BURGLARY IN THE THIRD DEGREE (N.J.S.A. 2C:18‑2a) model jury
BURGLARY IN THE THIRD DEGREE
(N.J.S.A. 2C:18‑2a)model jury charge
The indictment charges the defendant with committing the crime of burglary.The indictment reads as follows:
(Read Indictment)
N.J.S.A. 2C:18‑2a insofar as it is applicable to this case reads as follows:
A person is guilty of burglary if, with purpose to commit anoffense therein the person:
(1)Enters
a (research facility) (structure), or a separately secured or occupied
portion thereof, unless the (research facility) (structure) was at the
time open to the public or the person is licensed or privileged to
enter; or
(2)Surreptitiously
remains in a (research facility) (structure) or a separately secured or
occupied portion thereof knowing that he is not licensed or privileged
to do so.
Specifically,
the defendant in this case is charged with entering with the purpose to
commit an offense.I must therefore explain to you, first, what
constitutes burglary under the law and second, what constitutes an
offense.
In
order for you to find the defendant guilty of burglary, the State must
prove beyond a reasonable doubt the following elements:
1.that the defendant entered[1]the (research facility) (structure) known aswithout permission.
2.that the defendant did so with the purpose to commit an offense therein.
(WHERE APPLICABLE CHARGE PERTINENT PART OFN.J.S.A. 2C:1-14p)
Research
facility means any building, laboratory, institution, organization, or
school engaged in research, testing, educational or experimental
activities, or any commercial or academic enterprise that uses
warm-blooded or cold-blooded animals for food or fiber production,
agriculture, research, testing, experimentation, or education. A
research facility includes, but is not limited to, any enclosure,
separately secured yard, pad, pond, vehicle, building structure or
premises or separately secured portion thereof.
Structure includes any building [ORroom,
ship, vessel, car, vehicle, or airplane, and also means any place
adapted for overnight accommodation of persons or for carrying on
business therein] whether or not a person is actually present.[2]
Purpose to commit an offense means that the defendant intended to commit an unlawful act[3]inside the (structure) (research facility). [WHERE APPLICABLE CHARGE:The unlawful act(s) allegedly intended are set forth in count(s)of this indictment.][4]
A person acts purposely with respect to the nature of his conduct or a result thereof if it ishis/herconscious
object to engage in conduct of that nature or to cause such a result.
Purpose, with purpose, and similar words have the same meaning.[5]In
other words, in order for you to find that the defendant acted
purposely, the State must prove beyond a reasonable doubt that it was
the defendantsconscious objectat the timehe/sheunlawfully entered [OR surreptitiously remained in] the premises to commit an unlawful act.[6]
Purpose
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 witnesses be produced to testify that an accused saidhe/sheacted purposely whenhe/sheengaged in a particular act.His/Herstate of mind may be gathered fromhis/heracts andhis/herconduct, and from allhe/shesaid and did at the particular time and place, and from all of the surrounding circumstances.[7]
If
you find that the State has proved the crime charged and each of its
elements beyond a reasonable doubt, then you must find the defendant
guilty.
If
you find that the State has failed to prove any element beyond a
reasonable doubt, then you must find the defendant not guilty.
[1]If
surreptitiously remaining is in your case, charge as follows: that the
defendant surreptitiously remained for some duration in the (research
facility) (structure), or a separately secured or occupied portion
thereof knowing that (he/she) was not licensed or privileged to do so. [SeeN.J.S.A. 2C:18-2a(2) and Cannel,Criminal Code Annotated, Comment 4,N.J.S.A.
2C:18-2 (requirement that this offense requires a stay of some
duration)]. Surreptitiously means secretly, stealthily, or fraudulently.
[Blacks Law Dictionaryat p. 1445 (6th ed. 1990).
[2]N.J.S.A. 2C:18-1.
[4][W]here
the circumstances surrounding the unlawful entry do not give rise to
any ambiguity or uncertainty as to a defendants purpose in entering a
structure without privilege to do so [and] led inevitably and reasonably
to the conclusion thatsomeunlawful
act is intended to be committed inside the structure, then specific
instructions delineating the precise unlawful acts intended are
unnecessary.Robinson, 289N.J. Super.
at 458 (emphasis in original). However, where the circumstances
surrounding defendants purpose in entering or surreptitiously remaining
in the structure or research facility are ambiguous,i.e.,
the evidence suggests both criminal and non-criminal purposes for the
entry, then it might be necessary to direct the jurys consideration to
the specific criminal acts alleged in the indictment, if there are any.See, for instance,State v. Marquez, 277N.J. Super. 162, 168-169 (App. Div. 1994).
[5]N.J.S.A. 2C:2-2b(1).
[6]If
the jury may find from the facts that, although defendant entered the
premises without permission he did not do so with the purpose to commit
an offense therein, the jury must be charged on the appropriate lesser
included offense of criminal trespass.SeeN.J.S.A. 2C:18-3.
