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RESISTING ARREST -FLIGHT NOT ALLEGED 2C:29-2a) jury charge

RESISTING ARREST - FLIGHT NOT ALLEGED

(N.J.S.A. 2C:29-2a)model jury charge

[Countof T]he indictment charges the defendant with committing the crime of resisting arrest by [using or threatening to use force or physical violence against] AND/OR [using any (other) means to create a substantial risk of causing physical injury to ________].The indictment reads as follows:

(Read Indictment)

The statute on which this charge is based reads as follows:

A person is guilty of an offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest . . . [and uses or threatens to use physical force or violence against the law enforcement officer or another] AND/OR [uses any (other) means to create a substantial risk of causing physical injury to the public servant or another].[1]

In order to convict the defendant of this charge, the State first must prove beyond a reasonable doubt that defendant committed the basic offense[2]of resisting arrest.The four elements of that offense are:

1.Thatwas a law enforcement officer.

2.Thatwas effecting an arrest.

3.That defendant knew or had reason to know thatwas a law enforcement officer effecting an arrest.

4.That defendant purposely prevented or attempted to preventfrom effecting the arrest.

The first element that the State must prove beyond a reasonable doubt is thatwas alaw enforcement officer.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.[3]

The second element that the State must prove beyond a reasonable doubt is that _____ was effecting an arrest. It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided (he/she) was acting under color of (his/her) official authority and provided the law enforcement officer announces (his/her) intention to arrest prior to the resistance.[4]

The third element that the State must prove beyond a reasonable doubt is that the defendant knew or had reason to know thatwas a law enforcement officer effecting an arrest.[5]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/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.[6]

The fourth element that the State must prove beyond a reasonable doubt is that defendant purposely prevented or attempted to preventfrom effecting the arrest.A person acts purposely with respect to the nature ofhis/herconduct or a result ofhis/herconduct if it ishis/herconscious object to engage in conduct of that nature or to cause such a result.That is, a person acts purposely ifhe/shemeans to act in a certain way or to cause a certain 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.[7]

Purpose and knowledge are conditions of the mind which cannot be seen and can only be determined by inference 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 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 ofhis/heracts andhis/herconduct, and from allhe/shesaid and did at the particular time and place, and from all the surrounding circumstances.

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 you find that the State has proven the basic offense of resisting arrest beyond a reasonable doubt, you must continue your deliberations to consider the offense charged in the indictment, which is the most serious form of the crime of resisting arrest: namely,

[CHOOSE APPROPRIATE ALTERNATIVE]

whether the State has proven beyond a reasonable doubt that, in resisting arrest, the defendant used or threatened to use physical force or violence against a law enforcement officer or another.[8]Another against whom physical force or violence is used or threatened does not include defendanthimself/herself.[9]Physical force means the exercise of strength or power against the victim.That force need not entail pain or bodily harm and need not leave any mark.[10]Physical violence means dynamic power showing great strength, power, intensity, fury, and destructiveness.[11]

[OR]

whether the State has proven beyond a reasonable doubt that, in resisting arrest, the defendant used any (other) means to create a substantial risk of causing physical injury to apublic servant or another.[12]Another against whom any (other) means of creating a substantial risk of causing physical injury is used does not include defendanthimself/herself.[13]Physical Injury means physical pain, illness, or any impairment of physical condition.[14]A substantial risk is one that is of such a nature and degree that, considering the nature and purpose of the defendants conduct and the circumstances known tohim/her, its disregard involves a gross deviation from the standard of conduct that a reasonable-person would observe in the defendants situation.In other words, the State must prove beyond a reasonable doubt that defendant knew that it was very likely thathis/herconduct would create a risk of causing physical injury to, but thathe/shewent aheadanyway, where a reasonable person would not.I have already defined knowing for you.

If you find that the State has proven beyond a reasonable doubt all five elements of the offense then you must find the defendant guilty of resisting arrest by [choose applicable provision(s) ofN.J.S.A. 2C:29-2a(3)], the offense charged in the indictment, the most serious form of the crime of resisting arrest.If the State has failed to prove the fifth element beyond a reasonable doubt, you must find the defendant guilty of the basic offense of resisting arrest.[15]



[1]N.J.S.A. 2C:29-2a(1) and (3).

[2]InState v. Simms, 369N.J. Super. 466, 472 (App. Div. 2004), the Court reversed a conviction for third degree resisting arrest because, although the jury was told which elements had to be found in order for defendant to be guilty of some crime, that is, resisting, resisting by flight, or resisting by physical force, it was not made aware of the significance of its findings in terms of the seriousness, i.e., the grading, of the offense.It should have been clearly apprised of that consequence of its various findings.This language, however, appears to depart from numerous appellate decisions holding that juries should not be instructed as to the sentencing consequences of their decisions in order not to distract them from their essential fact-finding function.Since this portion ofSimmswas intended to provide the context that we consider defendants plain-error argument that the jury should have been charged on self-defense (id. at 472), the Committee has decided not to specify the degree of each form of resisting arrest in this model charge.Rather, in describing the various elements of the offense, as well as in the final paragraphs that describe the various verdicts that the jury can arrive at, the charge uses the terms basic offense (disorderly persons resisting), more serious offense (fourth degree resisting with flight), and the most serious offense charged in the indictment, which is the most serious form of the crime (third degree resisting pursuant toN.J.S.A.2C: 29-2a(1)(a) or (b)).

[3]SeeN.J.S.A.2C:25-19c.

[4]Where the issue arises, the jury should also be instructed that the State must prove beyond a reasonable doubt that the law enforcement officer was, in fact, acting under color of law and did announce (his/her) intention to arrest.SeeState v. Kane, 303N.J. Super. 167, 181-182 (App. Div. 1997).

[5]State v. Parsons, 270N.J. Super. 213, 222 (App. Div. 1994).

[6]N.J.S.A. 2C:2-2b(2).

[7]N.J.S.A. 2C:2-2b(1).

[8]N.J.S.A. 2C:29-2a(3)(a).

[9]State v. Bunch, 180N.J. 534, 546 (2004).

[10]State v. Brannon, 178N.J. 500, 504 and 510 (2004).

[11]Id. at 510.

[12]N.J.S.A. 2C:29-2a(3)(b).Although the broad definition of public servant inN.J.S.A. 2C:27-1g is applicable to Chapter 29 offenses, there is no need to define that term any differently than law enforcement officer in the context of resisting arrest.[N.J.S.A. 2C:29-2] was altered before enactmentto limit the broad category of public servant to law enforcement officer Cannel,Criminal Code Annotated, Comment 1,N.J.S.A. 2C:29-2 (2006 Ed.).

[13]State v. Bunch, 180N.J. 534, 546 (2004).

[14]N.J.S.A. 2C:11-1a.SeeState v. Wallace, 158N.J. 552, 558 (1999).

[15]N.J.S.A. 2C:1-13a andState v. Ragland, 105N.J. 189 (1986).The jury should be provided with a verdict form which will allow them to record which verdict they have entered.


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutors Association.

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Ken Vercammen articles

Ken Vercammens Resume Directions to Ken Vercammen and Associates



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