is pending or
is about to be instituted, he: (1) Alters, destroys, conceals or removes any
article, object, record, document or thing of physical substance with purpose
to impair its verity or availability in such proceeding or investigation.
The elements that the State must
prove beyond a reasonable doubt to establish the defendant’s guilt on this
count are as follows:
(1) that the defendant believed that an
official proceeding or investigation was pending
or about to be instituted;
(2) that
the defendant purposely (choose appropriate conduct) altered, destroyed,
concealed or removed an (choose relevant object) article, object, record,
document or thing of physical substance;
(3) that
the defendant’s purpose in (choose appropriate conduct) altering,
destroying, concealing, or removing the (choose relevant object) was to
impair its verity or availability in the proceeding or investigation.
The first element that the State
must prove beyond a reasonable doubt is that the defendant must have believed
that an official proceeding or investigation was pending or about to be
instituted. An official proceeding[1] means a proceeding heard, or which may be
heard, before any legislative, judicial, administrative or other governmental
agency, arbitration proceeding, or other official authorized to take evidence
under oath, including any arbitrator, referee, hearing examiner, commissioner,
notary, or other person taking testimony or deposition in connection with any
such proceeding.
The second and third elements that
the State must prove beyond a reasonable doubt are that the defendant purposely
(choose appropriate conduct) altered, destroyed, concealed or removed[2] the (choose
relevant object) article, object, record, document, or thing of physical
substance in order to impair its verity or availability in the official
proceeding or investigation. Verity means truthfulness or accuracy. A person
acts purposely with respect to the nature of his/her
conduct or a result thereof 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 attendant circumstances if he/she is aware of such circumstances or if (he/she) believes or hopes that they exist or if he/she means to act in a certain way or to cause
a certain result.
The defendant’s belief and purpose
are conditions of the mind which can not 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 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.
If you find that the State has
proven all of the elements of this offense beyond a reasonable doubt, then you
must find the defendant guilty.
If you find that the State has
failed to prove one or more of the elements beyond a reasonable doubt, then
your verdict must be not guilty.
[2] Note
that in State v. Sharpless, 314 N.J. Super. 440 (App. Div. 1998)
the Court held that the phrase “concealment of any article with the purpose to
impair its availability” in N.J.S.A. 2C:28-6 refers only to evidence of
a completed criminal act, not a current possessory crime. Caution must be
exercised when giving this instruction in connection with an indictment that
also charges possession of the tampered evidence.