N.J. Model Criminal Jury Charge, N.J.S.A. 2C:30-2

Revised 9/11/06

OFFICIAL MISCONDUCT

(N.J.S.A. 2C:30-2)

The State alleges that defendant has committed official misconduct by the following

indictment:

[READ INDICTMENT]

A public servant is guilty of official misconduct when, with

purpose to obtain a benefit for himself or another or to injure or to

deprive another of a benefit:

a. He commits an act relating to his office but

constituting an unauthorized exercise of his official

functions, knowing that such act is unauthorized or

he is committing such act in an unauthorized

manner; or

b. He knowingly refrains from performing a duty

which is imposed upon him by law or is clearly

inherent in the nature of his office.

So, for (defendant) to be guilty of official misconduct, the State must prove each of the

following elements beyond a reasonable doubt:

(1) That the defendant was a public servant at the relevant time(s);

(2) That he/she committed an act rela ting to his/her office knowing that it was

unauthorized [OR committed the act in an unauthorized manner

knowing that the manner was unauthorized] [OR knowingly

refrained from performing a duty which is imposed upon him/her by

law or which is clearly inherent in the nature of his/her office]; and

(3) That his/her purpose in so acting [OR refraining] was to benefit

himself/herself or another or to injure or deprive another of a benefit.

First, the State must prove beyond a reas onable doubt that (defe ndant) was a public

servant when the offense allegedly occurred. A public servant is any officer or employee of

OFFICIAL MISCONDUCT

(N.J.S.A. 2C:30-2)

government, including any branch, subdivision, or agency of this State or any locality within it.1

Second, the State must prove beyond a reasonable doubt that (defendant) committed an

act relating to his/her office [OR committed the act in an unauthorized manner] [OR

refrained from performing an act required to be performed as part of his/her office] . The

"act" in question must relate to the public servant's office. The commission of the act [OR the

refraining from performing the act] must constitute an unauthorized exercise of his/her official

functions.2 The public servant must know that the act [OR refraining from performing the

act] was unauthorized or that the act [OR refraining] was done in an unauthorized manner. For

an act to be related to a public servant’s office it must be connected to his/her official duties. An

act is not connected to a public servant’s official duties merely because a public servant performs

the act.

An act is “unauthorized” if it is committed in breach of some prescribed duty of the

public servant’s office. This duty must be official and non-discretionary, imposed upon the

public servant by law (such as statute, municipal ch arter or ordinance) or clearly inherent in the

nature of his/her office. The duty to act must be so clear that the public servant is on notice as to

the standards that he/she must me et. In other words, the failure to act must be more than a

failure to exhibit good judgment. In addition, the State must prove that (defendant) knew of the

existence of his/her non-discretionary duty to act prior to the incident in question.

3 Not every

unauthorized act committed by a public servant rises to the level of official misconduct; an

unauthorized act amounts to official misconduct onl y if the public servant knew at the time that

his/her conduct was unauthorized and unlawful.

As to (defendant’s) alleged conduct, the St ate must prove that there was a clear duty

1 See N.J.S.A. 2C:27-1. Definitions. In Chapters 27 through 30, unless a different meaning plainly is

required: b."Government" includes any branch, subdivision or agency of the government of the State or any locality

within it; g. "Public servant" means any officer or empl oyee of government, including legislators and judges, and

any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the

term does not include witnesses.

2 An "act" may be unauthorized because it is declared to be such by statute, ordinance, rule, regulation or

otherwise.

3 The New Jersey Penal Code - Volume II: Commentary (2C:30-2). Subsection b, the "omission to act"

element refers to a public servant who consciously refrains from performing an official non-discretionary duty,

which duty is imposed upon him by law or which is clearly inherent in the nature of his office. In addition, the

public servant must know of the existence of such non-discretionary duty to act. Thus, such duty must be either one

that is imposed by law, or one that is unmistakably inherent in the nature of the public servant's office, i.e., the duty

to act is so clear that the public servant is on notice as to the standards that he must meet . In other words, the failure

to act must be more than mere breach of good judgment. Absent a duty to act, there can be no conviction.

OFFICIAL MISCONDUCT

(N.J.S.A. 2C:30-2)

imposed on (defendant) to act [OR to refrain] as alleged. That is to say, there must have been a

body of knowledge, such as applicable law, by which (defendant) could regulate and determine

the legality of his/her conduct. One cannot be convicted of official misconduct if the official

duties imposed are themselves unclear. So, if you conclude beyond a reasonable doubt that

(defendant) was required to act [OR to refrain] by statute, rule, or regu lation, and he/she failed

to do so, this element will be satisfied.

[SELECT APPROPRIATE ALTERNATIVE]

The act(s) [OR refraining] in question need not be criminal in na ture. Proof of a

criminal act is not required to find (defendant) guilty of this offense.4

OR

As you know, (defendant) is charged with other criminal offenses. The State alleges that

these other offenses constitute the basis for the charge of official misconduct. You must consider

each charge separately, based on the evidence produced in support of that charge. The defendant

may be found guilty of official misconduct, even where he/she is acquitted of the underlying

criminal charge, if the State has proven his/ her guilt of official misconduct beyond a reasonable

doubt.

A person acts knowingly as to the nature of his/her conduct or the attendant

circumstances if he/she is aware that his conduct is of that nature, or that such circumstances

exist, or he/she is aware of a high probability of their existence. One acts knowingly as to a

result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will

cause such a result. On e acts knowingly if one act s with knowledge, if one acts consciously, if

one comprehends his/her acts.

A state of mind is rarely susceptible of dir ect proof, but must ordi narily be inferred from

the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused

said that he/she had a certain stat e of mind when he/she engaged in a particular act. It is within

your power to find that such proof has been furnished beyond a reasonable doubt by inference

which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and

did at the particular time and place, and from all the surrounding circumstances.

Third, the State must prove beyond a reasonable doubt that the act [OR refraining] in

question was done purposely to benefit either (defendant) or another, or to harm, injure or

4 State v. Parker, 124 N.J. 628 (1991), cert. denied, 509 U.S. 939 (1992).

OFFICIAL MISCONDUCT

(N.J.S.A. 2C:30-2)

deprive another of a benefit. Benefit means a gain or advantage, or anything regarded by the

beneficiary as a gain or advantage, including a p ecuniary benefit or a benefit to any other person

or entity in whose welfare he/she is interested . Harm means loss, disadvantage, or injury, or

anything so regarded by the person affected, including loss, disadvant age, or injury to any other

person or entity in whose welfare he/she is interested. Here, the State alleges that the benefit is

.

A person acts purposely with respect to the nature of his/her conduct or a result thereof if

it is the person’s conscious object to engage in conduct of that nature or to cause such a result. A

person acts purposely with respect to attendant circumstances if he /she is aware of the existence

of such circumstances or the individual believes or hopes that they exist. One acts purposely if

one acts with design, with a purpose, with a partic ular object, if he/she r eally means to do what

he/she does.

A state of mind is rarely susceptible of dir ect proof, but must ordi narily be inferred from

the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused

said that he/she had a certain stat e of mind when he/she engaged in a particular act. It is within

your power to find that such proof has been furnished beyond a reasonable doubt by inference

which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and

did at the particular time and place, and from all the surrounding circumstances.

In conclusion, if the State has proven each element beyond a reasonable doubt, you must

find (defendant) guilty of official misconduct. On the other hand, if the State has failed to prove

any element beyond a reasonable doubt, you must find him/her not guilty.

[IF THE STATE ALLEGES THAT THE BENEFIT IS PECUNIARY, ADD]

If the State has proved each element of the crime beyond a reasonable doubt, you must

determine the fair market value of the bene fit involved. The St ate must prove beyond a

reasonable doubt that the value of the benefit involved [IF APPROPRIATE, ADD: for each

specific instance concerning which you have reached a verdict of guilty] exceeds $200.