JOIN CRIMINAL STREET GANG 2C:33‑28) model jury charge in NJ
SOLICITATION, RECRUITMENT TO JOIN CRIMINAL STREET GANG
(N.J.S.A.2C:33‑28)model jury charge
The
indictment, which charges (defendant) with soliciting or recruiting
another person to join or actively participate in a street gang, reads:
(Read Indictment)
The statute on which this charge is based reads:
An
actor who solicits or recruits another to join or actively participate
in a criminal street gang with the knowledge or purpose that the person
who is solicited or recruited will promote, further, assist, plan, aid,
agree, or attempt to aid in the commission of criminal conduct by a
member of a criminal street gang, commits a crime ....
To convict (defendant) of this crime, the State must prove beyond a reasonable doubt each of these elements:
1.That (defendant) solicited or recruited another person to join or actively participate in a criminal street gang.
2.Thathe/shedid
so with the knowledge or purpose that the other person willparticipate,
or attempt to participate, in criminal conduct committed by a memberof
that gang.
The
first element that the State must prove beyond a reasonable doubt is
that (defendant) solicited or recruited another person to join or
actively participate in a criminal street gang.[1]A
criminal street gang means three or more persons associated in
fact.Persons are associated in fact if they have in common a group name
or identifying sign, symbol, tattoo or other physical marking, style of
dress or use of hand signs or other indicia of association or common
leadership, and, individually or in combination with other members of a
criminal street gang, while engaging in gang related activity, have
committed, conspired or attempted to commit, within the preceding three
years, two or more criminal acts [specify the nature of the acts].[2]
The
second element that the State must prove beyond a reasonable doubt is
thathe/shesolicited or recruited another to join or actively participate
in a criminal street gang with the knowledge or purpose that that other
person will participate, or attempt to do so, in criminal conduct
committed by a member of that gang.
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.A person acts purposely
with respect to the 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.[3]
A
person acts knowingly with respect to the nature ofhis/herconduct or
the attendant circumstances ifhe/sheis 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 ifhe/sheis aware that it is practically
certain that such conduct will cause a result.Knowing, with knowledge,
or equivalent terms have the same meaning.[4]
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 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 of the surrounding
circumstances.
One
has the requisite knowledge or purpose ifhe/sheknows that the person
being solicited or recruited will engage in some form, although not
necessarily which form, of criminal activity.[5]
A
person attempts to perform an act ifhe/shedoes or omits to do anything
with the purpose of performing that act without further conduct
onhis/herpart, or purposely does or omits to do anything which, under
the circumstances as a reasonable person would believe them to be, is an
act or omission constituting a substantial step planned to culminate in
the performance of that act.The step taken must strongly show
(defendants) criminal purpose.It must be substantial and not just a very
remote preparatory act and must show that the accused has a firmness of
criminal purpose.
So,
for (defendant) to be guilty of a criminal attempt, the State must
prove beyond a reasonable doubt thathe/sheacted purposely and
thathe/sheengaged in conduct which would constitute a substantial step
in soliciting or recruiting another to join or actively participate in a
criminal street gang.I have already defined purposely.
As
I noted, to prove an attempt, the State must prove beyond a reasonable
doubt that (defendant) purposely did or omitted to do anything which,
under the circumstances as a reasonable person would believe them to be,
is an act or omission that is a substantial step in the course of
conduct planned to culminate inhis/hercommission of the crime.
If
the State has failed to prove any one of these elements beyond a
reasonable doubt you must find (defendant) not guilty of this crime.
[CHARGE
FOLLOWING SENTENCE ONLY IF DEFENDANT IS NOT ACCUSED OF INJURING VICTIM
OR THREATENING BODILY INJURY OR COMMITTING THIS OFFENSE WHILE ON SCHOOL
PROPERTY[6]]
On
the other hand, if the State has proved all of these elements beyond a
reasonable doubt, you must find (defendant) guilty of this crime.
[CHARGE FOLLOWING PARAGRAPH IF DEFENDANT IS ACCUSED OF THREATENING BODILY INJURY]
If
the State has proved each of the above elements beyond a reasonable
doubt, you must consider an additional element.The State must prove
beyond a reasonable doubt that (defendant) threatened another person
with bodily injury on two or more separate occasions within a thirty day
period, in the course of soliciting or recruiting another person to
join the criminal street gang.Bodily injury means physical pain,
illness, or any impairment of physical condition.
[CHARGE FOLLOWING PARAGRAPH IF DEFENDANT IS ACCUSED OF INFLICTING SIGNIFICANT BODILY INJURY UPON ANOTHER]
If
the State has proved each of the above elements (that is, that
[defendant] solicited or recruited another to join or actively
participate in a criminal street gang, with the knowledge or purpose
that the other person will participate, or attempt to do so, in criminal
conduct committed by a member of that gang) beyond a reasonable doubt,
you must consider an additional element.The State must prove beyond a
reasonable doubt that (defendant), in the course of such solicitation or
recruitment, inflicted significant bodily injury upon another
person.Significant bodily injury means bodily injury which creates a
temporary loss of the functions of any bodily member or organ or
temporarily loss of any one of the five senses.Bodily injury means
physical pain, illness, or any impairment of physical condition.
[CHARGE FOLLOWING PARAGRAPH IF DEFENDANT IS ACCUSED OF COMMITTING THIS OFFENSE WHILE ON SCHOOL PROPERTY[7]]
If
the State has proved each of the above elements beyond a reasonable
doubt, you must consider an additional element.The State must prove
beyond a reasonable doubt that (defendant), in the course of soliciting
or recruiting another person to join the criminal street gang, did so
while on any school property.The term school property means any property
which is used for school purposes and is owned by or leased to an
elementary school, secondary school or school board.[8]It
does not matter whether the school is public, private or parochial.It
is also no defense to this charge that no juveniles were present on the
school property at the time of the offense, or that the school was not
in session.The possibility that defendant may have been unaware that the
prohibited conduct took place on school property is not a defense to
this crime and shall not be considered by you in your deliberations.
If
the State has proved beyond a reasonable doubt all elements of the
offense charged, you must find (defendant) guilty of soliciting or
recruiting to join a criminal street gang[CHOOSE APPLICABLE ALTERNATIVE]while threatening another with bodily injury on two or more occasions within a 30‑day periodORwhile inflicting significant bodily injury upon anotherAND/ORwhile
on any school property.On the other hand, if the State has failed to
prove the additional element(s) beyond a reasonable doubt, but has
proved the first two elements beyond a reasonable doubt, you must find
(defendant) guilty of soliciting or recruiting to join a criminal street
gang without[CHOOSE APPLICABLE ALTERNATIVE]threatening another with bodily injury on two or more occasions within a 30‑day periodORinflicting significant bodily injury upon anotherAND/ORwhile
on any school property.Finally, if you find that the State has failed
to prove either of the first two elements beyond a reasonable doubt, you
must find (defendant) not guilty.
[1]The definitions in this paragraph are found inN.J.S.A.2C:44‑3(h).
[2]SeeN.J.S.A.2C:44‑3(h).The
specific crimes delineated in the statute are robbery, carjacking,
aggravated assault, assault, aggravated sexual assault, sexual assault,
arson, burglary, kidnapping, extortion, or certain weapons and drug
laws.
[3]N.J.S.A.2C:2-2b(1).
[4]N.J.S.A.2C:2-2b(2).
[5]N.J.S.A.2C:33‑28(h).
[6]P.L.2013,c.202
amended this statute to create the third degree crime for offenses
committed on school property on or after January 17, 2014.
[7]P.L.2013,c.202
amended this statute to create the third degree crime for offenses
committed on school property on or after January 17, 2014.
[8]Where there is a question whether the property was used for school purposes charge the following:
In
addition to determining whether property is school property, you must
determine the purpose for which it is used. You must decide whether the
property is regularly, consistently, and actually used for school
purposes, and whether the propertys appearance would give an objectively
reasonable person reason to know that it was used regularly,
consistently, and actually for school purposes.State v. Ivory, 124N.J.582, 587, 592 (1991).
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| Consequences of a Criminal Guilty Plea 1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s) 2. Do you understand that if you plead guilty: a. You will have a criminal record3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail. 4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing. 5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution. 6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 8. You must wait 5-10 years to expunge a first offense. 2C:52-3 9. You could be put on Probation. 10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2 years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30. 11. You may be required to do Community Service. 12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty. 13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 15. You lose the presumption against incarceration in future cases. 2C:44-1 16. You may lose your right to vote. The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense. Jail for Crimes and Disorderly Conduct: If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms. NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years; (2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years; (3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years; (4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months. 2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed: a. (1) $200,000.00 when the conviction is of a crime of the first degree; (2) $150,000.00 when the conviction is of a crime of the second degree; b. (1) $15,000.00 when the conviction is of a crime of the third degree; (2) $10,000.00 when the conviction is of a crime of the fourth degree; c. $1,000.00, when the conviction is of a disorderly persons offense; d. $500.00, when the conviction is of a petty disorderly persons offense; If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500 |
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