N.J. Model Criminal Jury Charge, N.J.S.A. 2C:17-3a(4)

Approved 6/13/05

CRIMINAL MISCHIEF – DAMAGE/REMOVAL/IMPAIRMENT OF

AIR TRAFFIC DEVICE

(N.J.S.A. 2C:17-3b(4))

Count of the indictment charges defendant w ith committing the offense of criminal

mischief by (insert allegation of indictment). In pertinent part, the indictment alleges that

(Read material part of Count to jury)

Defendant is charged with violating a provisio n of our law that provides that a person is

guilty of criminal mischief if he/she damages, removes or impairs the operation of any device which

serves to regulate or ensure the safety of air tr affic at any airport, la nding field, landing strip,

heliport, helistop or any other aviation facility.

In order to convict defendant of this offense, you must find that the State has proved beyond

a reasonable doubt each of the following three elements:1

1. That (name of affected location ) is an airport/landing fi eld/landing strip/heliport/

helistop or other aviation facility;

2. That defendant damaged/removed/impaired the operation of a device which serves to

regulate or ensure the safety of air traffic at (name of affected location); and

3. That defendant acted knowingly when he/she damaged/removed/impaired the (air

traffic device).2

The first element that the State must prove beyond a reasonable doubt is that (name of

affected location) is an airport/landing field/landing strip/heliport/helistop/or other aviation facility.

The second element that the State must pr ove beyond a reasonable doubt is that defendant

damaged/removed/impaired the operation of a device which serves to regulate or ensure the safety

of air traffic at (name of affected location). Objects encompassed by the statute include but are not

1 The form of the offense defined here is a fourth degree crime. Second and third degree versions of the offense

contain additional elements and are considered within.

2 N.J.S.A. 2C:17-3b(4) does not set forth any culpability standard for the offense. The statute should therefore

be construed to require proof that defendant acted knowingly. See N.J.S.A. 2C:2-2c(3).

CRIMINAL MISCHIEF - DAMAGE/REMOVAL/

IMPAIRMENT OF AIR TRAFFIC DEVICE

(N.J.S.A. 2C:17-3b(4))

limited to a sign, a signal, a light or any other equipment utilized at ( name of affected location) to

regulate or ensure the safety of air traffic.3

The third element that the State must pr ove beyond a reasonable doubt is that defendant

acted knowingly when he/she damaged/removed/impaired the (air traffic device ). A defendant

acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if

defendant is aware that his/her co nduct is of that nature, or that such circumstances exist, or

defendant is aware of a high probability of their existence. A defendant acts knowingly with respect

to a result of his/her conduct if defendant is aware that it is practically cer tain that his/her conduct

will cause such a result.4

You should understand that knowledge is a conditi on of the mind. It cannot be seen. It can

only be determined 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 with

knowledge when he/she did a particular thing. It is within your power to find that proof of

knowledge has been furnished beyond a reasonable doubt by inferences which may arise from the

nature of the acts and the surrounding circumstances. 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 consid ered. Thus, for you to find that the defendant

acted knowingly, you must be satisfied beyond a reas onable doubt that defendant knew what he/she

was doing, and that defendant was aware that the nature of hi s/her conduct and the attendant

circumstances were such as to make it pract ically certain that de fendant's conduct would

damage/remove/impair the operation of a device which se rved to regulate or ensure the safety of air

traffic at (name of airport, etc.

).

3 See N.J.S.A. 2C:17-3b(4).

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

CRIMINAL MISCHIEF - DAMAGE/REMOVAL/

IMPAIRMENT OF AIR TRAFFIC DEVICE

(N.J.S.A. 2C:17-3b(4))

If you find that the State has failed to prove beyond a reasonable doubt any element of the

offense, you must find defendant not guilty.

[CHARGE AS FOLLOWS IF SUBMITTING ONLY 4

TH DEGREE OFFENSE TO JURY]

On the other hand, if you find that the St ate has proven beyond a reasonable doubt every

element of the offense, you must find defendant guilty.

[CHARGE AS FOLLOWS IF SUBMITTING TO JURY THE 3

RD DEGREE OFFENSE OF

AIR TRAFFIC DEVICE CRIMINAL MISCHIEF WITH BODILY INJURY/DAMAGE

TO PROPERTY AS WELL AS THE 4TH DEGREE OFFENSE]

If you find that the State has proved beyond a r easonable doubt all three of the elements of

criminal mischief that I have defined for you, you mu st then go on in your deliberations to consider

two additional elements: You must determine whether the State has proved beyond a reasonable

doubt:

4. That defendant's damage/removal/impairmen t of the operation of the air traffic device

caused bodily injury to (name of person

). Bodily injury means physical pain, illness or any

impairment of the physical condition,5

[or, in the alternative]

4. That defendant's damage/removal/impairmen t of the operation of the air traffic device

caused damage to property. Any damage to property, no matter how nominal, satisfies this element

of the statute, and

5. That defendant acted recklessly with respect to the infliction of this bodily

injury/damage to property.

6

5 See N.J.S.A. 2C:11-1a.

6 If the infliction of bodily injury had been defendant's purpose or intention when damaging/removing/impairing

the operation of the air traffic device, defendant would also be exposed to prosecution under assault statutes. Reckless

conduct which causes bodily injury is also prosecutable as an assault. See N.J.S.A. 2C:12-1a(1).

CRIMINAL MISCHIEF - DAMAGE/REMOVAL/

IMPAIRMENT OF AIR TRAFFIC DEVICE

(N.J.S.A. 2C:17-3b(4))

A person acts recklessly when he/she consciously disregards a substantial and unjustifiable

risk. A conscious disregard requires that defendan t actually be aware of th e risk, but that he/she

ignores it anyway. The risk must be of such a nature and degree that, considering the nature and

purpose of defendant's conduct and the circumstances known to him/her, its disregard involves a

gross deviation from the standard of conduct that a reasonable person would observe in the same

situation.7 In other words, for you to find that defendant acted recklessly, you must be satisfied

beyond a reasonable doubt that defendant was aware of a nd disregarded a substantial and

unjustifiable risk that his/her conduct would cause bodily injury/damage to property.

If you find that the State has proved beyond a reasonable doubt a ll five of the elements of

criminal mischief with bodily injury/damage to property, you must find defendant guilty of that

offense. If, however, you find that the State ha s failed to prove beyond a reasonable doubt either

element four (bodily injury/damage to property) or element five (recklessness) but that the State has

proved beyond a reasonable doubt th e first three elements of the offense, you must find defendant

not guilty of criminal mischief with bodily injury/damage to property but must find defendant guilty

of criminal mischief. Finally, if you find that the State has failed to prove beyond a reasonable

doubt any of the first three elements that were explained to you, you must find defendant not guilty

of any form of criminal mischief.

[CHARGE AS FOLLOWS IF SUBMITTING TO JURY THE 2ND DEGREE OFFENSE

OF AIR TRAFFIC DEVICE CRIMINAL MISCHIEF CAUSING A

DEATH AS

WELL AS THE 4TH DEGREE OFFENSE]

If you find that the State has proved beyond a r easonable doubt all three of the elements of

criminal mischief that I have defined for you, you mu st then go on in your deliberations to consider

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

CRIMINAL MISCHIEF - DAMAGE/REMOVAL/

IMPAIRMENT OF AIR TRAFFIC DEVICE

(N.J.S.A. 2C:17-3b(4))

two additional elements. You must determine whether the State has pr oved beyond a reasonable

doubt that:

4. That defendant's damage/removal/impairment of the operation of the air traffic device

caused the death of (name of deceased

); and

5. That defendant acted recklessly with respect to causing this death.

A defendant acts recklessly when he/she consciously disregards a substantial and

unjustifiable risk. A conscious disregard requires that defendant actually be aware of the risk, but

that he/she ignores it an yway. The risk must be of such a nature and degree th at, considering the

nature and purpose of defendant's conduct and the circumstances known to him/her, its disregard

involves a gross deviation from th e standard of conduct that a re asonable person would observe in

the same situation.

8 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 and

unjustifiable risk that his/her conduct would cause the death of another person.

If you find that the State has proved beyond a reasonable doubt a ll five of the elements of

criminal mischief causing a death, you must find defendant guilty of that offense. If, however, you

find that the State has failed to prove beyond a reasonable doubt either element four (death of

another person) or element five (recklessness) but that the State has proved beyond a reasonable

doubt the first three elements of the offense, you must find defendant not guilty of criminal mischief

causing a death but must find defendant guilty of criminal mischief. Finally, if you find that the

State has failed to prove beyond a reasonable doubt any of the firs t three elements that were

explained to you, you must find defendant not guilty of any form of criminal mischief.

8 If causing death had been defendant's purpose or intention when damaging/removing/impairing with the air

traffic device, defendant would also be exposed to prosecution under homicide statutes. Reckless conduct which causes

death is also prosecutable as a homicide (manslaughter). See N.J.S.A. 2C:11-3 and 4.