NJ Laws Directions to Ken Vercammen and Associates Ken Vercammens Resume Ken Vercammen articles

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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))

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 victims 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 defendants 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

Page 3 of 6

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 defendants 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

Page 5 of 6

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


kenv
Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means:
YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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