N.J. Model Criminal Jury Charge, N.J.S.A. 2C:17-3a(1)

Revised 5/16/05

CRIMINAL MISCHIEF –DAMAGE TO TANGIBLE PROPERTY BY

RECKLESS OR NEGLIGENT USE OF FIRE, EXPLOSIVES, ETC.

N.J.S.A. 2C:17-3a(1)

Count of the indictment charges defendant with committing the offense of criminal

mischief. In pertinent part, the indictment alleges that:

(Read material part of Count to jury)

Defendant is charged with viola ting a provision of our law that provides that a person is guilty

of criminal mischief if he/she damages the ta ngible property of anothe r person recklessly or

negligently in the employment of fire, explosives or other dangerous means.

In order to convict defendant of this offe nse you must find that the State has proved beyond a

reasonable doubt each of the following four elements:

1. That defendant damaged tangible property;

2. That the damaged property belonged to another person;

3. That defendant acted recklessly or neglig ently when he/she damaged the property; and

4. That the damage to the property was caused by defendant's use of fire, explosives or

other dangerous means.

The first element that the State must prove beyond a reasonable doubt is that defendant

damaged tangible property. To damage means to cause a loss, injury or deterioration that reduces the

value or usefulness of something.

1 Tangible property means real or personal property that is visible

and corporeal, i.e., something that can be seen and touched.2

The second element that the State must prove beyond a reasonable doubt is that the damaged

property belonged to another person. Property of another person means that defendant is not the owner

1 See Random House Dictionary of the English Language (2d ed., unabridged).

2 See Registrar & Transfer Co. v. Dir. Div. of Taxation , 157 N.J. Super. 532, 539 (Ch. 1978), rev'd o.g. 166 N.J.

Super. 75 (App. Div. 1979), certif. den. 81 N.J. 63 (1979). Tangible property does no t include intangibles such as contract

rights or choses in action. Miller, 33 N.J. Practice, Criminal Law, § 13.6 at 332 (2001 ed.)

CRIMINAL MISCHIEF - DAMAGE TO TANGIBLE

PROPERTY BY RECKLESS OR NEGLIGENT USE

(N.J.S.A. 2C:17-3a(1))

of the property damaged. 3 In this case, the State alleges th at the tangible property damaged was

(description) of ( name ).

The third element that the State must prove be yond a reasonable doubt is that defendant acted

recklessly or negligently when he/she damaged th e property. A person acts recklessly when he/she

consciously disregards a substantial and unjustifia ble risk. A conscious di sregard requires that

defendant actually be aware of the risk, but that he/s he ignores it anyway. The risk must be of such a

nature and degree that, considering the nature and purpose of the defendant's conduct and the

circumstances known to him/her, its disregard involve s a gross deviation from the standard of conduct

that a reasonable person would observe in the same situation. 4 In other words, for you to find that

defendant acted recklessly, you must be satisfied beyond a reasonable doubt that defendant was aware

of and disregarded a substantial an d unjustifiable risk that his/he r conduct would cause damage to

another person's tangible property.

A person acts negligently when he/she should be aware of a substantial and unjustifiable risk.

The risk must be of such a nature and degree that defendant's failure to perceive it, considering the

nature and purpose of his/her co nduct and the circumstances known to him/her, involves a gross

deviation from the standard of care that a reason able person would observe in the same situation. 5 In

other words, for you to find that defendant acted negligently, you must be satisfied beyond a

reasonable doubt that defendant shoul d have been aware of a substant ial and unjustifiable risk that

his/her conduct would cause damage to another person's tangible property.

3 Where appropriate, charge that property of another includes property partly owned by defendant in which any

other person has an interest which defendant is not privileged to infringe. See N.J.S.A. 2C:20-1h.

4 See N.J.S.A. 2C:2-2b(3)

5 See N.J.S.A. 2C:2-2b(4)

CRIMINAL MISCHIEF - DAMAGE TO TANGIBLE

PROPERTY BY RECKLESS OR NEGLIGENT USE

(N.J.S.A. 2C:17-3a(1))

You should understand that recklessness and negligence are conditions of the mind. They

cannot be seen. They can only be determ

ined by inferences from conduct, words or acts. Therefore, it

is not necessary for the State to produce witnesses to testify that defendant stated, for example, that

he/she acted recklessly or negligentl y when he/she did a particular thing. It is within your power to

find that proof of recklessness or negligence has been furnished beyond a reasonable doubt by

inference which may arise from the nature of th e acts and the surrounding ci rcumstances. The place

where the acts occurred and all that was done or said by defendant preceding, connected with, and

immediately succeeding the events in question are among the circumstances to be considered.

The fourth element that the State must prove beyond a reasonable doubt is that the damage to

the property was caused by defendant's use of fire, explosives or other dangerous means.6

If you find that the State has not proved be yond a reasonable doubt every element of the

offense, you must find defendant not guilty. But if you determine that the State has proved every

element of criminal mischief beyond a reasonable doubt, you must find defendant guilty of that

offense.

[GRADING]

If you find defendant guilty of criminal mischi ef, you must then go on to determine the extent

of the pecuniary loss that defendant caused. P ecuniary loss means a financial or monetary loss

suffered by the owner of the damaged property. 7 The extent of the pecuniary loss caused by defendant

6 See N.J.S.A. 2C:17-2a for the other dangerous means encompassed by the statute.

7 In determining the extent of pecuniary loss, cost of repairs or other methods of proving damages in civil cases can

be used. Cf., State v. Burks, 188 N.J. Super. 55, 60-61 (App. Div. 1983), certif. den . 93 N.J. 285 (1983). For proving the

value of a damaged item, the standard is fair market value at the time of the offense. See N.J.S.A. 2C:1-14m.

CRIMINAL MISCHIEF - DAMAGE TO TANGIBLE

PROPERTY BY RECKLESS OR NEGLIGENT USE

(N.J.S.A. 2C:17-3a(1))

must be proved by the State beyond a reasonable doubt. 8 If you find defendant guilty, you must

indicate in your verdict whether you find the extent of the pecuniary loss suffered by the owner:

(1) amounts to more than $500, or

(2) amounts to $500 or less. 9

8 If the jury has a reasonable doubt regarding the amount of pecuniary loss incurred or cannot reach a unanimous

verdict on that issue, a conviction for criminal mischief as a disorderly person's offense should be entered. Cf., State v.

Clarke, 198 N.J. Super. 219, 226 (App. Div. 1985).

9 Note that the grading provisions of the statute conf ine criminal mischief committed "recklessly" or "negligently"

to fourth degree or disorderly persons offenses, depending upon the amount of pecuniary loss incurred. See N.J.S.A. 2C:

17-3b.