N.J. Model Criminal Jury Charge, N.J.S.A. 2C:43-7.2

Approved 6/19/01

SUPPLEMENTAL CHARGE - NO EARL Y RELEASE ACT

(N.J.S.A. 2C:43-7.2)

(To be used in cases in which the count of the indictment does not specifically

require the State to prove beyond a reasonable doubt

any of the NERA elements)1

If you find the defendant 2 guilty of (insert specific crime and count of the indictment) ,

you must then determine whether the State has proven beyond a reasonable doubt that the crime

committed by the defendant is a violent crime. Under our law, a violent crime is a crime in which

the defendant:

(Choose applicable conduct)

used or threatened the imme diate use of a deadly weapon. 3 For purposes of this

determination, “deadly weapon” means any fir earm or other weapon, device, instrument,

material or substance, whether animate or inanim ate, which in the manner it is used or intended

to be used, is known to be capab le of producing death or serious bodily injury. Please note that

this definition of “deadly weapon” differs from the previous definition that I gave you which

included that a deadly weapon coul d be “an object that the vic tim reasonably believed to be

capable of producing death or serious bodily injury.” 4 [insert specific example] To find the

defendant guilty of committing a violent crime, you must find that the defendant used or

threatened the immediate use of a deadly weapon which was actually capable of producing death

or serious bodily injury. “Serious bodily injury ” means bodily injury which creates a substantial

risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ.

5

1 This instruction should be given for any count of an indictment that may trigger the No Early Release Act if

the language of the indictment does not require a specific finding by the jury that the State has proven the necessary

additional NERA elements. State v. Johnson, 166 N.J. 523 (2001). This charge will also be used when the defendant

pleads guilty to an offense, but exercises (his/her) right to a jury trial on the NERA issue.

2 In State v. Rumblin, 166 N.J. 550 (2001), the Supreme Court held that NERA may apply to accomplices as

well as principals.

3 Proof that a defendant used or threatened the use of a deadly weapon is a prerequisite to parole ineligibility

under the No Early Release Act; mere possession does not suffice. State v. Pierre , 329 N.J. Super. 588, 748 A.2d

654 (L.1999), affirmed 330 N.J. Super. 7, 748 A.2d 1129.

4 For cases interpreting “deadly weapon” under the Act, see State v. Ainis , 317 N.J. Super. 127, 721 A.2d

329 (Law Div.1998), AIDS-infected hypodermic needle; State v. Perez , 331 N.J. Super. 497, 752 A.2d 378 (Law

Div. 2000), triggerless handgun that mainta ined permanent character istics of a firearm; State v. Pierre , 330 N.J.

Super. 7, 748 A.2d 1129 (App. Div. 2000), unopened knife; State v. Burford , 163 N.J. 16, 746 A.2d 998 (2000),

stolen automobile; State v. Cheung , 328 N.J. Super . 368, 746 A.2d 38 (App. Div. 2000), BB gun; State v. Grawe ,

327 N.J. Super . 579, 744 A.2d 246 (App. Div. 2000), certif. denied 164 N.J. 560, 753 A.2d 1152, hand-held

hammer; State v. Meyer, 327 N.J. Super. 50, 742 A.2d 614 (App. Div. 2000), certif. denied 164 N.J. 191, 752 A.2d

1292, pellet gun; State v. Austin, 335 N.J. Super. 486 (App. Div. 2000), inoperable BB gun.

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

SUPPLEMENTAL CHARGE -

NO EARLY RELEASE ACT

(N.J.S.A. 2C:43-7.2)

(or)

caused death or serious bodily injury. 6 “Serious bodily injury” means bodily injury which

creates a substantial risk of death or whic h causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.

(or)

used, or threatened the immediate use of physical force during an aggravated sexual

assault or a sexual assault. For purposes of de termining whether the defendant has committed a

violent crime, the meaning of “physical force” is different from the level of force that I have

previously defined and means an independent act of force or violence in addition to the act of

sexual touching or penetration constituting physical force when the victim does not consent.7

If you are satisfied that the State has prove n beyond a reasonable doubt that the defendant

committed a violent crime by (insert applicable elements), you must mark “yes” on the

appropriate section of the verdict sheet which will be supplied to you. If you are not satisfied that

the State has proven beyond a reasonable doubt that the defendant has committed a violent crime

by (insert applicable elements), you must mark “no” on the verdict sheet.

6 (NERA) applies only to violent crimes in which th e actor actually causes death or serious bodily injury.

State v. Staten , 327 N.J. Super. 349, 743 A. 2d 365 (App. Div. 2000), certif. denied 164 N.J. 561, 753 A.2d 1153.

(NERA) applies to vehicular homicide committed by causing death through the reckless operation of a vehicle. State

v. Ferencsik, 326 N.J. Super. 228, 741 A.2d 101 (App. Div. 1999). In State v. Newman , 325 N.J. Super. 556, 740

A.2d 153 (App. Div. 1999), certif. denied 163 N.J. 396, 749 A.2d 370, it was held that reckless manslaughter is a

“violent crime” within the meaning of (NERA) and that the statute that requires “knowingly” as the culpability

element when no culpable mental state is expressly designated in a statute only applies to statutes defining offenses

and does not apply to (NERA). However, to the extent that the holding in State v. Johnson suggests that NERA is a

separate violent crime with additional separate elements, the requirement of a “knowing” level of culpability may

need to be revisited.

7 State v. Thomas, 322 N.J. Super. 512, 731 A.2d 532 (App. Div. 1999), aff’d 166 N.J. 560 (2001).