SHOPLIFTING [CONCEALMENT] 2C: 20-11b(2)) model jury charge

SHOPLIFTING [CONCEALMENT] 2C: 20-11b(2)) model jury charge

SHOPLIFTING [CONCEALMENT] (N.J.S.A.2C: 20-11b(2))model jury charge [Count _______ of] [T]he indictment charges the defendant with shoplifting. [READ INDICTMENT OR APPLICABLE COUNT] The statute provides in pertinent part that it is a crime for: Any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof. In order for you to find the defendant guilty of shoplifting, the State must prove each of the following elements beyond a reasonable doubt: 1.that defendant purposely concealed uponhis/herperson or otherwise any merchandise offered for sale by (name of commercial establishment); 2.that (name of commercial establishment) was a store or other retail mercantile establishment; and 3.that defendant did so with the purpose of depriving the merchant of the processes, use, or benefit of such merchandise [OR of converting such merchandise tohis/heruse] without paying the merchant the value thereof. The first element that the State must prove beyond a reasonable doubt is that defendant purposely concealed uponhis/herperson or otherwise any merchandise offered for sale by any store or other retail establishment. The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.[1]The term merchandise means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.[2] A person acts purposely with respect to the nature ofhis/herconduct or a result ofhis/herconduct if it is the persons conscious 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 if the person is aware of the existence of such circumstances or believes or hopes that they exist.[3] Purpose is a state of mind.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 saidhe/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 of the surrounding circumstances. The second element that the State must prove beyond a reasonable doubt is that (name of commercial establishment) was a store or other retail mercantile establishment.The term store or other retail mercantile establishment means a place where merchandise is displayed, held, stored, or sold or offered to the public for sale.[4] The third element that the State must prove beyond a reasonable doubt is that defendant acted with the purpose of depriving the merchant of the processes, use or benefit of such merchandise [OR converting such merchandise tohis/heruse] without paying the merchant the value of the merchandise.I have already defined purpose for you earlier in these instructions. The term value means the fair market value at the time and place of the alleged purposeful concealment.[5] The term deprive means to withhold property permanently or for so extended a period as to appropriate a substantial portion of its economic value.[6] [OR: The term converting or conversion means to exercise wrongful dominion and control over property owned by another in a manner inconsistent with the owners rights].[7] The term merchant means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee, or independent contractor of such owner or proprietor.[8] PERMISSIVE INFERENCE [WHERE APPROPRIATE][9] (N.J.S.A. 2C:20-11d) If you find that defendant purposely concealed unpurchased merchandise of any store either on the premises or outside the premises of such store or other retail mercantile establishment, you may infer that defendant so concealed such merchandise for the purpose of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof.The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.[10] If you find that defendant concealed or caused to be concealed such merchandise uponhis/herperson or amonghis/herbelongings, or upon the person or among the belongings of another, you may infer that defendant did so purposely. An inference is a deduction of fact that may be drawn logically and reasonably from another fact or group of 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. [IN ALL CASES] To summarize, in order for you to find defendant guilty of shoplifting, the State must prove these elements beyond a reasonable doubt: 1.that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by [name of commercial establishment]; 2.that (name of commercial establishment) was a store or other retail mercantile establishment; and 3.that defendant did so with the purpose of depriving the merchant of the processes, use, or benefit of such merchandise [OR of converting such merchandise tohis/heruse] without paying the merchant the value thereof. If you find that the State has proven all of these elements beyond a reasonable doubt, then you must find the defendant guilty.If the State has failed to prove any of these elements, you must find defendant not guilty. VALUE OF MERCHANDISE (N.J.S.A. 2C:20-11c) If you find the State has proven all of the previous elements beyond a reasonable doubt, you must then determine whether the State has proven beyond a reasonable doubt that the full retail value of the property involved [CHOOSE APPROPRIATE ALTERNATIVES] (1)is $75,000 or more; or (2)exceeds $500 but is less than $75,000; or (3)is at least $200, but does not exceed $500; or (4)is less than $200. The term full retail value means the merchants stated or advertised price of the merchandise.[11] [1]N.J.S.A.2C:20-11a(6).InHenry v. Shoppers World, 200N.J. Super. 14, 18 (App. Div. 1985), the Court held that the term concealed unpurchased merchandise ... may be construed as applying to items in plain view but worn or carried as though they had been purchased.However, the phrase that the Court was construing is found inN.J.S.A.2C:20-11e, which provides civil and criminal immunity to merchants or others under certain circumstances, and the opinion does not refers to the term conceal in subsection a(6).See alsoState v. Evans, 340N.J. Super. 244, 251 (App. Div. 2001). [2]N.J.S.A.2C:20-11a(3). [3]N.J.S.A.2C:2-2(b)(1). [4]N.J.S.A.2C:20-11a(2). [5]N.J.S.A.2C:1-14m. [6]N.J.S.A.2C:20-1a(1). [7]Port-O-San Corporation v. Teamsters, 363N.J. Super. 431, 440 (App. Div. 2003), quotingCommercial Insurance Company of Newark v. Apgar, 111N.J. Super. 108, 114-115 (Law Div. 1970).See alsoBlacks Law Dictionary333 (7thEd. 1999). [8]N.J.S.A.2C:20-11a(4). [9]A court should exercise care in deciding if the factual scenario presented at trial requires instruction on the presumption. See generally Cannel, New Jersey Criminal Code Annotated (2005 ed.), Comment 6 toN.J.S.A.2C:20-11 and Comment 6,N.J.S.A.2C:1-13e.Before the statutory presumption is used, it must also be determined thatits use would satisfy constitutional requirements of due process to make sure its use does not improperly shift the burden of proof by directing a verdict on an essential element of the crime.County Court of Ulster County, New York v. Allen, 442U.S. 140 (1979) andState v. Ingram, 98N.J. 489 (1985). Thestatutory language contained inN.J.S.A.2C:20-11d has been interpreted to be constitutionalinCarollo v. Supermarkets General Corp., 251N.J. Super. 264, 269-269 and n. 1 (App. Div. 1991).See alsoState v. Fitzmaurice, 126N.J. Super361 (App Div), certif. den.65N.J. 562 (1974) (assessing the precursor statutory language ofN.J.S.A.2A:170-99). [10]N.J.S.A.2C:20-11a(6).InHenry v. Shoppers World, 200N.J. Super. 14, 18 (App. Div. 1985), the Court held that the term concealed unpurchased merchandise ... may be construed as applying to items in plain view but worn or carried as though they had been purchased.However, the phrase that the Court was construing is found inN.J.S.A.2C:20-11e, which provides civil and criminal immunity to merchants or others under certain circumstances, and the opinion does not refers to the term conceal in subsection a(6).See alsoState v. Evans, 340N.J. Super. 244, 251 (App. Div. 2001). [11]N.J.S.A.2C:20-11a(7).

SHOPLIFTING [CARRYING AWAY] 2C: 20-11b(1)) model jury charge

SHOPLIFTING [CARRYING AWAY] (N.J.S.A. 2C: 20-11b(1))model jury charge [Count ______ of] [T]he indictment charges the defendant with shoplifting. [READ INDICTMENT OR APPLICABLE COUNT] That statute provides in pertinent part that it is a crime for: Any person to purposely take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof. In order for you to find the defendant guilty of shoplifting, the State must prove each of the following elements beyond a reasonable doubt: 1. that defendant purposely [took possession of] [carried away] [caused to be carried away] [transferred] [caused to be transferred] any merchandise displayed, held, stored or offered for sale by [name of commercial establishment]; 2. that [name of commercial establishment] was a store or other retail mercantile establishment; and 3. that defendant did so with the purpose of depriving the merchant of the possession, use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the full retail value thereof. The first element that the State must prove beyond a reasonable doubt is that defendant purposely [took possession of] [carried away] [caused to be carried away] [transferred] [caused to be transferred] any merchandise displayed, held, stored or offered for sale by [name commercial establishment]. The term merchandise means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.[1] A person acts purposely with respect to the nature of his/her conduct or a result of his conduct if it is his/herconscious object to engage in conduct of that nature or to cause such a result. That is, a person acts purposely if he/she means to act in a certain way or to cause a certain result. A person acts purposely with respect to attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist.[2] To possess an item under the law, one must have a knowing, intentional control of that item accompanied by a knowledge of its character. So, a person who possesses an item such as (IDENTIFY RELEVANT ITEM(S)) must know or be aware that he/she possesses it, and he/she must know what it is that he/she possesses or controls. [WHERE APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to possess an item, one must knowingly procure or receive an item or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish his/her control if he/she chose to do so. The State must prove beyond a reasonable doubt that a possessor acted knowingly in possessing the item. 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 the high probability of their existence. A person acts knowingly as 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. A person may possess (an item) even though it was not physically on his/her person at the time of the arrest, if he/she had in fact, at some time prior to his/her arrest, had control over it. Possession means a conscious, knowing possession, either actual or constructive. [CHARGE THOSE FOLLOWING PARAGRAPHS AS APPLY TO YOUR CASE] ACTUAL POSSESSION A person is in actual possession of an item when he/she first, knows what it is: that is, he/she has knowledge of its character, and second, knowingly has it on his/her person at a given time. CONSTRUCTIVE POSSESSION Possession may be constructive instead of actual. Constructive possession means possession in which the possessor does not physically have the item on his/her person but is aware that the item is present and is able to and has the intention to exercise control over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item. JOINT POSSESSION Possession may be sole or joint. If one person alone has actual or constructive possession of an item, possession is sole. If two or more persons share actual or constructive knowing possession of an item, possession is joint. The second element that the State must prove beyond a reasonable doubt is that [name of commercial establishment] was a store or other retail mercantile establishment. The term store or other retail mercantile establishment means a place where merchandise is displayed, held, stored, or sold or offered to the public for sale.[3] The third element that the State must prove beyond a reasonable doubt is that defendant acted with the purpose of depriving the merchant of the possession, use or benefit of such merchandise [OR converting such merchandise to his/her use] without paying the merchant the full retail value of the merchandise. I have already defined purpose for you earlier in these instructions. The term full retail value means the merchants stated or advertised price of the merchandise.[4] The term deprive means to withhold property permanently or for so extended a period as to appropriate a substantial portion of its economic value.[5] [OR: The term converting or conversion means to exercise wrongful control over property owned by another in a manner inconsistent with the owners rights].[6] The term merchant means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee, or independent contractor of such owner or proprietor.[7] Purpose and knowledge are states of mind. 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 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 inference which may arise from the nature of defendants 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. PERMISSIVE INFERENCE [WHERE APPROPRIATE][8] (N.J.S.A. 2C:20-11d) If you find that defendant purposely concealed unpurchased merchandise of any store either on the premises or outside the premises of such store or other retail mercantile establishment, you may infer that defendant so concealed such merchandise for the purpose of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof. The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.[9] If you find that defendant concealed or caused to be concealed such merchandise upon his/her person or among his/her belongings, or upon the person or among the belongings of another, you may infer that defendant did so purposely. An inference is a deduction of fact that may be drawn logically and reasonably from another fact or group of 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. [IN ALL CASES] To summarize, in order for you to find defendant guilty of shoplifting, the State must prove these elements beyond a reasonable doubt: 1. that defendant purposely [took possession of] [carried away] [caused to be carried away] [transferred] [caused to be transferred] any merchandise displayed, held, stored or offered for sale by [name of commercial establishment]; 2. that [name of commercial establishment] was a store or other retail mercantile establishment; and 3. that defendant did so with the purpose of depriving the merchant of the possession, use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the full retail value thereof. If you find that the State has proven all of these elements beyond a reasonable doubt, then you must find the defendant guilty. If the State has failed to prove any of these elements, you must find defendant not guilty. VALUE OF MERCHANDISE (N.J.S.A. 2C:20-11c) If you find the State has proven all of the previous elements beyond a reasonable doubt, you must then determine whether the State has proven beyond a reasonable doubt that the full retail value of the merchandise involved [CHOOSE APPROPRIATE ALTERNATIVES] (1) is $75,000 or more; or (2) exceeds $500 but is less than $75,000; or (3) is at least $200, but does not exceed $500; or (4) is less than $200. I have already defined full retail value for you earlier in these instructions. [1] N.J.S.A. 2C:20-11a(3). [2] N.J.S.A. 2C:2-2(b)(1). [3] N.J.S.A. 2C:20-11a(2). [4] N.J.S.A. 2C:20-11a(7). [5] N.J.S.A. 2C:20-1a(1). [6] Port-O-San Corporation v. Teamsters, 363 N.J. Super. 431, 440 (App. Div. 2003), quoting Commercial Insurance Company of Newark v. Apgar, 111 N.J. Super. 108, 114-15 (Law Div. 1970). See also Blacks Law Dictionary 333 (7th Ed. 1999). [7] N.J.S.A. 2C:20-11a(4). [8] A court should exercise care in deciding if the factual scenario presented at trial requires instruction on the presumption. See generally Cannel, New Jersey Criminal Code Annotated (2005 ed.), Comment 6 to N.J.S.A.2C:20-11 and Comment 6, N.J.S.A. 2C:1-13e. Before the statutory presumption is used, it must also be determined that its use would satisfy constitutional requirements of due process to make sure its use does not improperly shift the burden of proof by directing a verdict on an essential element of the crime. County Court of Ulster County, New York v. Allen, 442 U.S. 140 (1979) and State v. Ingram, 98 N.J. 489 (1985). The statutory language contained in N.J.S.A. 2C:20-11d has been interpreted to be constitutional in Carollo v. Supermarkets General Corp., 251 N.J. Super. 264, 268-69 and n. 1 (App. Div. 1991). See also State v. Fitzmaurice, 126 N.J. Super. 361 (App Div), certif. den. 65 N.J. 562 (1974) (assessing the precursor statutory language of N.J.S.A. 2A:170-99). [9] N.J.S.A. 2C:20-11a(6). In Henry v. Shoppers World, 200 N.J. Super. 14, 18 (App. Div. 1985), the Court held that the term concealed unpurchased merchandise ... may be construed as applying to items in plain view but worn or carried as though they had been purchased. However, the phrase that the Court was construing is found in N.J.S.A. 2C:20-11e, which provides civil and criminal immunity to merchants or others under certain circumstances, and the opinion does not refer to the term conceal in subsection a(6). See also State v. Evans, 340 N.J. Super. 244, 251 (App. Div. 2001).

Shoplifting defenses Walmart

Shoplifting defenses Walmart

Shoplifting defenses Thestate must prove the Defendant had the knowing intent to commit a criminal act in a shoplifting case. Sometimes the defendant was not aware that there was a criminal act being committed because of mental issues. NJSA 2C: 4-2. Evidence of mental disease or defect admissible when relevant to element of the offense. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind, which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect, which would negate a state of mind, which is an element of the offense. Criminal Indictable and Disorderly Offense Penalties Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court Jail 2C: 43- 8 jail 6 month maximum probation 1-2 year  community service 180 days maximum mandatory costs, VCCB and other penalties Disorderly- fines: 2C: 43- 3 $1,000 Fine maximum There are many other penalties that the court must impose in criminal cases. There are dozens of other penalties a court can impose, depending on the type of matter. Indictable Criminal Penalties [Felony type] [ Superior Court] Jail potential Fine max Probation 1st degree 10- 20 years $200,000 [presumption of jail] 2nd degree 5-10 years $150,000 [presumption of jail] 3rd degree 3- 5 years $15,000 1 year- 5 year 4th degree 0- 18 months $10,000 1 year- 5 year The NJ Model Jury charges set forth the elements of SHOPLIFTING [CONCEALMENT] (N.J.S.A. 2C: 20-11b(2)) The statute provides in pertinent part that it is a crime for: any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof. In order for the finder of fact to find the defendant guilty of shoplifting, the State must prove each of the following elements beyond a reasonable doubt: 1. that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by (name of commercial establishment); 2. that (name of commercial establishment) was a store or other retail mercantile establishment; and 3. that defendant did so with the purpose of depriving the merchant of the processes, use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the value thereof. The first element that the State must prove beyond a reasonable doubt is that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by any store or other retail establishment. The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.1 The term merchandise means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.2 A person acts purposely with respect to the nature of his or her conduct or a result of his conduct if it is the persons conscious object to engage in conduct of that nature or to cause such a result. That is, a person acts purposely if he or she means to act in a certain way or to cause a certain 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.3 1 N.J.S.A. 2C:20-11a(6). 2 N.J.S.A. 2C:20-11a(3). 3 N.J.S.A. 2C:2-2(b)(1). Purpose is a state of mind. 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 the fact finders 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 third element that the State must prove beyond a reasonable doubt is that defendant acted with the purpose of depriving the merchant of the processes, use or benefit of such merchandise [OR converting such merchandise to his/her use] without paying the merchant the value of the merchandise. WHEN OFFENSE CHARGED REQUIRES A PURPOSEFUL OR KNOWING STATE OF MIND, CONTINUE CHARGE AS FOLLOWS: Although the statute refers to mistake of fact or law as a defense, caselaw makes it clear that it is not genuinely a defense at all: instead, it is an attack on the prosecutions ability to prove the requisite mental state for at least one objective element of the crime. State v. Sexton, 160 N.J. 93, 99-100 (1999). Since it is obviously impossible for any single charge to explain precisely how the offered defense plays into the element[s] of every possible offense that mistake of fact or law could apply to (Sexton, 160 N.J. at 106), and at best can offer a more general charge on the subject of mistake of fact or law (State v. Pena, 178 N.J. 297, 319 (2004)), this model charge is organized by reference to the state of mind under N.J.S.A. 2C:2-2b contained in the offense charged by the State, and then by the degree to which the mistake of fact or law exonerates or mitigates the defendants guilt. As always, the trial court must tailor the precise type of mistake that defendant relies on to the facts of the particular crime or offense charged and the facts adduced at trial. State v. Concepcion, 111 N.J. 373, 379-380 (1988). 2 Since even an unreasonable mistake can negate the required state of mind for the charged offense, the statutory requirement that the defendant reasonably arrived at the conclusion underlying the mistake was eliminated and, therefore, is not referred to in this model charge. Sexton, 160 N.J. at 105; Pena, 178 N.J. at 306. 3 Sexton, 160 N.J. at 100; Pena, 178 N.J. at 306. STATE OF MIND Purpose/knowledge/intent/recklessness/negligence is/are condition(s) 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. It is the fact finders job 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. PRESUMPTION OF INNOCENCE This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until proven guilty beyond a reasonable doubt. REASONABLE DOUBT The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty. The State has the burden of proving the defendant guilty beyond a reasonable doubt. A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have. Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendants guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. 2C:20-11 b.Shoplifting. Shoplifting shall consist of any one or more of the following acts:  (1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.  (2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.  (3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.  (4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.  (5 )For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.  (6 )For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.  c.Gradation. Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more.  (2) Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.  (3) Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.  (4) Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.  The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.  Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.  d. Presumptions. Any person purposely concealing uppercased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

Sharing of Drugs Not Distribution; State v. Lopez, State v. Garcia, 359 NJ Super. 222 (App. Div. 2003)

Sharing of Drugs Not Distribution. State v. Lopez, State v. Garcia, 359 NJ Super. 222 (App. Div. 2003)  We conclude that, as a matter of law, the sharing of drugs by individuals in joint possession of the drugs does not constitute ?intent to distribute? within the meaning of N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7. The prosecutor's assertion to the jury that a finding of ?intent to distribute? could be based on evidence of drug sharing between the two defendants in joint possession of the drugs was a material misstatement of law. In the context of the evidence presented here, the trial court's failure to correct this material misstatement of law amounted to plain error, R. 2:10-2, requiring reversal of defendant's convictions.

SEXUAL CONTACT victim helpless model jury charge

AGGRAVATED CRIMINAL SEXUAL CONTACT (VICTIM HELPLESS, MENTALLY INCAPABLE/INCAPACITATED)model jury charge (N.J.S.A. 2C:14-3a [2C:14-2a(7)]) (Offenses arising after March 17, 2012) Count_____ of the indictment charges the defendant with aggravated criminal sexual contact. [READ COUNT OF INDICTMENT] That section of our statutes provides in pertinent part: A person is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with another person whom the actor knew or should have known was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent. In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt: 1. That defendant purposely committed an act of sexual contact with another person, and OR 1. That defendant purposely committed an act of sexual contact by touching himself/herself and the touching was in the view of(name of victim)who defendant knew was present, and 2. That at the time of the sexual contact the victim was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent,1and 3. That defendant knew or should have known that the victim was[choose 1P.L. 2011, c. 232, effective March 17, 2012, eliminated the term mentally defective.AGGRAVATED CRIMINAL SEXUAL CONTACT (VICTIM HELPLESS, MENTALLY INCAPABLE/ INCAPACITATED) (N.J.S.A. 2C:14-3a [2c:14-2a(7)]) (Offenses arising after March 17, 2012)Page 2 of 5 appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent. The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual contact upon(name of victim). Sexual contact means an intentional touching by(name of victim)or by the defendant, either directly or through clothing, of(name of victims)or defendants intimate parts for the purpose of degrading or humiliating(name of victim)or sexually arousing or gratifying defendant. Intimate parts means[CHOOSE APPROPRIATE]sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person. To find that defendant committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional and that it was done with the purpose of degrading or humiliating(name of victim)or sexually arousing or gratifying the defendant. Intentional means purposeful. 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 the attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist. [WHEN DEFENDANT IS CHARGED WITH TOUCHING HIMSELF/HERSELF, ADD THE FOLLOWING:The State must prove beyond a reasonable doubt that the touchingAGGRAVATED CRIMINAL SEXUAL CONTACT (VICTIM HELPLESS, MENTALLY INCAPABLE/ INCAPACITATED) (N.J.S.A. 2C:14-3a [2c:14-2a(7)]) (Offenses arising after March 17, 2012)Page 3 of 5 2State v. Zeidell, 154N.J. 417 (1998). 3State v. Breitweiser, 373N.J. Super. 271, 276, 286-87 (App. Div. 2004). was in view of the victim whom the defendant knew to be present.2The State is not required to prove that(name of victim)actually observed or witnessed the alleged sexual contact. Rather, the State must prove that the alleged sexual contact occurred in the view of(name of victim). Field of vision is not limited to the visual direction in which the alleged victim is focused upon at the particular time when the alleged sexual contact is said to have occurred. Field of vision includes the areas that(name of victim)was capable of viewing.3The State must prove beyond a reasonable doubt that(name of victim)was present. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.] Purpose [and knowledge] [is] [are] [a] condition[s] of the mind. [It] [They] cannot be seen. Often, [it] [they] 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 whichAGGRAVATED CRIMINAL SEXUAL CONTACT (VICTIM HELPLESS, MENTALLY INCAPABLE/ INCAPACITATED) (N.J.S.A. 2C:14-3a [2c:14-2a(7)]) (Offenses arising after March 17, 2012)Page 4 of 5 4N.J.S.A. 2C:14-1g. 5N.J.S.A. 2C:14-1h. 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. The second element that the State must prove beyond a reasonable doubt is that at the time of the sexual contact, the victim was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent. Physically helpless means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act.4 Mentally incapable means that condition in which a person suffers has a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of (his/her) conduct, including but not limited to, being incapable of providing consent.5A person is mentally incapable if, at the time of the sexual activity, the mental disease or defect rendered (him/her) unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another. It includes both the capacity to understand and the capacity to consent with respect to personal sexual activity. The capacity to consent involves knowing that ones body is private and is not subject to the physical invasions of another and that one has the right and ability to refuse to engage inAGGRAVATED CRIMINAL SEXUAL CONTACT (VICTIM HELPLESS, MENTALLY INCAPABLE/ INCAPACITATED) (N.J.S.A. 2C:14-3a [2c:14-2a(7)]) (Offenses arising after March 17, 2012)Page 5 of 5 6State v. Olivio, 123N.J. 550, 563-64 (1991). 7N.J.S.A. 2C:14-1i. sexual activity. The capacity to understand, which is part of the idea of the capacity to consent, involves the knowledge that the conduct is distinctively sexual. Here, that knowledge extends only to the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts may be morally right or wrong and have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders.6 Mentally incapacitated means that condition in which a person is rendered temporarily incapable of understanding or controlling (his/her) conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without (his/her) prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling (his/her) conduct.7 The third element that the State must prove beyond a reasonable doubt is that defendant knew or should have known under the circumstances that the(name of victim)was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent. If you find that the State has proven every element beyond a reasonable doubt, then you must find the defendant guilty of aggravated criminal sexual contact. If you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated criminal sexual contact.

2C:35B-17. Nonapplicability of Act

No cause of action shall arise based on any act by a defendant which occurred prior to the effective date of this act.