N.J. Model Criminal Jury Charge, N.J.S.A. 2C:33-4

Revised 1/9/12

HARASSMENT

(Lesser-Included Offense)

(N.J.S.A. 2C:33-4)

The law requires that the Court instruct the jury with respect to possible (lesser) included

offenses, even if they are not contained in the indictment. Just because the Court is instructing

you concerning these offenses does not mean that the Court has any opinion one way or another

about whether the defendant committed these, or any, offenses. You should consider these

offenses along with those for which the defendant is indicted. However, you are not to render a

verdict on these offenses or answer the questio ns on the verdict sheet unless you find that the

State has failed to meet its burden with regard to the offense(s) in the indictment.

The relevant portions of the statute dealing with harassment read as follows:

[Read only relevant parts of statute]

A person commits an . . . offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or

communications anonymously or at extremely inconvenient

hours, or in offensively coarse language, or any other manner

likely to cause annoyance or alarm;

b. Subjects another to stri king, kicking, shoving, or other

offensive touching, or threatens to do so; or

c. Engages in any other c ourse of alarming conduct or of

repeatedly committed acts with purpose to alarm or seriously

annoy such other person.

1

For you to find the defendant guilty of this offense, the State must prove the following

elements beyond a reasonable doubt:

1 See State v. B.H., 290 N.J.Super. 588, 597 (App. Div. 1996), rev’d in part and aff’d in part, 149 N.J. 564

(1997) (The subsections of the statute “address categories of conduct which can be broadly described as

communications, physical contact, and course of conduct.”)

HARASSMENT

(Lesser-Included Offense)

(N.J.S.A. 2C:33-4)

[Include only relevant alternative elements and related explanations]

a. (1) That the defendant made one or more co mmunications anonymously, or at

extremely inconvenient hours, or in offensively coarse language, or in any

other manner likely to cause annoyance or alarm; and

(2) That the defendant’s purpose was to harass (name of victim), in other

words, to annoy or alarm (name of victim).

You must determine whether the evidence proves beyond a reasonable doubt that the

defendant made one or more communications in one or more of the ways described, and whether

it was the defendant’s purpose to annoy or alarm (the victim).

If you find that one or more communications were made in a manner likely to cause

annoyance or alarm, but that th ey were not made anonymously or at extremely inconvenient

hours or in offensively coarse language, th en the manner of communication used by the

defendant must be one that intr uded into the victim’s legitimate expectations of privacy from

such communications.2

OR

b. (1) That the defendant threatened to (or did)3 strike, kick, shove, or otherwise

offensively touch (name of victim); and

(2) That the defendant’s purpose was to harass (name of victim), in other

words, to annoy or alarm (name of victim).

2 The Supreme Court has limited the scope of the “catch-all” provision of N.J.S.A. 2C:33-4(a) – “any other

manner likely to cause annoyance or alarm” – to preserve the statute’s constitutionality. The Court held that a

communication under that provision must intrude upon a legitimate expectation of privacy. State v. Hoffman , 149

N.J. 564, 583 (1997). Earlier in the same case, the Appellate Division had held that the degree of annoyance under

subsection (a) must be “serious,” not merely nettlesome or vexing. State v. B.H. , 290 N.J. Super . at 598. The

Supreme Court rejected this holding, noting that subsection (a) of the statute does not in clude the word “serious,”

while subsection (c) does. See Hoffman, 149 N.J. at 575-81.

3 This model charge focuses primarily on verbal con duct because harassment is most often requested as a

lesser-included offense for charges that do not involve physical contact, such as terroristic threats or stalking.

HARASSMENT

(Lesser-Included Offense)

(N.J.S.A. 2C:33-4)

OR

c. (1) That the defendant engaged in a course of alarming conduct or of

repeatedly committed acts; and

(2) That the defendant’s purpose was to harass (name of victim), that is, to

alarm or seriously annoy (name of victim).

With respect to a course of alarming conduct or repeatedly committed acts, the conduct

or acts must be such that they are intended to cause alarm or serious annoyance. It is not

sufficient if the course of conduct or repeated acts are merely irritating, nettlesome, or vexing.4

A purpose to harass must be coupled with th e performance of at l east one of the acts

listed in the statute. In determining a defendant ’s purpose, you must apply the definition of the

word “purpose” and the related instructions that were previously given when you were instructed

regarding the elements of the offense of (terroristic threats) (stalking) as charged in

the indictment. [The State alleges that the defendant’s purpose was . [Charge

where appropriate: The defendant contends that he/s he did not have a purpose to harass.

Instead, he/she contends .]

If the State has failed to prove any elem ent of harassment beyond a reasonable doubt, you

must find the defendant not guilty.

On the other hand, if the State has proven each of the elements of harassment beyond a

reasonable doubt, then you must find the defendant guilty of that offense.

4 The Supreme Court has limited the scope of the “catch-all” provision of N.J.S.A. 2C:33-4(a) – “any other

manner likely to cause annoyance or alarm” – to preserve the statute’s constitutionality. The Court held that a

communication under that provision must intrude upon a legitimate expectation of privacy. State v. Hoffman , 149

N.J. 564, 583 (1997). Earlier in the same case, the Appellate Division had held that the degree of annoyance under

subsection (a) must be “serious,” not merely nettlesome or vexing. State v. B.H. , 290 N.J. Super . at 598. The

Supreme Court rejected this holding, noting that subsection (a) of the statute does not in clude the word “serious,”

while subsection (c) does. See Hoffman, 149 N.J. at 575-81.