AGGRAVATED ARSON, N.J.S.A. 2C:17-1a (SECOND DEGREE), model jury charge

 AGGRAVATED ARSON, N.J.S.A. 2C:17-1a (SECOND DEGREE), model jury charge

AND, 

IF APPROPRIATE, N.J.S.A. 2C:17-1e 

Count _____________ of the indictment charges the defendant with aggravated arson in violation of a statute which provides as follows: 

A person is guilty of aggravated arson . . . if he starts a fire or causes an explosion, whether on his own property or another’s: 

[READ ONLY THE APPLICABLE SECTION(S)] 

(1) Thereby purposely or knowingly placing another person in 

danger of death or bodily injury; or 

(2) With the purpose of destroying a building or structure of another; or 

(3) With the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury; or 

(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment under circumstances which recklessly place any other person in danger of death or bodily injury; or 

(5) With the purpose of destroying or damaging any forest. 

In order for the defendant to be found guilty of aggravated arson, the State must prove the following elements beyond a reasonable doubt: 

(1) that the defendant purposely [started a fire] [caused an explosion] on his/her own property or another’s; 

(2) that the act of starting the fire (causing the explosion) 

[SELECT APPROPRIATE ELEMENT OR ELEMENTS] 

(a) purposely or knowingly placed another person in danger of death or bodily 

Page 1 of 6 AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1e Page 2 of 6 

injury; 

(b) was done with the purpose of destroying a building or structure of another; 

(c) was done with the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly placed any other person in danger of death or bodily injury; 

(d) was done with the purpose of destroying or damaging a structure in order to exempt that structure, completely or partially, from the effect of certain legal regulation, under circumstances which recklessly placed any other person in danger of death or bodily injury; 

(e) was done with the purpose of destroying or damaging any forest. 

The first element that the State must prove beyond a reasonable doubt is: 

(1) That the defendant purposely [started a fire] [caused an explosion] at or near 

premises known as [describe the property].1 

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 cause such a result. A person acts purposely with respect to attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist. “With purpose,” “designed,” “with design,” or equivalent terms have the same meaning. Purpose is a condition of the mind that cannot be seen and can only be determined by inferences drawn from the defendant’s conduct, words or acts. It is not necessary for the State to prove the existence of such a mental state by direct evidence such as a statement by the defendant that he/she had a particular purpose. It is within the power of the jury to find that the proof of purpose has been furnished beyond a reasonable doubt by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct of the defendant as they have been presented in the evidence you have heard and seen in this case. 

1 If causation is in issue, charge N.J.S.A. 2C:2-3. AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1e Page 3 of 6 

2 See Commentary to New Jersey Penal Code, Vol. II, p. 205; State v. Schenck, 100 N.J. Super. 162 (App. Div. 1968). 

3 The act of lighting a match, by itself, is insufficient evidence that defendant purposely started a fire. State in the Interest of M.N., 267 N.J. Super. 482 (App. Div. 1993). 

4 See Commentary to New Jersey Penal Code, Vol. II, p. 205; State v. Schenck, 100 N.J. Super. 162 (App. Div. 1968). 

5 To convict of this crime, the jurors need not be unanimous in their finding that the described conduct was committed "purposely" or "knowingly." Some jurors could find the conduct to have been purposeful, while others find it to be knowing. See State v. Bey, 129 N.J. 557, 581-82 (1992). 

6 See N.J.S.A. 2C:11-1a. 

It is not necessary that any significant damage be done.2 It is only necessary that [a fire be started]3 [an explosion be caused] for one or more of the purposes to be described. The lack of success of the perpetrator is immaterial.4 

(2) The second element the State must prove beyond a reasonable doubt is that at the time the defendant [started the fire] [ caused the explosion], 

[SELECT APPROPRIATE SECTION(S)] 

he/she purposely or knowingly5 placed another person in danger of death or bodily injury. “Bodily injury” means physical pain, illness or any impairment of physical condition.6 I have already defined the term "purposely" for you. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their existence. A person acts knowingly with respect to a result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. Knowledge is a condition of the mind that cannot be seen and can only be determined by inferences drawn from the defendant’s conduct, words or acts. It is not necessary for the State to prove the existence of such a mental state by direct evidence such as a statement by the defendant that he had particular knowledge. It is within the power of the jury to find that the proof of knowledge has been furnished beyond a reasonable doubt by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct of the defendant as they have been presented in the evidence you have heard and seen in this case; AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1e Page 4 of 6 

7 "[U]nless a different meaning plainly is required, 'structure' means any building, room, ship, vessel, car, vehicle or airplane, and also means any place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present." N.J.S.A. 2C:18-1; N.J.S.A. 2C:17-1f. "Property is that of another. . .if any one other than the actor has a possessory, or legal or equitable proprietary interest therein. Property is that of another. . .if anyone other than the actor has a legal or equitable interest in the property including, but not limited to, a mortgage, pledge, lien or security interest therein. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another." N.J.S.A. 2C:17-1f. 

8 See N.J.S.A. 2C:11-1a. 

9 See N.J.S.A. 2C:2-2b(3). 

OR 

his/her purpose was to destroy [describe the building or structure of another]. Destroy means: to demolish and/or to render useless and/or to render completely ineffective for its intended use. [If in issue, define "structure" and/or "of another."]7 I have already defined the term "purposely" for you; 

OR 

his/her purpose was to collect insurance for the destruction or damage to such property. I have already defined the term "purposely" for you; and 

(3) That the defendant acted under circumstances which recklessly placed any other person in danger of death or bodily injury. "Bodily injury" means physical pain, illness or any impairment of physical condition.8 A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk. 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 person, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.9

OR 

his/her purpose was to destroy or damage a structure in order to exempt the structure, completely or partially, from the provisions of any [State] [county] [local] [zoning] [planning] [building] [law] [regulation] [ordinance] [enactment]. In this case, the State alleges that the [law] [regulation] [ordinance] [enactment] from which the defendant intended to exempt the structure was the following: [read the specific provision]. I have already defined the term "purposely" for AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1e Page 5 of 6 

10 See N.J.S.A. 2C:11-1a. 

11 See N.J.S.A. 2C:2-2b(3). 

12 See N.J.S.A. 2C:17-1f. 

13 In many cases, it may be necessary to charge arson as a lesser included offense. 

you; and 

(3) That the defendant acted under circumstances which recklessly placed any other person in danger of death or bodily injury. "Bodily injury" means physical pain, illness or any impairment of physical condition.10 A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk. 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 person, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.11

OR 

his/her purpose was to destroy or damage any forest. I have already defined the term "purposely" for you. 

A "forest" means and includes any forest, brush land, grass land, salt marsh, wooded area and any combination thereof, including but not limited to, an open space area, public lands, wetlands, park lands, natural habitats, a State conservation area, a wildlife refuge area or any other designated undeveloped open space whether or not it is subject to specific protection under law.12 In this case, the State alleges that it was defendant's conscious object to destroy or damage [describe the forest]. 

If the State has failed to prove any of the elements as I have described them to you beyond a reasonable doubt, you must find the defendant not guilty of aggravated arson.13 If the State has proven every element beyond a reasonable doubt, you must find the defendant guilty of the crime of aggravated arson. 

[CHARGE IF APPROPRIATE] 

This count of the indictment also alleges that the structure which was the target of the AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1e Page 6 of 6 

14 As used here, "health care facility" means health care facility as defined in section 2 of P.L. 1971, c. 136 (C.26:2H-2). N.J.S.A. 2C:17-1f. 

15 If the defendant is convicted of aggravated arson, and the target of his crime was a health care facility or a physician's office, the sentence imposed shall include a term of imprisonment, not subject to suspension or other noncustodial disposition. N.J.S.A. 2C:17-1e. 

16 "Target" is not defined in the statute. "Target" is defined in the American Heritage Dictionary of the English Language (3rd ed.) as, inter alia, "[s]omething aimed or fired at." 

17 Use "destroy" if the aggravated arson is charged under N.J.S.A. 2C:17-1a(2). 

18 Use "destroy or damage" if the aggravated arson is charged under N.J.S.A. 2C:17-1a(3) or N.J.S.A. 2C:17-1a(4). 

offense was [a health care facility]14 [a physician's office], specifically: [describe the charged premises]15 If you find that the State has proven each of the elements I have previously described, then you must determine whether it has also proven, beyond a reasonable doubt, that the target of the offense was [a health care facility][a physician's office]. 

In order for you to determine that the [health care facility][physician's office] was the "target"16 of the aggravated arson, the State must prove beyond a reasonable doubt that it was the defendant's purpose to [destroy]17 [destroy or damage]18 a [health care facility] [physician's office]. I have already defined "purposely" for you. 

If you find that the State has failed to prove this additional element beyond a reasonable doubt, but has proven beyond a reasonable doubt that the defendant has committed aggravated arson, then you must find the defendant not guilty of aggravated arson of a [physician's office] [health care facility], but guilty of aggravated arson. On the other hand, if you find that the State has proven beyond a reasonable doubt all of the elements of aggravated arson and this additional element, then you must find the defendant guilty of aggravated arson of a [physician's office] [health care facility]. Finally, if you find that the State has failed to prove any of the elements of aggravated arson beyond a reasonable doubt, then you must find the defendant not guilty. 

KIDNAPPING (N.J.S.A. 2C:13-1b(1) to (3)) model jury charge

KIDNAPPING (N.J.S.A. 2C:13-1b(1) to (3)) Model Jury Charge

The defendant is charged with the crime of kidnapping. The indictment reads in pertinent part as follows:

(Read Indictment)

The pertinent part of the statute on which this indictment is based reads as follows:

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

1. to facilitate commission of any crime or flight thereafter;

2. to inflict bodily injury on or to terrorize the victim or another; or

3. to interfere with the performance of any governmental or political function.

In order for you to find the defendant guilty of kidnapping, the State is required to prove each of the following two elements to you beyond a reasonable doubt:

(Select as appropriate)

1. That the defendant __________: a. unlawfully removed __________, from (his/her) place of residence... or b. unlawfully removed __________, from (his/her) place of business... or c. unlawfully removed __________, a substantial distance from the vicinity where (he/she) was found... or d. unlawfully confined __________, for a substantial period;

(and) (Select as appropriate)

2. That the removal (or confinement) was with the purpose to... a. facilitate the commission of any crime or flight thereafter... b. inflict bodily injury on or terrorize the victim or another... c. interfere with the performance of any governmental or political function.

Page 1 of 6

Revised 4/16/12

KIDNAPPING (N.J.S.A. 2C:13-1b(1) to (3))

In relation to the first element you will note that I have used the term(s) "unlawfully

removed" and/or "unlawfully confined".

(IF THE PERSON ALLEGED TO HAVE BEEN REMOVED OR CONFINED IS 14 YEARS OF AGE OR OLDER, AND NOT INCOMPETENT USE THE FOLLOWING)

A removal (or confinement) is "unlawful" if it is accomplished by force, threat or deception.1

(IF THE PERSON REMOVED OR CONFINED IS UNDER THE AGE OF 14 OR INCOMPETENT, USE THE FOLLOWING)

In the case of a person who is under the age of 14 or who is incompetent, a removal (or confinement) is "unlawful" if it is accomplished without the consent of a parent, guardian, or other person responsible for the general supervision of (his/her) welfare.2

(CHARGE AS APPROPRIATE)

When the removal of a victim is from a place other than the victim's residence or place of business, the removal must be to another place which is a "substantial distance" from the vicinity from which the victim was removed. However, for this purpose a "substantial distance" is not measured in feet, yards, or miles, nor by any other standard of linear measurement. Rather, a "substantial distance" is one that is significant, in that it is more than incidental to the underlying crime and substantially increases the risk of harm to the victim. That increased risk of harm must not be trivial. If the victim is removed only a slight distance from the vicinity from which he or she was removed and such movement does not create the isolation and increased risk of harm that are at the heart of the kidnapping statute, then you should not convict the defendant of the kidnapping charge.3

Unlawful confinement must be for a "substantial period." However, for this purpose a "substantial period" is not measured in seconds, minutes or hours, nor by any other standard based strictly on the passage of time. Rather, a "substantial period" is one that is significant, in that it is

1 2 3

N.J.S.A. 2C:13-1d Id. State v. Masino, 94 N.J. 436, 447 (1983).

Page 2 of 6

KIDNAPPING (N.J.S.A. 2C:13-1b(1) to (3))

more than incidental to the underlying crime and substantially increases the risk of harm to the victim. That increased risk of harm must not be trivial. If the victim is confined for only a slight period of time and such confinement does not create the isolation and increased risk of harm that are at the heart of the kidnapping statute, then you should not convict the defendant of the kidnapping charge.4

Therefore, in determining whether the removal (and/or confinement) was substantial, you may consider5

(1) the distance of the removal (and/or the duration of confinement); (2) whether the removal (and/or confinement) occurred during the commission of a separate offense; (3) whether the removal (and/or confinement) which occurred is inherent in the separate offense; and (4) whether the removal (and/or confinement) created a significant danger to the victim independent of that posed by the separate offense. The second element that the State is required to prove is:

that the removal (and/or confinement) was with the purpose to ... a. facilitate the commission of any crime or flight thereafter... or b. inflict bodily injury on or terrorize the victim or another... or c. interfere with the performance of any governmental or political function.

I have told you that to constitute kidnapping, an unlawful removal or confinement must have been with a specified purpose. Therefore, I must define purpose for you.

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,

4

State v. Smith, 210 N.J. Super. 43, 60-61 (App. Div. 1986), certif. denied, 105 N.J. 582 (1986). State v. Deutsch, 229 N.J.

Super. 374, 383, 387 (App. Div. 1988). Cf. State v. Bryant, 217 N.J. Super. 72, 80-82 (App. Div. 1987) certif. denied, 108 N.J. 202

(1987); State v. LaFrance, 117 N.J. 583, 594 (1990).

5

In State v. LaFrance, 117 N.J. 583 (1990) the court suggested that "future trials should reflect that we have emphasized that the charge to the jury convey the elements of the crime in the factual context of the case. Court and counsel should frame a charge to the jury in which defendant's conduct is measured in terms of whether the detention was merely incidental to the underlying crimes". State v. LaFrance at 594. The enumerated factors should only be charged if relevant, and the trial judge may charge other factors

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KIDNAPPING (N.J.S.A. 2C:13-1b(1) to (3))

that is, if the person means to do what he/she does or to cause such a result. A person acts purposely with respect to attendant circumstances if the person is aware of the existence of such circumstances, or believes or hopes that they exist. "With purpose," "designed," "with design," or equivalent terms have the same meaning.6

The nature of the purpose with which the defendant acted towards the victim is a question of fact for the jury to decide. Purpose is a condition of the mind which cannot be seen, and can only be determined by inferences drawn from the defendant's conduct, words or acts as they have been presented in the evidence you have heard and seen in this case. It is not necessary that the State produce a witness or witnesses to testify that the defendant stated, for example, that his/her purpose in removing __________ (and/or) confining __________, was

(Select appropriate section)

...to facilitate the commission of any crime or flight thereafter, that is, to aid in committing a crime or fleeing afterwards.

...to inflict bodily injury on or to terrorize the victim or another. ...to interfere with the performance of any governmental or political function. It is within the power of the jury to find that proof of purpose has been furnished beyond a

reasonable doubt, by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct under investigation as they have been presented in the evidence you have heard and seen in this case.

[CHARGE WHEN FIRST DEGREE KIDNAPPING ALLEGED]

If you find that the State has proven beyond a reasonable doubt that the defendant committed the crime of kidnapping, you must go on to determine whether the State has also proven beyond a reasonable doubt that he/she knowingly harmed _________ or knowingly did not release _________ in a safe place prior to his/her apprehension.7 The "harm" component can include physical,

where appropriate.

6 7

N.J.S.A. 2C:2-2b(1). State v. Sherman, 367 N.J. Super. 324, 330-331 (App. Div. 2004), certif. denied, 180 N.J. 356 (2004).

Page 4 of 6

KIDNAPPING (N.J.S.A. 2C:13-1b(1) to (3))

emotional or psychological harm.8 In this case, the State alleges that defendant [describe conduct allegedly constituting harm9 or release in an unsafe place]. [INCLUDE WHEN APPROPRIATE: On the other hand, defendant contends that ___________.]

In order to determine whether the victim was released in a safe place, you must examine the totality of the circumstances and evaluate the evidence presented at trial in its entirety. You may consider the following:

age of the victim and any other physical or mental condition of the victim; 10 the location, the conditions of the area, and the time of the release; the circumstances surrounding the release; and any other circumstances that occurred or existed surrounding the release.

(1) (2) (3) (4) A person acts knowingly with respect to the nature of his/her conduct or the attendant

circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their existence. A person acts knowingly with respect to a result of his/her conduct if he/she is aware that it is practically certain that his conduct will cause such a result. "Knowingly," "with knowledge," or equivalent terms have the same meaning.

Knowledge is a condition 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 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

8 9

Sherman, 367 N.J. Super. at 331.

"We conclude that the 'harm" component of the unharmed release provision contained in N.J.S.A. 2C:13-1c[1] focuses on

the conduct of the kidnapper during the purposeful removal and holding or confining of the victim, as distinguished from the type of

harm inherent in every kidnapping." Sherman, 367 N.J. Super. at 330. The "harm" component can include "physical, emotional or

psychological harm." Id. at 331.

10

In State v. Johnson, 309 N.J. Super. 237, 265 (App. Div.), certif. den. 156 N.J. 387 (1998), the defendant carjacked a mother and her three-year-old daughter, then put the daughter out of the car before driving off with and subsequently robbing, raping, and killing the mother. The Appellate Division held that the jury properly found “that separating an upset, crying three year old child from

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KIDNAPPING (N.J.S.A. 2C:13-1b(1) to (3))

conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

[CHARGE IN ALL CASES]

If you find that the State has not proven any element of the crime of kidnapping beyond a reasonable doubt, then you must find the defendant not guilty. If you find that the State has proven every element beyond a reasonable doubt, then you must find defendant guilty of kidnapping.

[CHARGE WHEN FIRST DEGREE KIDNAPPING IS ALLEGED]

If you find that the State has proven beyond a reasonable doubt that the defendant is guilty of kidnapping, but you have reasonable doubt as to whether the State has proven beyond a reasonable doubt that he/she knowingly harmed _________ or knowingly did not release ________ in a safe place prior to his/her apprehension you should then find the defendant guilty of kidnapping in the second degree.

If you find beyond a reasonable doubt that the defendant is guilty of kidnapping and that he/she knowingly harmed _________ or knowingly did not release _________ in a safe place prior to his/her apprehension, you should then find the defendant guilty of kidnapping in the first degree.

her distraught mother and leaving her near the bushes of a closed day care center after 9 p.m. on a rainy November night hardly constitutes leaving her in a ‘safe place.’”

Page 6 of 6

EVIDENCE OF MENTAL DISEASE OR DEFECT (N.J.S.A. 2C:4-2) model jury charge

EVIDENCE OF MENTAL DISEASE OR DEFECT[1]

(N.J.S.A. 2C:4-2)

            There is an issue which pertains to each and every one of the offenses on which I am about to instruct you (OR which pertains to the following offenses:  [List Offenses to Which Defense Applies])]  Evidence alleging that the defendant suffered from a mental disease or defect (OR: [Insert Specific Mental Disease or Defect Alleged])  has been produced.

(CHARGE IF APPLICABLE: Also, evidence that the defendant suffered from insanity has been produced, as will explain to you shortly.[2] 

In considering the State’s burden of proof, which is to prove every element of the charged offense(s) beyond a reasonable doubt, you must consider and weigh all of the evidence of defendant’s mental state, including that offered as evidence of mental disease or defect [OR insanity] [OR: [Insert Specific Mental Disease or Defect Alleged]], in determining whether or not the State has proven beyond a reasonable doubt:

that [Insert Defendant’s Name] acted [purposely/knowingly/recklessly], which is (are) (an) element(s) of [Insert Specific Offenses to Which Defense Applies].

(OR that {Insert Defendant’s Name} acted with the requisite state of mind forming any element of the offenses charged in the indictment). 

            In making this decision, you must give the defendant the benefit of any reasonable doubt about whether his/her mental functioning was such as to render him/her incapable of acting with the required state of mind, or about whether he/she did in fact act with the required state of mind.[3]   In other words, you must determine whether, despite the evidence of mental disease or defect [or insanity], the State has proven beyond a reasonable doubt that the defendant acted [purposely/knowingly/recklessly].[4]

            If, after considering all the evidence, including the evidence of mental disease or defect (or insanity) (OR:[Insert Specific Mental Disease or Defect Alleged]) or any other evidence or lack of evidence in the case, you have a reasonable doubt whether the defendant’s mental functioning was such as to render him/her incapable of acting with the required state of mind, or if you have a reasonable doubt whether he/she did in fact act with the required state of mind, then the defendant is not guilty (CHARGE IF APPLICABLE: and go on to consider the crime of            ).

If, however, you find that the State has proven beyond a reasonable doubt that [Insert Defendant’s Name] was able to, and did, in fact, have the required criminal state of mind (OR: act [purposely/knowingly/recklessly]), together with all the other elements of the offense beyond a reasonable doubt, then you must find the defendant guilty.[5]

---

[1]           This defense is potentially applicable to any offense not involving strict liability, and may result in either complete acquittal or reduction to a less culpable mental state, depending on the facts. State v. Moore, 113 N.J. 239, 281 (1988); State v. Breakiron, 108 N.J. 591, 608-10 (1987); State v. Ramseur, 106 N.J. 123, 269 (1987); State v. Juinta, 224 N.J. Super. 711 (App. Div. 1988); State v. Washington, 223 N.J. Super. 367 (App. Div. 1988). All mental deficiencies, including conditions that cause a loss of emotional control, may satisfy the diminished capacity defense if they can, and the record supports an inference that they in fact did, affect the defendant’s cognitive capacity. State v. Galloway, 133 N.J. 631, 647 (1993).

[2]           State v. Delibero, 149 N.J. 90, 106 (1997), holds that courts should instruct jurors to consider all evidence of a defendant’s mental state, including that offered as evidence of both diminished capacity and insanity, in deciding whether the State has proven every element of the offense beyond a reasonable doubt.

[3]           State v. Galloway, 133 N.J. at 643, 647.

[4]           State v. Zola, 112 N.J. 384, 402 (1988).

[5]           State v. Harris, 141 N.J. 525, 554 (1995).