N.J. Model Criminal Jury Charge, N.J.S.A. 2C:2-6c(1)(c)

Approved 6/7/21

LIABILITY FOR ANOTHER’S CONDUCT

(N.J.S.A. 2C:2-6(c)(1)(c))

ACCOMPLICE – LEGAL DUTY

The indictment charges (OR T he State alleges ) that the defendant is legally responsible

for the criminal conduct of X1, in violation of a law which reads in pertinent part as follows:

A person is guilty of an offense if it is committed by his own

conduct or the conduct of another person for which he is legally

accountable, or both.

A person is legally accountable for the conduct of another person wh en he/she is an

accomplice of such other person in the commission of an offense. This provision of the law

means that not only is the person who actually commits the criminal act responsible for it but one

who is legally accountable as an ac complice is also responsible as if he/she committed the

crime(s) himself/herself.

A person is an accomplice of another person in the commission of an offense if, with the

purpose of promoting or facilitating the commission of the offense, he/she, having a legal duty to

prevent the commission of the offense, fails to make proper effort to do so.

2

In this case, the State alleges that the defendant is guilty of the crime(s) committed by X

because he/she acted as his/her accomplice. In order to find the defendant guilty, the State must

prove beyond a reasonable doubt each of the following elements:

1. That X committed the crime(s) of ___________________;

2. That this defendant had a legal duty to prevent the commission of the crime;

3. That this defendant failed to make proper effort to prevent the commission of the

crime; and

4. That this defendant ’s purpose in failing to make proper effort to prevent the

commission of the crime was to promote or facilitate the crime.3

1 X can be a named person or an unknown person.

2 N.J.S.A. 2C:2-6(c)(1)(c). Although this charge is written to provide complete instructions if (1)(c) is a

stand-alone charge, it can also be inserted in either of the charges (ACCOMPLICE – LESSERS and NO

LESSERS) on accomplice liability that ordinarily would be used if (1)(a) or (b) were the only types

charged.

3 State v. Ramirez, 246 N.J. 61, 65 (2021).

LIABILITY FOR ANOTHER’S CONDUCT

(N.J.S.A. 2C:2-6(c)(1)(c)) ACCOMPLICE – LEGAL DUTY

The f irst ele ment that the State must prove beyond a reasonable doubt is that X

committed the crime of ___________________. I will now explain the elements of this/these

offense(s) [OR: I have already explained the elements of the offenses when I instructed you on

the law regarding count(s) ___ of the indictment].

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

had a legal duty to prevent the commission of the crime(s). A person having a legal duty

includes a natural parent, adoptive parent, resource family parent, step-parent or any other person

who has assumed responsibility or upon whom the re is a legal duty of protection. A person who

has such a legal duty includes any person who assumes a general and ongoing responsibility or

who establishes a continuing or regular supervisory or caretaker relationship with the person to

be protected.4

The legal duty to prevent the commission of the crime may be formal or it may arise from

informal arrangements. It may be based, not only on a parental relationship or legal custody, but

also on less structured relations such as cohabitation. T emporary, brief, or occasional caretaking

functions such as irreg ular or infrequent babysitting c ould not constitute proof be yond a

reasonable doubt of a legal duty. Supervision on a regular and continuing basis over extended

periods of time and engage ment in matters that are generally committed to full-time caregivers

could prove such a legal duty beyond a reasonable doubt.

The third e lement tha t the State must prove beyond a reasonable doubt is that this

defendant failed to make proper effort to prevent the commission of the offense. A proper effort

is one that is objectively reasonable under the circumstances.5

The fourth element tha t the St ate must prove beyond a reasonable doubt is that this

defendant’s purpose in failing to make proper effort to prevent the commission of the crime was

to promote or facilitate the crime. O ne acts purposely with respect to hi s/her conduct or a result

thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a

result. A person acts purposely with respect to attendant circums tances if he/she is aware of th e

existence of such circum stances or he/she believes or hopes that they exist. “With purpose,”

4 State v. Galloway, 133 N.J. 631, 659-62 (1993). See also, N.J.S.A. 2C:2-1(b)(2) for other examples of

“duty to perform … otherwise imposed by law.”

5 See, for instance, N.J.S.A. 2C:17-2(d) (“take reasonable measures to prevent or mitigate …”).

LIABILITY FOR ANOTHER’S CONDUCT

(N.J.S.A. 2C:2-6(c)(1)(c)) ACCOMPLICE – LEGAL DUTY

“designed,” “with design,” or equivalent terms have the same meaning.

Whether the defendant's purpose in failing to make proper effort to prevent the

commission of the crime was to promot e or facilitate the crime is a question of fact for you to

decide. Purpose is a condition of the mind which cannot be seen and can only be determined by

inference from conduct, words , or acts. It is not necessary for the State to produce a witness or

witnesses who could testify that the defendant stated, for example, that his/her purpose was to

cause the death of the victim. It is within your power to find that proof of purpose has been

furnished beyond a reasonable doubt by inference which may arise from the nature of the acts

and the surrounding circumstances.

If you find that the defendant, with the purpose of promoting or facilitating the

commission of the offense(s), and having a legal duty to prevent the commission of the crim e(s),

failed to do so, then you should consider him/her as if he/she committed the crime(s)

himself/herself. In order to convict the defendant as an accomplice to the crime(s) charged, you

must find that the defen dant had the purpose to participate in that particular crime(s). He/She

must act with the purpose of promoting or facilitating the commission of the substantive crime(s)

with which he/she is charged.

It is not sufficient to prove only that the d efendant had knowledge that another person

was going to commit the crime(s) charged. The State must prove that it was defendant’s

conscious object that the specific conduct charged be committed.6

To prove the defendant’s criminal lia bility, the State does not have to prove his/her

accomplice status by direct evidence of a formal plan to commit a crime. There does not have to

be verbal agreement by all who are charged. The proof may be circumstantial. P urpose can be

established from conduct as well as the spoken words.

(READ IF APPROPRIATE)

Mere presence at or near the scene does not make one a participant in the crime, nor does

the failure of a spectator to interfere make him/her a participant in the crime. It is, however, a

circumstance to be considered with the other evidence in determining whether he/she was

present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether

6 Ramirez, supra, at 69.

LIABILITY FOR ANOTHER’S CONDUCT

(N.J.S.A. 2C:2-6(c)(1)(c)) ACCOMPLICE – LEGAL DUTY

presence has any probative value depends upon the total circumstances. To constitute guilt there

must exist a community of purpose for the crime committed.

While mere presence at the scene of the perpetration of a crime does not render a person

a participant in it, proof that one is present at the scene of the commission of the crime, without

disapproving or opposing it, is evidence from which, in connection with other circumstances, it

is possible for the jury to infer that he/she assented thereto, lent to it his/ her countenance an d

approval and was thereby aiding the same. It depends upon the totality of the circumstances as

those circumstances appear from the evidence.

(RESUME ACCOMPLICE CHARGE)

An accomplice may be convicted on proof of the commission of a cr ime or of his/her

complicity therein even though the person who it is claimed committed the crime(s) has not been

prosecuted or convicted or has been convicted of a different offense or degree of offense or has

an immunity from prosecution or conviction or has been acquitted.

In sum, in order to find the defendant guilty of committing the crime(s) of

_______________________, the State must prove each of the following elements beyond a

reasonable doubt:

1. That X committed the crime(s) of ______________________________;

2. That this defendant had a legal duty to prevent the commission of the crime;

3. That this defendant failed to make proper effort to prevent the commission of the

crime; and

4. That defendant’s purpose in failing to make prope r effort to pr event the

commission of the crime was to promote or facilitate the crime.

(Again, remind the jury to consider the accomplice status separately as to each charge).

If you find that the State has proven each and every one of the elements that I have

explained to you beyond a reasonable doubt, then you must find the defendant guilty. If on the

other hand you find that the State has failed to prove one or more of these elements beyond a

reasonable doubt, then you must find the defendant not guilty.