N.J. Model Criminal Jury Charge, N.J.S.A. 2C:12-1d

Approved 4/6/09

ASSAULT UPON THE INSTITUTIONALIZED ELDERLY

(N.J.S.A. 2C:12-1d)

Defendant is charged in count ________ of th is indictment with Assault by an employee

upon the institutionalized elderly. Defendant is charged with violating a provision of our law

that provides, in pertinent part, that:

A person who is employed by a facility...who commits a simple

assault...upon an institutionalized elderly person... is guilty of a crime.1

In order for you to convict the defendant of this offense, the State must prove the

following elements beyond a reasonable doubt:

1. That the defendant committed a simple assault upon (INSERT VICTIM);

2. That the victim was an institutionalized elderly person;

3. That the defendant was employed by a facility as defined by the law.

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

defendant committed a simple assault.

[CHARGE APPROPRIATE SUBSECTION OF SIMPLE ASSAULT

N.J.S.A. 2C:12-1(a) or N.J.S.A. 2C:12-1(a)(2), as facts warrant]2

(1) CHARGE IF SIMPLE ASSAULT, N.J.S.A. 2C:12-1(a)(1) is the basis of allegation:

A person commits a simple assault if he attempts to cause or purposely, knowingly or

recklessly causes bodily injury to another. In order for you to find the defendant committed a

simple assault, the State must prove, beyond a reasonable doubt:

1. That the defendant attempted to cause or actually caused bodily injury to another.

2. That the defendant acted purpos ely, or knowingly or recklessly.

1 The statute refers to section 2 of P.L. 1977, c. 239, codified at N.J.S.A. 52:27G-2.

2 Under the statute, a defendant cannot be f ound guilty of this offense based on a theory of

simple assault under N.J.S.A. 2C:12-1(a)(3). See N.J.S.A. 2C:12-1(d).

ASSAULT UPON THE

INSTITUT

IONALIZED ELDERLY

(N.J.S.A. 2C:12-1d)

Bodily injury is defined as physical pain, illness or any impairment of the physical

condition.

A person acts purposely with respect to causing bodily injury if it is a person's conscious

object to cause bodily injury. A person acts purposel y with respect to attendant circumstances if

a person is aware of the existence of such circumstances or a person believes or hopes that they

exist. One can be deemed to be acting purposely if one acts with design, with a purpose, with a

particular object, if one really means to do what he/she does.

A person acts knowingly with respect to causing bodily injury if a person is aware that

his/her conduct is of that nature, or that such circumstances exist or a person is aware of a high

probability of their existence. A person acts knowingly with respect to a re sult of his/her conduct

if a person is aware that it is practically certain that his/her conduct will cause bodily injury. One

is said to act knowingly if one acts with knowledge, if one acts consciously, if he/she

comprehends his/her acts.

A person acts recklessly with respect to cau sing bodily injury when a person consciously

disregards a substantial and unjustifiable risk that the material element exists or will result from

his/her conduct. The risk must be of such a na ture and degree that, considering the nature and

purpose of the actor's conduct and the circumstan ces known to the actor its disregard involves a

gross deviation from the standard of conduct th at a reasonable person would observe in the

actor's situation. One is said to act recklessly if one acts with recklessness, with scorn for the

consequences, heedlessly, foolhardily.

The nature of the purpose or knowledge or r ecklessness with which the defendant acted

toward the victim of the assault is a question of fact for you th e jury to decide. Purpose and

knowledge and recklessness are conditions of the mind which cannot be seen and can only be

ASSAULT UPON THE

INSTITUT

IONALIZED ELDERLY

(N.J.S.A. 2C:12-1d)

determined by inferences from conduct, words or acts. It is not nece ssary for the State to

produce a witness or witnesses w ho could testify that the defenda nt stated, for example, that

his/her purpose was to cause bodily injury. It is within your power to find that proof of purpose

or knowledge or recklessness has been furnishe d beyond a reasonable doubt by inferences which

may arise from the nature of the acts and the surrounding circumstances.

For you to find that the defendant caused bodily injury to (insert name of victim) , the

State must prove beyond a reasonable doubt that (he/she) would not have been injured but for the

defendant’s conduct.3

(IF AN ATTEMPT IS ALLEGED, CHARGE APPROPRIATE MODEL CHARGE ON

ATTEMPT, N.J.S.A. 2C:5-1)

-OR-

(2) CHARGE IF SIMPLE ASSAULT, N.J.S.A. 2C:12-1(a)(2) is the basis of allegation:

A person commits a simple assaul t if he negligently causes bod ily injury to another with

a deadly weapon. In order for you to find the defendant committed a simple assault, the State

must prove, beyond a reasonable doubt

1. that the defendant caused bodily injury to another;

2. that the defendant caused the bodily injury by use of a deadly weapon;

3. that the defendant acted negligently.

Bodily Injury is defined as physical pain, il lness, or any impairment of the physical

condition of another.

3 N.J.S.A. 2C:2-3a(1). If causation is contested, a fuller explanation of causation may be

needed. N.J.S.A. 2C:2-3.

ASSAULT UPON THE

INSTITUT

IONALIZED ELDERLY

(N.J.S.A. 2C:12-1d)

Deadly Weapon is defined as any firearm or other weapon, device, instrument, material

or substance, whether animate or inanimate, which in the manner it is used or is intended to be

used is known to be capable of producing death or serious bodily injury.

A person acts negligently with respect to causing bodily injury when he/she should be

aware of a substantial and unjustif iable risk that the material element exists or will result from

his/her conduct. The risk must be of such a nature and degree that the actor's failure to perceive

it, considering the nature and purpose of his/her conduct and the circumstance known to him/her,

involves a gross deviation from the standard of care that a reasonable person would observe in

the actor's situation. A person is said to act negl igently if the person acts with carelessness, when

compared to how a reasonable person should act under the circumstances as they exist at the time

of the assault.4

[RESUMPTION OF MAIN CHARGE]

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

victim was an institutionalized elderly person.

An institutionalized elderly person is defined as any person 60 years of age or older, who

is a patient, resident or client of any facility.

5

I will now define facility for you.

A facility is defined as any facility or in stitution, whether public or private, offering

health or health related services for the inst itutionalized elderly, an d which is subject to

4 State v. Brown, 228 N.J.Super. 211 (App Div 1988), rev'd on other grounds 118 N.J. 595

(1990).

5 N.J.S.A. 52:27G-2(i).

ASSAULT UPON THE

INSTITUT

IONALIZED ELDERLY

(N.J.S.A. 2C:12-1d)

regulation, visitation, inspection, or supervision by any governm ent agency. In this case, the

State alleges the facility was (INSERT TYPE OF FACILITY ALLEGED.)6

Government Agency means any department, division, office, bureau, board, commission,

authority, or any other agency or instrumentality created by the State or to which the State is a

party, or by any county or municipality, which is responsible for the regulation, visitation,

inspection or supervision of facilities, or which provides services to patients, residents or clients

of facilities.

7

A person is considered to be an institutionali zed elderly person if (he/she) is a patient,

resident or client of any facilit y. A person is considered to be a patient, resident or client of a

facility if (he/she) is receiving treatment or care in a facility in all its aspects, including, but not

limited to, admission, retention, confinement, co mmitment, period of residence, transfer,

discharge and any instances directly related to such status.8

Thus, to prove the second element, the St ate must prove beyond a reasonable doubt that

the victim was 60 years of age or older when the assault occurred, and that (he/she) was a

patient, resident or client of a facility as I have defined those terms for you.

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

was employed by the facility when the assault occurred.9

I have already defined facility for you.

6 N.J.S.A. 52:27G-2(f) also states that “Facilities include, but are not limited to, nursing

homes, skilled nursing homes, intermediate care f acilities, extended care facilities, convalescent

homes, rehabilitation centers, residential health care facilities, special hospitals, veterans'

hospitals, chronic disease hospita ls, psychiatric hospitals, mental hospitals, mental retardation

centers or facilities, day care facilities for the elderly and medical day care centers.”

7 N.J.S.A. 52:27G-2(g).

8 N.J.S.A. 52:27G-2(l).

9 N.J.S.A. 52:27G-2(f).

ASSAULT UPON THE

INSTITUTIONALIZED ELDERLY

(N.J.S.A. 2C:12-1d)

If you find that the State has proved each element of the offense beyond a reasonable

doubt, then you must find the defendant guilty. If , however, you find that th e State has failed to

prove any element of the offense beyond a reas onable doubt, then you must find the defendant

not guilty.