KIDNAPPING (N.J.S.A. 2C:13-1a) model jury charge in NJ
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2C:13-1a KIDNAPPING
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
the place where he is found or if he unlawfully confines another with
the purpose of holding that person for ransom or reward or as a shield
or hostage.
(Select appropriate section)
In
order for you to find the defendant guilty of kidnapping, the State is
required to prove each of the following elements to you beyond a
reasonable doubt:
1.That the defendant __________, unlawfully removed __________, from_________.
and/or
That the defendant __________, unlawfully confined __________, at __________.
2.That
the removal.....confinement was for the purpose of holding
__________,for ransom.... or reward....or as a shield or hostage.
You will note that I have used the terms unlawfully removed....unlawfully confined.
(IF THE PERSON ALLEGED TO HAVE BEEN REMOVED OR CONFINED IS OVER THE AGE OF 14 AND NOT INCOMPETENT USE THE FOLLOWING)
The term unlawful means to accomplish the removal or confinement by force, threat, or deception....[1]
(IF THE PERSON REMOVED OR CONFINED IS UNDER THE AGE OF 14 OR INCOMPETENT USE THE FOLLOWING)
The
term unlawful means to accomplish the removal or confinement without
the consent of the parent, guardian, or other person responsible for the
general supervision ofhis/herwelfare.[2]
I have also used the term purpose.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, if the person means to do whathe/shedoes 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]
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 inference
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 or
the defendant stated, for example, thathis/herpurpose in ... removing __________, (and/or) confining __________ was for ransom or reward or as a shield or hostage.
(Select appropriate section)
It
is within the power of the jury to find that the proof of purpose has
been furnished beyonda 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.
The
statute defines the crime of kidnapping in part by using the words
unlawfully removing a person from where (he/she) is found.First you must
understand that the unlawfulness of removing a person from where
(he/she) is found, that is, where the victim happened to be at the
moment of the unlawful removal, does not depend upon the distance a
victim is moved.
In
other words, the unlawful removal to any specific location or of a
specific distance is not necessary to the offense so long as the removal
was unlawful, that is, ....accomplished by force, threat, or deception,
...accomplished without the consent of parent, guardian or other person
responsible for the general supervision of his welfare ... and for the
purpose of gaining ransom or reward or using the victim as a shield or
hostage.
The statute further defines the crime of kidnapping as the unlawful confinement of a person.
The
confinement need not be for a specific period of time so long as the
confinement was unlawful, that is, ... accomplished by force, threat, or
deception, ... accomplished without the consent of a parent, guardian,
or other person responsible for the general supervision of (his/her)
welfare ... and for the purpose of gaining ransom or reward or using the
victim as a shield or hostage.
(Select appropriate section)
You will note that I have also used the words ransom, reward, shield and hostage.
Ransom
is defined as the money, price, or consideration paid or demanded for
redemption of a captive person, that is, a payment to secure the release
of the captive person.[4]
Reward
under the circumstances of this case is not limited to a thing of
monetary value, but can include a benefit to the kidnapper.
One used another person as a shield when by forcehe/sheplaces that person in a position of danger in order to protecthimself/herself.[5]
Hostage
implies the unlawful taking, restraining, or confining of a person with
the intent that the person confined be held as security to ensure that a
third person either performs some action or refrains from performing
some action.[6]
[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 thathe/sheknowingly harmed ________ or knowingly did not release ________ in a safe place prior tohis/herapprehension.[7]The harm component can include physical, emotional or psychological harm.[8]In this case, the State alleges that defendant [describe conduct allegedly constituting harm[9]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:
(1)age of the victim and any other physical or mental condition of the victim;[10]
(2)the location, the conditions of the area, and the time of the release;
(3)the circumstances surrounding the release; and
(4)any other circumstances that occurred or existed surrounding the release.
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.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 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.
[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 theState has proven beyond a reasonable doubt thathe/sheknowingly harmed __________ or knowingly did not release ________ in a safe placeprior tohis/herapprehension you must 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 thathe/sheknowingly harmed _________ or knowingly did not release ________in a safe place prior tohis/herapprehension, you must then find the defendant guilty of kidnapping in the first degree.
[2]Id.
[6]State v. Littlefield, 389A.2d16 (Me. 1978);State v. Lee, 234S.E. 2d482 (N.C. App. 1977);State v. Crump, 484P2d329 (N.M. 1971).
[7]State v. Sherman, 367N.J. Super. 324, 330-331 (App. Div. 2004),certif. denied, 180N.J.356 (2004).
[9]We conclude that the harm component of the unharmed release provision contained inN.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, 367N.J. Super. at 330.
[10]InState v. Johnson, 309N.J. Super. 237, 265 (App. Div.),certif. denied, 156N.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 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.
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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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