Officer could not walk onto driveway to look into hole in porch State...

Officer could not walk onto driveway to look into hole in porch State v Ingram 474 N.J. Super. 522 (App. Div. 2023)

 

What to Expect at a Civil Deposition

 The Plaintiff

Personal History: (Anticipate every question in the answers to Interrogatories being posed again!) The following questions are just some of the questions a defense attorney can ask a personal injury plaintiff. We obtained these questions from a list prepared by insurance companies and given to their defense attorneys.

Name in Full
Given Name
Name on Birth Certificate
Ever Used Any Other Name
If Plaintiff Female
Any Name When Married
Previous Names By Marriage
Nicknames or Names by Which Generally Known

Day, Month & Year of Birth
Place of Birth
Ever Given Any Other Day of Birth
If So, Why

Schooling:
What schools attended
What schools graduated
When left such school
Any special training schools
High schools
Special Training in military service

Past Employment:
First job after leaving school
Names, Addresses of employers
If small corporation, who was owner
Is company still in business
Present address
Actual reason for leaving, resigned, discharged
Stated reason to employer for leaving
Ever left employment or changed place of employment for reasons of health
What employer plan or hospitalization if any, what insurance company

Present Employment if not Employee of Defendant:
When first employed
Was any condition of health concealed from present employer or any employer
If so, what and why
Any workmens compensation benefits ever received from present employer
Any hospitalization or medical services furnished by employer or employers or insurance company

Condition of Health Prior to Accident:
Name of Regular Family Doctor
Doctor normally called by plaintiff or members of family when necessary
Present and past addresses of such doctor still in practice
Physical conditions for which treated or examined by such doctor
Any regular physical checkups by such doctor
Physical examination if any by present employer by past employers
Ever hospitalized for any condition of health

Ever X-Rayed:
If so, what hospitals, when, where, what condition of health, period of stay, period of disability from work
Ever have any prior condition of health causing pain in any part of body, when, what part of body
Ever have numbness, tingling, dizziness any trouble with eye sight, hearing, breathing, maintaining balance, and pain in area

Claim History:
Ever have accident/injury for which claim was made by plaintiff or against plaintiff
Ever received any money from any insurance company for claimed personal illness or accident
Any health insurance (even if no claim)
What company at present
Any other companies in the past
Any benefits received from other company

Life Insurance:
Medical examinations for life insurance
When, where, what doctor
Names of companies with which policies >presently held or formerly held
Ever rejected on application for life insurance

Family History:
Married or single
Name of wife, husband
Ever divorced
Names of previous wives, husbands
Former residences
Place where divorce occurred
Present name of previous spouse
Children
Age of children
Residence of children
Children by other marriages
Any dependent children

Drivers License:
What state, when issued
Record number & date of issue
Any restrictions on license
Ever have license suspended
Ever licensed in other states which was suspended or restrictions

Criminal record:
Ever been arrested
Ever jailed
Ever suspended sentence
Ever convicted of felony
Ever placed on probation
Driving license ever suspended for traffic violation for other reasons

Personal Habits:
Use of alcohol
Frequency
Any alcohol on day of accident
Any alcohol within 24 hours before accident

Personal Information:
Ever wear glasses for reading or generally
Where glasses obtained
Reason for wearing glasses
Name of doctor prescribing glasses
Have glasses recently been
changed since accident
Same glasses now as before accident
Why not
Glasses broke in accident
Glasses on person in accident

Previous earning:
Employment at time of accident
Hourly rate of pay
Normal rate of pay
Normal working hours
Overtime
Average yearly earnings
Average monthly earnings presented paid
Average paycheck take home
Previous earnings from other employers
Present rate of pay

If plaintiff not returned to employment:
Rate of pay presently being paid for or a time of accident
Any earnings from second jobs
Any earnings from self-employment
Any past earnings from any source
Any past income from any source

Military Service:
When and where registered for military service
If deferred, for what reason
Classification
Draft Card
Social Security Number
If in service :
serial number
place entered service
place discharged from service
Request authorization to obtain records
Army
Navy
Veterans Bureau
Selected Service records
Any disability payment at present or ever
Date of discharge
Does plaintiff have copy of discharge papers

Ability to read:
Inquire as to schooling
If schooling limited inquire as to ability to read on asking questions about eyesight
Does Plaintiff have any difficulty in reading newspapers, books and letters from friends

THE ACCIDENT/MEDICALS:
Location:
Exact location, if possible
Landmarks
Special objects in vicinity
Is condition of area the same now
What changes
Was condition of area the same on other occasions before accident
Any special condition on day of accident
Familiarity of plaintiff with the area
Prior to accident any different condition noted
How frequently is plaintiff in area

Conditions in area:
Lighting
If artificial lights, were lights on
Any light bulbs missing
Any unusual condition of lighting nor normal
Any obstructions to visibility
Darkness, smoke, haze, clouds, dust, sun in eyes, raining, frosty, dampness, mud, slippery
If wears glasses, was plaintiff wearing glasses at time of accident: sun glasses or goggles.

The Accident
Plaintiffs full story of the accident in narrative form and then in chronological order
After Plaintiff has related inquire into circumstance.
Plaintiffs Oral Statements:
Did plaintiff tell anyone how accident happened immediately after the accident
If so, who, when
Did person informed make any responses as to knowledge of accident, or any comments as to conditions surrounding accident
If another employee involved in accident, any conversation with any employee

Court rules on deposition:
RULE 4:14. DEPOSITIONS UPON ORAL EXAMINATION

4:14-1. When Depositions May Be Taken

Except as otherwise provided by R. 4:14-9(a), after commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 35 days after service of the summons and complaint upon the defendant by any manner, except that leave is not required if the defendant has already served a notice of taking deposition or otherwise sought discovery. The attendance of witnesses may be compelled by subpoena as provided in R. 4:14-7.
The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
Note: Source-R.R. 4:16-1. Former rule deleted and new R. 4:14-1 adopted July 14, 1972 to be effective September 5, 1972 (formerly R. 4:10-1); amended July 21, 1980 to be effective September 8, 1980; amended July 10, 1998 to be effective September 1, 1998; amended July 5, 2000 to be effective September 5, 2000.
4:14-2. Notice of Examination; General Requirements; Deposition of Organization

(a) Notice. Except as otherwise provided by R. 4:14-9(b), a party desiring to take the deposition of any person upon oral examination shall give not less than 10 days notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, which shall be reasonably convenient for all parties, and the name and address of each person to be examined, if known, and, if the name is not known a general description sufficient to identify the person or the particular class or group to which the person belongs. If a defendant fails to appear or answer in any civil action within the time prescribed by these rules, depositions may be taken without notice to that defendant.

(b) Time. The court may for cause shown enlarge or shorten the time for taking the deposition.

(c) Organizations. A party may in the notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth for each person designated the matters on which testimony will be given. The persons so designated shall testify as to matters known or reasonably available to the organization.

(d) Production of Things. The notice to a party deponent may be accompanied by a request made in compliance with and in accordance with the procedure stated in R. 4:18-1 for the production of documents and tangible things at the taking of the deposition.

Note: Source-R.R. 4:20-1. Former rule deleted and new R. 4:14-2 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-1 and 4:14-1); paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994.

4:14-3. Examination and Cross-Examination; Record of Examination; Oath; Objections

(a) Examination and Cross-Examination. Examination and cross-examination of deponents may proceed as permitted in the trial of actions in open court, but the cross-examination need not be limited to the subject matter of the examination in chief.

(b) Oath; Record. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under the officers direction and in the officers presence, record the testimony of the witness. The testimony shall be recorded and transcribed on a typewriter unless the parties agree otherwise.

(c) Objections. No objection shall be made during the taking of a deposition except those addressed to the form of a question or to assert a privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. The right to object on other grounds is preserved and may be asserted at the time the deposition testimony is proffered at trial. An objection to the form of a question shall include a statement by the objector as to why the form is objectionable so as to allow the interrogator to amend the question. No objection shall be expressed in language that suggests an answer to the deponent. Subject to R. 4:14-4, an attorney shall not instruct a witness not to answer a question unless the basis of the objection is privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidential objections to a videotaped deposition of a treating physician or expert witness which is taken for use in lieu of trial testimony shall be made and proceeded upon in accordance with R. 4:14-9(f).

(d) No Adjournment. Except as otherwise provided by R. 4:14-4 and R. 4:23-1(a) all depositions shall be taken continuously and without adjournment unless the court otherwise orders or the parties and the deponent stipulate otherwise.

(e) Written Questions. In lieu of participating in an oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

(f) Consultation With the Deponent. Once the deponent has been sworn, there shall be no communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right toconfidentiality or a limitation pursuant to a previously entered court order.

Note: Source-R.R. 4:16-3, 4:20-3. Paragraphs (b), (d) and (e) amended July 14, 1972 to be effective September 5, 1972 (Paragraph (a) formerly R. 4:10-3); paragraph (c) amended July 21, 1980 to be effective September 8, 1980; paragraphs (b) and (e) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended and paragraph (f) added June 28, 1996 to be effective September 1, 1996.

4:14-4. Motion or Application to Terminate or Limit Examination or for Sanctions

At any time during the taking of the deposition, on formal motion or telephone application to the court of a party or of the deponent and upon a showing that the examination or any part thereof is being conducted or defended in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party, or in violation of R. 4:14-3(c) or (f), the court may order the person conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in R. 4:10-3. If the order made terminates the examination, it shall be resumed thereafter only upon further order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion or telephone application for an order. The provisions of R. 4:23-1(c) shall apply to the award of expenses incurred in making or defending against the motion or telephone application.

Note: Source-R.R. 4:20-4. Amended July 14, 1972 to be effective September 5, 1972; amended June 28, 1996 to be effective September 1, 1996.

4:14-5. Submission to Witness; Changes; Signing

If the officer at the taking of the deposition is a certified shorthand reporter, the witness shall not sign the deposition. If the officer is not a certified shorthand reporter, then unless reading and signing of the deposition are waived by stipulation of the parties, the officer shall request the deponent to appear at a stated time for the purpose of reading and signing it. At that time or at such later time as the officer and witness agree upon, the deposition shall be submitted to the witness for examination and shall be read to or by the witness, and any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness. If the witness fails to appear at the time stated or if the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the witness failure or refusal to sign, together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under R. 4:16-4(d) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

Note: Source-R.R. 4:20-5. Amended July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.

4:14-6. Certification and Filing by Officer; Exhibits; Copies

(a) Certification and Filing. The officer shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony. The officer shall then promptly file with the deputy clerk of the Superior Court in the county of venue a statement captioned in the cause setting forth the date on which the deposition was taken, the name and address of the witness, and the name and address of the reporter from whom a transcript of the deposition may be obtained by payment of the prescribed fee. The reporter shall furnish the party taking the deposition with the original and a copy thereof. Depositions shall not be filed unless the court so orders on its or a partys motion. The original deposition shall, however, be made available to the judge to whom any proceeding in the matter has been assigned for disposition at the time of the hearing or as the judge may otherwise request. Filed depositions shall be returned by the court to the party taking the deposition after the termination of the action. A videotaped deposition shall be sealed and filed in accordance with R. 4:14-9(d).

(b) Documentary Evidence. Documentary evidence exhibited before the officer or exhibits proved or identified by the witness, may be annexed to and returned with the deposition; or the officer shall, if requested by the party producing the documentary evidence or exhibit, mark it as an exhibit in the action, and return it to the party offering the same, and the same shall be received in evidence as if annexed to and returned with the deposition.

(c) Copies. The party taking the deposition shall bear the cost thereof and of promptly furnishing a copy of the transcript to the witness deposed, if an adverse party, and if not, to any adverse party. The copy so furnished shall be made available to all other parties for their inspection and copying. Copies of videotaped depositions shall be made and furnished in accordance with R. 4:14-9(d).

Note: Source-R.R. 4:20-6(a)(b)(c). Paragraph (c) amended July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (c) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended June 28, 1996 to be effective September 1, 1996.

4:14-7. Subpoena for Taking Depositions

(a) Form; Contents; Scope. The attendance of a witness at the taking of depositions may be compelled by subpoena, issued and served as prescribed by R. 1:9 insofar as applicable, and subject to the protective provisions of R. 1:9-2 and R. 4:10-3. The subpoena may command the person to whom it is directed to produce designated books, papers, documents or other objects which constitute or contain evidence relating to all matters within the scope of examination permitted by R. 4:10-2.

(b) Time and Place of Examination by Subpoena; Witness Expenses.

(1) Fact Witnesses. A resident of this State subpoenaed for the taking of a deposition may be required to attend an examination only at a reasonably convenient time and only in the county of this State in which he or she resides, is employed or transacts business in person, or at such other convenient place fixed by court order. A nonresident of this State subpoenaed within this State may be required to attend only at a reasonably convenient time and only in the county in which he or she is served, at a place within this State not more than 40 miles from the place of service, or at such other convenient place fixed by court order. The party subpoenaing a witness, other than one subject to deposition on notice, shall reimburse the witness for the out-of-pocket expenses and loss of pay, if any, incurred in attending at the taking of depositions.

(2) Expert Witnesses and Treating Physicians. If the expert or treating physician resides or works in New Jersey, but the deposition is taken at a place other than the witness residence or place of business, the party taking the deposition shall pay for the witness travel time and expenses, unless otherwise ordered by the court. If the expert or treating physician does not reside or work in New Jersey, the proponent of the witness shall either (A) produce the witness, at the proponents expense, in the county in which the action is pending or at such other place in New Jersey upon which all parties shall agree, or (B) pay all reasonable travel and lodging expenses incurred by all parties in attending the witness out-of-state deposition, unless otherwise ordered by the court.

(c) Notice; Limitations. A subpoena commanding a person to produce evidence for discovery purposes may be issued only to a person whose attendance at a designated time and place for the taking of a deposition is simultaneously compelled. The subpoena shall state that the subpoenaed evidence shall not be produced or released until the date specified for the taking of the deposition and that if the deponent is notified that a motion to quash the subpoena has been filed, the deponent shall not produce or release the subpoenaed evidence until ordered to do so by the court or the release is consented to by all parties to the action. The subpoena shall be simultaneously served no less than 10 days prior to the date therein scheduled on the witness and on all parties, who shall have the right at the taking of the deposition to inspect and copy the subpoenaed evidence produced. If evidence is produced by a subpoenaed witness who does not attend the taking of the deposition, the parties to whom the evidence is so furnished shall forthwith provide notice to all other parties of the receipt thereof and of its specific nature and contents, and shall make it available to all other parties for inspection and copying.

Note: Source-R.R. 4:20-1 (last sentence), 4:46-4(a) (b). Paragraphs (a) and (b) amended July 14, 1972 to be effective September 5, 1972; paragraph (c) adopted November 5, 1986 to be effective January 1, 1987; paragraph (b) recaptioned paragraph (b)(1) and amended, paragraph (b)(2) adopted and paragraph (c) amended July 14, 1992 to be effective September 1, 1992.

4:14-8. Failure to Attend or Serve Subpoena; Expenses

If the party giving notice of the taking of a deposition fails to attend and proceed the rewith and another party attends in person or by attorney pursuant to the notice, or if the party giving the notice fails to serve a subpoena upon a witness who because of such failure does not attend and another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred as a result of attendance either by the attending party or that partys attorney, including reasonable attorneys fees.

Note: Source-R.R. 4:20-7(a)(b). Amended July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.

4:14-9. Videotaped Depositions

Videotaped depositions may be taken and used in accordance with the applicable provisions of these discovery rules subject to the following further requirements and conditions:

(a) Time for Taking Videotaped Depositions. The provisions of R. 4:14-1 shall apply to videotaped depositions except that such a deposition of a treating physician or expert witness which is intended for use in lieu of trial testimony shall not be noticed for taking until 30 days after a written report of that witness has been furnished to all parties. Any party desiring to take a discovery deposition of that witness shall do so within such 30-day period.

(b) Notice. A party intending to videotape a deposition shall serve the notice required by R. 4:14-2(a) not less than 30 days prior to the date therein fixed for the taking of the deposition. The notice shall further state that the deposition is to be videotaped.

(c) Transcript. The videotaping of a deposition shall not be deemed to except it from the general requirement of stenographic recording and typewritten transcript. Prior to the swearing of the witness by the officer, the name, address and firm of the videotape operator shall be stated on the record.

(d) Filing, Sealing, Copies. Immediately following the conclusion of the videotaped deposition, the videotape operator shall deliver the tape to the officer who shall take physical custody thereof for the purpose of arranging for the making of one copy thereof. Upon return to the officer of the original and copy of the tape, the officer shall seal and file the original with the deputy clerk of the Superior Court in the county in which the matter is pending and shall deliver the copy to the party taking the deposition. That party shall then furnish a copy of the tape to an adverse party who shall make it available for copying and inspection to all other parties.

(e) Use. Videotaped depositions may be used at trial in accordance with R. 4:16-1. In addition, a videotaped deposition of a treating physician or expert witness, which has been taken in accordance with these rules, may be used at trial in lieu of testimony whether or not such witness is available to testify and provided further that the party who has taken the deposition has produced the witness for further videotaped deposition necessitated by discovery completed following the original videotaped deposition or for other good cause. Disputes among parties regarding the recall of a treating physician or expert witness shall be resolved by motion, which shall be made as early as practicable before trial. The taking of a videotaped deposition of a treating physician or expert witness shall not preclude the party taking the deposition from producing the witness at trial.

(f) Objections. Where a videotaped deposition of a treating physician or expert witness is taken for use at trial in lieu of testimony, all evidential objections shall, to the extent practicable, be made during the course of the deposition. Each party making such objection shall, within 30 days following the completion of the deposition, file a motion for rulings thereon and all such motions shall be consolidated for hearing. A copy of the tape shall be edited in accordance with said rulings and the copy so edited shall be sealed and filed with the clerk after all parties have had the opportunity to view and copy it.

(g) Cost of Videotaped Depositions. All out-of-pocket expenses incurred in connection with a videotaped deposition, including the making of copies herein required and the editing of tapes, shall be borne, in the first instance, by the party taking the deposition. The cost of court presentation of the deposition shall be borne, in the first instance, by the party offering the deposition.

(h) Record on Appeal. Where a videotaped deposition is used at trial, a typewritten transcript thereof shall be included in the record on appeal. The videotape itself shall not constitute part of the record on appeal except on motion for good cause shown.

Note: Adopted July 21, 1980 to be effective September 8, 1980; paragraph (e) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (d) amended June 28, 1996 to be effective September 1, 1996.

violation of DOMESTIC VIOLENCE Order 2C:29-9b) model jury charge

VIOLATION OF AN ORDER UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT(N.J.S.A. 2C:29-9b)model jury charge The defendant,, is charged with the crime of violating a court order entered under the Prevention of Domestic Violence Act. New Jersey statutes describe this crime as follows: . . . a person is guilty of a crime. . . if that person purposely or knowingly violates [a] provision in an order entered under the provisions of the Prevention of Domestic Violence Act . . . when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.[1] In order for the defendant to be found guilty of this crime, the State has the burden of proving beyond a reasonable doubt the following four elements: 1.There was a court order entered under the provisions of the Prevention of Domestic Violence Act. 2.The defendant knew of the existence of the order. 3.The defendant purposely or knowingly violated a provision of the order. 4.The conduct which constituted the violation could also constitute a crime or a disorderly persons offense. The first element is that there was a court order entered under the provisions of the Prevention of Domestic Violence Act. The second element is that the defendant knew of the existence of the order.I shall shortly define knowingly for you. The third element is that the defendant purposely or knowingly violated a provision of the order. A person acts purposely with respect to the nature ofhis/herconduct or a result thereof if it ishis/herconscious object to engage in conduct of that nature or to cause such a result.A person acts purposely with respect to attendant circumstances ifhe/sheis aware of the existence of such circumstances orhe/shebelieves or hopes that they exist.With purpose, designed, with design or equivalent terms have the same meaning. A person acts knowingly with respect to the nature ofhis/herconduct or the attendant circumstances ifhe/sheis aware thathis/herconduct is of that nature, or that such circumstances exist, orhe/sheis aware of a high probability of their existence.A person acts knowingly with respect to a result ofhis/herconductifhe/sheis aware that it is practically certain thathis/herconduct will cause such a result.Knowing, with knowledge or equivalent terms have the same meaning. It is alleged that defendant violated [state specifics of Order] by the following conduct: [Describe alleged acts.] In order for you to find the defendant guilty of the crime charged, you must find that the defendants conduct could also constitute the crime(s) of ________________________________ orthe disorderly persons offense(s) of___________________________________________. [In cases in which the trials of the violation of domestic violence order charge and of the underlying indictable crime arising out of the same criminal episode have been severed, and are being tried sequentially before the same jury, the following language should be charged if the jury has already found the defendant guilty of either the indictable crime or a lesser included disorderly persons offense.[2](This language, however, should not be charged where defendant affirmatively requests that it not be given[3]). In regard to the fourth element, that defendants conduct also constituted the (crime/disorderly persons) offense of _____________, you must disregard your prior verdict finding defendant guilty of the (crime/disorderly persons offense) of ______________.As with any other element, the States burden is to prove this element beyond a reasonable doubt.In making the determination as to whether the State has met this burden, you may consider the evidence previously presented to you, as well as the courts instructions, pertaining to the (crime/disorderly persons offense) of _______________[4].] [In cases not involving sequential trials, instruct on the elements of the applicable crime(s) and/or disorderly persons offense(s).] If you find that the State has proven the first three elements beyond a reasonable doubt, that is, that there was a court order entered under the provisions of the Prevention of Domestic Violence Act, that the defendant knew of the existence of the order, and thathe/shepurposely or knowingly violated the provision of the order as described, but you are not satisfied beyond a reasonable doubt that the conduct which constituted the violation could also constitute a separate crime or disorderly persons offense, then the defendant must be found guilty of a less serious offense, namely a disorderly persons offense of violating a court order entered under the Prevention of Domestic Violence Act.Thus, you may return one of three possible verdicts on this charge:(1) guilty of the crime of violating a court order entered under the Prevention of Domestic Violence Act, which requires conduct that could also constitute a separate crime or disorderly persons offense, (2) guilty of the disorderly persons offense of violating a court order entered under the Prevention of Domestic Violence Act, which does not require conduct that could also constitute a separate crime or disorderly persons offense, or (3) not guilty. To summarize, if you find that the State has failed to prove each and every one of the first three elements beyond a reasonable doubt, namely that there was a court order entered under the provisions of the Prevention of Domestic Violence Act, that the defendant knew of the existence of the order, and thathe/shepurposely or knowingly violated a provision of the order, you must find the defendant not guilty.If you find that the State has proven all of the first three elements beyond a reasonable doubt, but you are not satisfied beyond a reasonable doubt that the conduct which constituted the violation could also constitute a separate crime or disorderly persons offense, you must find the defendant guilty of the disorderly persons offense of violating an order under the Prevention of Domestic Violence Act.If you find that the State has proven all four elements beyond a reasonable doubt, including the element that the conduct which constituted the violation could also constitute a separate crime or disorderly persons offense, you must find the defendant guilty of the crime of violating an order under the Prevention of Domestic Violence Act. [1]Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) ofN.J.S.A. 2C:25-29(b) shall be excluded from the provisions of this subsection. [2]SeeState V. Chenique-Puey, 145N.J. 334 (1996) andState V. Ragland, 105N.J. 189 (1986). [3]SeeRagland, at 195. [4]The Court may wish to restate the elements of the underlying crime or disorderly persons offense if it is felt that a sufficient time period has elapsed since the jury was given its instructions on that crime or disorderly persons offense.

USE OF FORCE UPON AN INTRUDER model jury charge 2c:3-4

JUSTIFICATIONUSE OF FORCE UPON AN INTRUDER model jury charge(N.J.S.A. 2C:3-4c) The indictment charges that the defendant has committed the crime of . The defendant contends that his/her use of force (or deadly force) upon was justifiable under the circumstances for his/her self-protection (or the protection of others). Under certain conditions, the law allows a person to use force upon another, and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force (or deadly force) upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion. Keep in mind that the State has the burden to prove to you, beyond a reasonable doubt that the force used by the defendant against another person was not justified.[1] If the State fails to sustain this burden, the defendant must be found not guilty of the crime(s) charged. Conversely, this defense should be rejected if the State disproves, beyond a reasonable doubt, any of the elements or conditions which constitute justification. In this case (recite factual contentions which raise the issue of justification). For the force used by the defendant against another to be justified, the following two conditions must exist: 1. The other person (victim) was an intruder who was unlawfully in a dwelling. An intruder is one who is unlawfully in the dwelling--that is, he/she was not licensed or privileged to be in the dwelling. The term dwelling means any building or structure, though movable or temporary, or a portion thereof, which is used as a persons home or place of lodging.[2] 2. The defendant reasonably believed that force (deadly force) was immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion. A reasonable belief exists when a defendant, to protect himself/herself or a third person, was in his/her own dwelling at the time of the offense or was privileged to be thereon, and the encounter between the defendant and intruder was sudden and unexpected, compelling the defendant to act instantly, and the defendant reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling, or the defendant demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so. I instruct you that a reasonable belief is different than an honest belief. What is reasonable is not measured by what a defendant found reasonable but rather by what a jury finds reasonable. Thus, the reasonableness of defendants belief is based on an objective standard--that is, by how an ordinary reasonable person with a detached viewpoint would view it. A subjective belief, based on the viewpoint of the defendant, is immaterial. If the defendant did employ protective force, he/she has the right to estimate the necessity of using force without retreating, surrendering position, withdrawing or doing any other act which he/she has no legal duty to do or abstaining from any lawful action. The State has a burden of proving, beyond a reasonable doubt, that the force used by the defendant against another person was not justified, that is, the State has the burden of proving, beyond a reasonable doubt, that any of the elements or conditions of justification do not exist. If you find that the State has met its burden of proof beyond a reasonable doubt, there is no justification and you will consider whether the State has otherwise sustained its burden of proving, beyond a reasonable doubt, each and every element of the offense of . If the State has not met its burden in this regard on the issue of justification, the defendant must be found not guilty as to the charge of .[3] [1] Although the burden of disproving this defense is upon the State, there must be enough evidence to support this charge--the record must provide a rational basis upon which the jury could find that the defendant acted justifiably. See State v. Martinez, 229 N.J. Super. 593 (App. Div. 1989). [2] A dwelling includes a porch or other similar appurtenance. State v. Martinez, 229 N.J. Super. 583, 604 (App. Div. 1989). [3] Note: If the State has sustained its burden of proof, the jury may, if the facts so warrant, deal with the issue of imperfect self-defense. See State v. Bowens (Leon), 108 N.J. 622, 627-630 (1987).

 

 

USE OF FORCE IN PROTECTION OF OTHERS model jury charge 2c:3-5

JUSTIFICATION ‑ USE OF FORCE

IN PROTECTION OF OTHERS model jury charge(N.J.S.A. 2C:3‑5)

The defendant contends he/she should be found not guilty because he/she acted in defense of a third person. Our statute N.J.S.A. 2C:3‑5 insofar as pertinent to this matter provides:

... the use of force upon or toward that person of another is justifiable to protect a third person when:

(1) The actor would be justified ... in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect and

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and

(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.

You must first determine whether the force used by (defendant) to protect (name), the third person, would have been justified if (defendant) had used such force to protect himself/herself under the guidelines of the law pertaining to self‑defense that I have just given you.

Second, you must determine whether (defendant) reasonably believed that person whom he/she sought to protect would have been justified in using such force in self‑defense. In applying this test you are instructed to disregard any finding that the person in whose behalf (defendant) intervened was in fact the aggressor or that no defensive measures on his/her behalf were actually necessary, but you may consider everything defendant knew when he/she acted, including these same factors if you find that he/she knew them.

Finally, you must determine whether (defendant) reasonably believed these actions were necessary to protect that person.

In making these determinations, keep in mind the following:

When using deadly force to protect a third person, the defendant is not obligated to retreat or to surrender possession of a thing to one claiming a right thereto or to comply with any demands being made of him/her unless he/she knows that by doing so it would secure the complete safety of the third person.

But, if the third person, whom the actor is seeking to protect is under a duty to retreat, then the defendant is obligated to try to cause (him/her) to do so before using force in (his/her) protection if the defendant knows that he/she can obtain complete safety in that way.

Finally, neither the defendant nor the person whom he/she seeks to protect is required to retreat when in the third persons dwelling to any greater extent than in his/her own.

Always remember -- the State has the burden of disproving the defense of protection of a third person beyond a reasonable doubt. Unless the State has convinced you beyond a reasonable doubt that the defendant was not justified, then you must find the defendant not guilty. If, on the other hand, you are convinced beyond a reasonable doubt that the defendant did not have the right to resort to force or deadly force to protect a third person, then this particular defense fails.

USE OF FORCE IN LAW ENFORCEMENT model jury charge 2C:3-7a

USE OF FORCE IN LAW ENFORCEMENT model jury charge(N.J.S.A. 2C:3-7a)

The defendant contends that he/she is not guilty of the crime of because the force he/she used was for the purpose of effecting an arrest.

Our statute N.J.S.A. 2C:3-7a provides in pertinent part:

.....the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor reasonably believes that such force is immediately necessary to effect a lawful arrest.

In determining whether the defendants (name) actions in this case meet the requirements of the statute, you must decide the following issues:

(1) Was defendant making or assisting in making an arrest when he/she used force against the person of another?

(2) Did the defendant (name) reasonably believe that the force he/she used in making or assisting in making the arrest was immediately necessary to make the arrest?

(3) Was the arrest lawful?

To answer these questions you must determine from the evidence of this case whether from the totality of the circumstances the defendants beliefs were reasonable. A reasonable belief is one which a reasonable person of ordinary intelligence and prudence in the position of the defendant would have under the circumstances existing at the time of the alleged offense. Thus, a reasonable belief is one which the ordinary person would have when confronted with the same circumstances with which the defendant was faced in this case. The use of force is not justified by reason of this defense unless a reasonable person would have reacted with the same amount or level of force as used by the defendant herein, operating under the belief that the force was immediately necessary to effect a lawful arrest. If a defendants belief is reasonable, he/she cannot be found to have acted in a reckless or criminally negligent manner.

The fact that defendants belief may have been erroneous does not deprive the defendant of his/her privilege to use force to effect a lawful arrest if you find that a reasonable person would have held the same belief under the circumstances with which the defendant was faced at the time of his/her actions. Therefore, your determination of whether the defendant reasonably believed that the amount of force used was immediately necessary and not excessive under the circumstances must be made from the standpoint of the defendant at the time of his/her acts and not from your viewpoint as jurors now looking at his/her acts.

The statute requires that the force used was necessary to effect a lawful arrest. An arrest, as that term is used in criminal law, signifies the apprehension or detention of the person of another in order that he/she may be forthcoming to answer for an alleged or supposed crime. In order for the arrest to be lawful, there must exist within the arresting officers knowledge facts sufficient to warrant a prudent person in believing that the person arrested had committed or was committing a criminal offense. In other words, there must at least be a well-grounded suspicion that a criminal offense has been or is being committed.

The burden is upon the State to prove beyond a reasonable doubt that the defense of justifiable conduct is untrue, and hence there must be an acquittal if there is a reasonable doubt as to whether the defendant did act justifiably within the definition of that defense as just instructed.

 

Threaten police dog 2C:29-3.1(c) model jury charge NJ

threaten police dog 2C:29-3.1(c) model jury charge THREATENING TO KILL, MAIM OR INFLICT HARM UPON AN ANIMAL USED BY A LAW ENFORCEMENT AGENCY OR A SEARCH AND RESCUE DOG N.J.S.A.2C:29-3.1(c)model jury charge Count _____ of this indictment charges the defendant with the crime of threatening to kill, maim or inflict harm upon an animal owned or used by a law enforcement agency or an animal who is a search and rescue dog. (READ INDICTMENT) The applicable statute provides, in pertinent part, that: Any person who purposely threatens to kill, maim or otherwise inflict harm upon a dog, horse or other animal owned or used by a law enforcement agency or a search and rescue dog, under circumstances reasonably causing the person to whom the threat is made to believe that it is likely to be carried out . . . is guilty of a crime. In order for you to find the defendant guilty, the State must prove the following elements beyond a reasonable doubt: 1.that the defendant purposely threatened to kill, maim or otherwise inflict harm upon an animal; 2.that the dog, horse or other animal was (CHOOSE AS APPROPRIATE)owned or used by a law enforcement agency (OR) a search and rescue dog; 3.that the defendant knew that the dog, horse or other animal was (CHOOSE AS APPROPRIATE) owned or used by a law enforcement agency (OR) a search and rescue dog; and 4.that the threat was made under circumstances causing the person to whom the threat was made to reasonably believe that the threat would likely be carried out. The first element that the State must prove beyond a reasonable doubt is that the defendant purposely threatened to kill, maim, or otherwise inflict harm upon a dog, horse or other animal. A person acts purposely with respect to the nature ofhis/herconduct or a result thereof if it ishis/herconscious object to engage in conduct of that nature or to cause such a result.A person acts purposely with respect to attendant circumstances ifhe/shehopes that they exist.A person acts purposely ifhe/sheacts with design, with a specific intent, with a particular object or purpose, ifhe/shemeans to do whathe/shedoes. Purpose is a condition of the mind that cannot be seen and that can be determined only 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 that the State produce witnesses to testify that a defendant said thathe/shehad a certain state of mind whenhe/sheengaged 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 defendants acts and conduct, from all thathe/shesaid and did at the particular time and place, and from all surrounding circumstances. The second element that the State must prove beyond a reasonable doubt is that the dog, horse or other animal was (CHOOSE AS APPROPRIATE)owned or used by a law enforcement agency (OR) a search and rescue dog.(CHOOSE AS APPROPRIATE).A law enforcement agency is a department, division, bureau, commission, board or other authority of the State or of any political subdivision thereof which employs law enforcement officers.[1]A law enforcement officer is a person whose public duties include the power to act as an officer for the detection, apprehension, arrest and conviction of offenders against the laws of this State.[2]The term search and rescue dog means any dog trained or being trained for the purpose of search and rescue that is owned by an independent handler or member of a search and rescue team, and used in conjunction with local law enforcement or emergency services organizations for the purpose of locating missing persons or evidence of arson.[3] The third element that the State must prove beyond a reasonable doubt is that the defendant knew that the dog, horse or other animal was (CHOOSE AS APPROPRIATE)owned or used by a law enforcement agency (OR) a search and rescue dog. A person acts knowingly with respect to the nature ofhis/herconduct or the attendant circumstances ifhe/sheis aware thathis/herconduct is of that nature or that such circumstances exist or ifhe/sheis aware of a high probability of their existence.A person acts knowingly with respect to the result ofhis/herconduct ifhe/sheis aware that it is practically certain thathis/herconduct will cause such a result.Knowing, with knowledge, or equivalent terms have the same meaning. Like purpose, knowledge is a condition of the mindthat cannot be seen and that can be determined only 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 that the State produce witnesses to testify that a defendant said thathe/shehad a certain state of mind whenhe/sheengaged 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 defendants acts and conduct, from all thathe/shesaid and did at the particular time and place, and from all surrounding circumstances. The fourth element that the State must prove beyond a reasonable doubt is that the threat was made under circumstances causing the person to whom the threat was made to reasonably believe that the threat would likely be carried out.[4] If you find that the State has proven each element of this 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]N.J.S.A.2C:25-19b. [2]N.J.S.A.2C:25-19c [3]N.J.S.A.2C:29-3.1. [4]Although no caselaw addresses the standard in connection with this statute, there is similarly-worded language contained in the Terroristic Threats (Threat to Kill) statute,N.J.S.A.2C:12-3(b)).The language in that statute has been interpreted to mean that the threat must be such that it would reasonably convey a fear to an ordinary person.

THEFT OF SERVICES (N.J.S.A. 2C:20-8b) model jury charge NJ

THEFT OF SERVICES (N.J.S.A. 2C:20-8b) model jury charge THEFT OF SERVICES (N.J.S.A. 2C:20-8b)model jury charge The defendant is charged with theft of services in violation ofN.J.S.A. 2C:20-8b. That section of our statute reads in pertinent part: A person commits theft if, having control over the disposition of services of another, to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled hereto. The State must prove, beyond a reasonable doubt, each of the following elements of the crime: (1)that defendant had control over the disposition of the services; (2)that defendant was not entitled to the services (nor was the recipient if other than defendant); (3)that defendant diverted services of another to his/her own benefit or to the benefit of another; and (4)that defendant did so knowingly. The first element that the State must prove beyond a reasonable doubt is that the defendant had control over the disposition of the services. Services include labor, professional service, transportation, telephone (including using, selling, or possessing a computer to deprive a telephone company of its charges), or other public service, accommodations in hotels, restaurants or elsewhere, entertainment, admission to exhibitions, use of vehicles or other movable property. The second element that the State must prove beyond a reasonable doubt is that the defendant was not entitled to the services (nor was the recipient of the services, if other than the defendant). The third element that the State must prove beyond a reasonable doubt is that the defendant diverted services of another to his/her own benefit or to the benefit of another. The fourth element that the State must prove beyond a reasonable doubt is that the defendant did so knowingly. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances 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 such a result. One is said to act knowingly if one acts with knowledge, if one acts consciously, if he/she comprehends his/her acts. 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 the defendant 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 inferences[1]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 the defendant knowingly diverted the services in question it does not matter whether he/she diverted them to his/her own benefit or to the benefit of another person who was not entitled to the services. If you find that the State has failed to prove any one of these elements beyond a reasonable doubt, then you must find the defendant not guilty. If, however, you find that the State has proved each element beyond a reasonable doubt, then you must find defendant guilty of theft of services. (If affirmative defense of Claim of Right is raised, charge here. (N.J.S.A. 2C:20-2(c)) (If applicable, charge here on Gradation of Theft Offenses. (N.J.S.A. 2C:20-2(b)) [1]SeeN.J.S.A. 2C:20-8l for inferences that may be applicable. [CHARGE WHERE APPROPRIATE] An inference is a deduction of fact that may be drawn logically and reasonably from another fact or group or facts established by the evidence. Whether or not an inference should be drawn is for you to decide using your own common sense, knowledge and everyday experience. Ask yourselves is it probable, logical and reasonable. However, you are never required or compelled to draw an inference. You alone decide whether the facts and circumstances shown by the evidence support an inference and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it in connection with all the other evidence in the case keeping in mind that the burden of proof is upon the State to prove all the elements of the crime beyond a reasonable doubt.

THEFT OF SERVICES (N.J.S.A. 2C:20‑8a) model jury charge NJ

THEFT OF SERVICES (N.J.S.A. 2C:20‑8a) model jury charge THEFT OF SERVICES(N.J.S.A. 2C:20-8a)model jury charge The defendant is charged with committing the offense of theft of services. That section of our statute reads in pertinent part: A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means, including but not limited to mechanical or electronic devices or through fraudulent statements, to avoid payment for the service. The State must prove, beyond a reasonable doubt, each of the following elements of the crime: (1)that defendant purposely obtained a service; (2)that defendant knew the services were available only for compensation; (3)that defendant obtained the services by deception (or threat, or by a falsetoken, etc.); (4)that defendants purpose was to avoid payment. The first element that the State must prove beyond a reasonable doubt is that the defendant purposely obtained a service. Obtain means to secure the performance of the service, whether for ones own benefit or for the benefit of another. 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 the existenceof such circumstances or he/she believes or hopes that they exist. The second element that the State must prove beyond a reasonable doubt is that the defendant knew the services were available only for compensation. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances 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 such a result. One is said to act knowingly if one acts with knowledge, if one acts consciously, if he/she comprehends his/her acts. Purpose and knowledge are conditions 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 the defendant 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 inferences 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. Services include labor, professional service, transportation, telephone (including using, selling, or possessing a computer to deprive a telephone company of its charges), or other public service, accommodation in hotels, restaurants or elsewhere, entertainment, admissions to exhibitions and use of vehicles or other movable property. The third element that the State must prove beyond a reasonable doubt is that the defendant obtained the services by deception. A person deceives if he/she purposely creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a persons intention to perform a promise shall not be inferred from the fact alone that he/she did not subsequently perform the promise.[1]A person also deceives when he/she prevents another from acquiring information which would affect ( his/her ) judgment of a transaction; or fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows tobe influencing another to whom he/she stands in a fiduciary or confidential relationship.[2] Threat means a communicated intent to inflict physical or other harm on any person or on property.[3] By a false token means a false document or sign of the existence of a fact, in general, used for the purposes of fraud. It is a device used to obtain money by false pretenses.[4]For example, the use of a slug is use by a false token. A slug is an object or article which by virtue of its size, shape, or any other quality is capable of being inserted or deposited in a coin, currency, or credit card activated machine as an improper substitute for money.[5] The fourth element that the State must prove beyond a reasonable doubt is that the defendants purpose was to avoid payment. [CHARGE WHERE APPROPRIATE] Where compensation for service is ordinarily paid immediately upon the rendering of such service, as, for example, in hotels or restaurants, where a person absconds without payment or offer to pay, you may infer that absconding without payment or offer to pay gives rise to an inference that service was obtained by deception as to intention to pay.[6] An inference is a deduction of fact that may be drawn logically and reasonably from another fact or group or facts established by the evidence. Whether or not an inference should be drawn is for you to decide using your own common sense, knowledge and everyday experience. Ask yourselves is it probable, logical and reasonable. However, you are never required or compelled to draw an inference. You alone decide whether the facts and circumstances shown by the evidence support an inference and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it in connection with all the other evidence in the case keeping in mind that the burden of proof is upon the State to prove all the elements of the crime beyond a reasonable doubt.[7] [CHARGE IN ALL CASES] In conclusion: If you find that the State has failed to prove any one of the elements beyond a reasonable doubt, then you must find the defendant not guilty. However, if the State has proven each element beyond a reasonable doubt, then you must find the defendant guilty of theft services. (If affirmative defense of claim of right is raised, charge here. (N.J.S.A. 2C:20-2(c)) (If applicable, charge here on Gradation of Theft Offenses. (N.J.S.A. 2C:20-2(b)) [1]N.J.S.A. 2C:20-4a. [2]N.J.S.A. 2C:20-4b and c. [3]Blacks Law Dictionary, 6th ed. [4]Blacks Law Dictionary, 6th ed. [5]N.J.S.A. 2C:21-18. [6]N.J.S.A. 2C:20-8a. [7]SeeN.J.S.A. 2C:20-8l for other inferences that may be applicable.

THEFT OF MOVABLE PROPERTY2C:20-3a) model jury charge NJ

THEFT OF MOVABLE PROPERTY2C:20-3a) model jury charge THEFT OF MOVABLE PROPERTY(N.J.S.A.2C:20-3a)model jury charge[Count ____ of T]he Indictment charges defendant with theft by unlawful taking or disposition of movable property.The indictment reads as follows:[read the appropriate portion of the indictment]. The statute upon which the indictment is based provides in pertinent part that: A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof. The State must prove each of the following elements beyond a reasonable doubt: (1)that defendant knowingly took or unlawfully exercised control over movable property; (2)that the movable property was property of another; (3)that defendants purpose was to deprive the other person of the movable property. The first element which the State must prove beyond a reasonable doubt is that defendant knowingly took or exercised unlawful control over movable property.Property means anything of value, including [select appropriate phrases: tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.[1]] Movable property means property the location of which can be changed, including things growing on, affixed to, or found in land, or documents, although the rights represented thereby have no physical location.[2]For comparison purposes, immovable property is all other property.[3] Defendant must knowingly take or exercise unlawful control over movable property.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.Knowing, with knowledge, or equivalent terms have the same meaning.Knowingly is a state of mind and cannot be seen and can only be determined by inference from conduct, words or acts.Therefore, it is not necessary that witnesses be produced by the State to testify that a defendant said that he/she knowingly did something. his/her knowledge may be gathered from his/her acts and his/her conduct and from all he/she said and did at the particular time and place and from all the surrounding circumstances reflected in the testimony [and evidence adduced at trial]. In this case, the State alleges that the movable property taken, or over which control was unlawfully exercised, is the following:[describe property listed in the indictment].[Read if appropriate:It should be noted that the definition of movable property is broad, including the kind of property which has no real location.[4]]The State need not prove that the property was carried out of the place in which it was kept, but only that it was moved or taken from its original location or that defendant exercised unlawful control over it, whether or not he/she was able to actually move or remove the property. [Read the Supplemental Charge on Theft if appropriate] The second element that the State must prove beyond a reasonable doubt is that the movable property is property of another.[Choose appropriate language:Property of another includes property in which any person other than the defendant has an interest which the defendant is not privileged to infringe, regardless of the fact that the defendant also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband.[5]Property in the possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.[6]]The term property of another is broadly defined so as to include services and intangibles, anything of value.[7]Anything of value is defined as any direct or indirect gain or advantage to any person.[8] The third element which the State must prove beyond a reasonable doubt is that defendants purpose was to deprive the other person of the movable property.For the purpose of this statute, the term deprive specifically means:(1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it. 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 believes or hopes that they exist.A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does. Purpose is a condition of the mind that cannot be seen and that can be determined only 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 that the State produce witnesses to testify that an accused said that 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 defendants acts and conduct, from all that he/she said and did at the particular time and place, and from all surrounding circumstances. If you find that the State has proven all three elements beyond a reasonable doubt, then you must find defendant guilty.If you find that the State has failed to prove any of the elements beyond a reasonable doubt, then you must find defendant not guilty. Since the value of the movable property [or specific type of property] determines the degree or severity of the crime, the State must prove its value beyond a reasonable doubt [or the movable property taken beyond a reasonable doubt].If you find defendant guilty, then you must indicate the value of the property (or whether the movable property is a specifically enumerated item). [Read to the jury the gradation theft offenses charge,N.J.S.A.2C:20-2b]. [1]N.J.S.A. 2C:20-1g. [2]N.J.S.A.2C:20-1e. [3]Ibid. [4]For example, stock certificates. [5]N.J.S.A.2C:20-1h. [6]Ibid. [7]State v. Dixon, 114N.J.111 (1989). [8]N.J.S.A.2C:20-1n. FOR POTENTIAL CLIENTS TO CONTACT US DURING NON-BUSINESS HOURS, PLEASE FILL OUT THE FORM. Name: Cell Phone: E-Mail Address If You Do Not Include a Complete E-Mail Address, Network will not Forward Your Contact Form to the Law Office. 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THEFT OF IMMOVABLE PROPERTY 2C:20-3b) model jury charge NJ

THEFT OF IMMOVABLE PROPERTY 2C:20-3b) model jury charge THEFT OF IMMOVABLE PROPERTY (N.J.S.A. 2C:20-3b)model jury charge [Count _____ of the Indictment charges defendant with theft by unlawful taking or disposition of immovable property.The indictment reads as follows: [Read the appropriate portion of the indictment]. The statute upon which the indictment is based provides in pertinent part that: A person is guilty of theft if he unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto. In order to obtain a conviction, the State must prove each of the following elements beyond a reasonable doubt: (1)that defendant unlawfully transferred any interest in immovable property; (2)that defendant knew that the transfer was unlawful; (3)that defendant knew the immovable property was property of another; (4)that defendants purpose was to benefithimself/herselfor another not entitled thereto. The first element which the State must prove beyond a reasonable doubt is that defendant unlawfully transferred any interest in immovable property.Property means anything of value, including [select appropriate phrases] real estate, tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.[1] In order for me to explain to you what immovable property is, I must first define what movable property is.Movable property means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location.[2]Immovable property is all other property.[3] [Charge where appropriate] Additionally, in order to distinguish between movable and immovable property, theft under this section of the statute is limited to an unlawful transfer of interest in such immovable property. The second element the State must prove beyond a reasonable doubt is that defendant knew that the transfer was unlawful.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.Knowing, with knowledge, or equivalent terms have the same meaning.Knowingly is a state of mind and cannot be seen and can only be determined by inference from conduct, words or acts.Therefore, it is not necessary that witnesses be produced by the State to testify that a defendant said that he/she knowingly did something. his/her knowledge may be gathered from his/her acts and his/her conduct and from all he/she said and did at the particular time and place and from all the surrounding circumstances reflected in the testimony [and evidence adduced at trial]. In this case, the State alleges that the interest transferred in immovable property is as follows [describe interest as listed in the indictment and developed at the trial].[Read if appropriate:Mere use of land of another without permission, even illegal, destructive use, does not deprive the owner of the property and is not a crime under this section of the Code of Criminal Justice.][4] The third element that the State must prove beyond a reasonable doubt is that defendant knew that the immovable property was property of another.Property of another includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband.[5]Property in the possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contact or other security agreement.[6]The terms property and property of another are broadly defined so as to include services and intangibles, anything of value.[7]Anything of value is defined as any direct or indirect gain or advantage to any person.[8] The fourth element which the State must prove beyond a reasonable doubt is that defendants purpose in his/her unlawful transfer was to benefithimself/herselfor another not entitled thereto. 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 believes or hopes that they exist.A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does. Purpose is a condition of the mind that cannot be seen and that can be determined only 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 that the State produce witnesses to testify that an accused said that 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 defendants acts and conduct, from all that he/she said and did at the particular time and place, and from all surrounding circumstances. If you find that the State has proven all four elements beyond a reasonable doubt, then you must find defendant guilty.If you find that the State has failed to prove any of the elements beyond a reasonable doubt, then you must find defendant not guilty. Since the value of the immovable property [or specific type of property] determines the degree or severity of the crime, the State must prove its value beyond a reasonable doubt [or the immovable property taken beyond a reasonable doubt].If you find defendant guilty, then you must indicate the value of the property (or whether the movable property is a specifically enumerated item).[Read to the jury the Gradation of Theft Offenses charge,N.J.S.A.2C:20-2b]. [1]N.J.S.A.2C:20-1g. [2]N.J.S.A.2C:20-1e. [3]Ibid. [4]State v. Garofola, 252N.J. Super.356 (Law Div. 1988). [5]N.J.S.A.2C:20-1h. [6]Ibid. [7]State v. Dixon, 114N.J.111 (1989). [8]N.J.S.A.2C:20-1n.

THEFT FROM THE PERSON 2C:20-2b(2)(d) model jury charge NJ

THEFT FROM THE PERSON 2C:20-2b(2)(d) model jury charge THEFT FROM THE PERSON N.J.S.A. 2C:20-2b(2)(d)model jury charge Count _____ of the indictment charges defendant with theft from the person. (READ INDICTMENT) The statute upon which this count of the indictment is based states in pertinent part: A person is guilty of theft if he unlawfully takes, or exercises control over movable property of another with purpose to deprive him thereof. In order for you to find defendant guilty of this offense, the State must prove the following elements beyond a reasonable doubt: 1.That the defendant knowingly took or unlawfully exercised control over movable property; 2.That the movable property was property of another; 3.That the movable property was taken from the person of another; and 4.That defendants purpose was to deprive the other person of the movable property. The first element the State must prove beyond a reasonable doubt is that defendant knowingly took or exercised unlawful control over movable property.Movable property means property the location of which can be changed, including things growing on, affixed to, or found in land, or documents, although the rights represented thereby have no physical location. 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.Knowingly, with knowledge, or equivalent terms have the same meaning. In this case, the State alleges that the movable property taken or over which control was unlawfully exercised was (describe property).The State need not prove that the property was carried out of the place in which it was kept, but only that it was moved or taken from its original location or that defendant exercised unlawful control over it.[1] 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 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. The second element that the State must prove beyond a reasonable doubt is that the movable property is property of another.Property of another includes [choose appropriate]property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband.Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.[2] The term property of another is broadly defined so as to include services and intangibles, anything of value.[3]Anything of value is defined as any direct or indirect gain or advantage to any person.[4] The third element that the State must prove beyond a reasonable doubt is that the property was taken from the person of another.That is, the State must prove that at the time of the theft, the property stolen was within the immediate custody and control of another. The fourth element that the State must prove beyond a reasonable doubt is that defendants purpose was to deprive the other person of the movable property.Deprive means to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value or with purpose to restore only upon payment of reward or other compensation or to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it. 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 the individual is aware of the existence of such circumstances or the individual 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.A condition of the mind cannot be seen.It can only be determined by inference from defendants 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. If you find that the State has proven every element beyond a reasonable doubt, then you must find defendant guilty of theft from the person.If you find that the State has failed to prove any of the elements beyond a reasonable doubt, then you must find defendant not guilty. [1]State v. Link, 197N.J. Super. 615, 619 (App. Div.),certif. denied, 101N.J. 234 (1985). [2]N.J.S.A. 2C:20-1h. [3]State v. Dixon, 114N.J. 111 (1989). [4]N.J.S.A. 2C:20-1n.

THEFT BY FAILURE 2C:20-9 model jury charge NJ

THEFT BY FAILURE 2C:20-9 model jury charge THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF PROPERTY RECEIVED (N.J.S.A. 2C:20-9)model jury charge The indictment charges the defendant with the offense of theft by failure to make required disposition of property received.That section of our statute reads in pertinent part: A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payments or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition. In order to find the defendant guilty of this theft offense, the State must prove each of the following elements beyond a reasonable doubt: (1)That the defendant purposely obtained or retained the property; (2)That the defendant did so upon agreement, or subject to legal obligation; (3)That this agreement or legal obligation required the defendant to make specified payment or other disposition from the property itself or its proceeds, or from his/her own property to be reserved in equivalent amount; (4)That this legal obligation was known to the defendant; (5)That the defendant purposely dealt with the property as if it were his/her own; and (6)That the defendant purposely failed to make the required payment or disposition. (Charge the following only if applicable to the facts of the case) Any payment made with a subsequently dishonored negotiable instrument, for example, a bad check, shall constitute evidence of the actors failure to make the required payment or disposition.You may infer therefrom that the actor did not intend to make the required payment or other disposition. OR If you find that the defendant is an officer or employee of the government or of any financial institution then you may infer; (a)That he/she had knowledge of his/her legal obligation to make the specified payment or other disposition.And (b)If you find that he/she failed to pay or account upon lawful demand or if an audit revealed a shortage or falsification of accounts then you may infer that he/she dealt with the property as his/her own. However, you are never required or compelled to draw an inference.It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inferences and you are always free to accept or reject them if you wish. CONTINUE WITH THE CHARGE With respect to some of the words used in defining the elements, I instruct you as follows: The word obtain means to bring about a transfer or purported transfer of a legal interest in the property, either to the defendanthimself/herselfor another person. 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 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. 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, knowing, With knowledge or equivalent terms have the same meaning. The word Property is defined as anything of value including tangible or intangible personal property. I further instruct you that the foregoing applies even though it may be impossible to identify particular property as belonging to the victim at the time the defendant allegedly failed to make the required payment or disposition because the victims property may have been mixed with or joined with other property. If after a review of all the evidence you find that the State has failed to prove any one of the elements of this offense beyond a reasonable doubt, then you must find the defendant not guilty of the charge. If you find that the State has proved all of the elements above beyond a reasonable doubt.Then you must find the defendant guilty of the charge.