N.J. Model Criminal Jury Charge, N.J.S.A. 2C:20-2c

Approved 11/4/96

CLAIM OF RIGHT DEFENSE TO THEFT OFFENSES

(N.J.S.A. 2C:20-2c(2))

In addition to his/her general denial of guilt, the defendant contends that he/she is not

guilty of (insert appropriate offenses such as theft or receiving stolen property) because he/she

was acting pursuant to a claim of right to the property.

Our law provides that it is a defense to prosecution1 for (insert appropriate charge such as

theft or receiving stolen property) that the defendant acted under an honest claim of right to the

property (or service) involved or that he/she had a right to acquire or dispose of the property as

he/she did. An honest claim is one that is ge nuinely, though not necessa rily correctly, believed

by the defendant.

This defense, you should note, is not limited to situations in whic h a defendant believed

he/she owned the property.

2 Rather, it includes those situations in which the defendant honestly,

although not necessarily correctly, believed that he/she had either the right or the authorization to

receive, take, acquire, or dispose of the property.

As I have mentioned to you, since this is a criminal case the burden of proof is on the

State. The defendant is, therefore, not required to prove that he/she acte d pursuant to a claim of

right; rather the burden is on the St ate to prove that the defendant did not act pursuant to a claim

of right. Thus, if the State has proven all the elements of (ins ert offense) beyond a reasonable

doubt and has also proven beyond a reasonable doubt that the defendant did not honestly believe

that he/she had a right to the pr operty or was authorized to recei ve, take, acquire, or dispose of

the property, then you must find the defendant guilty of (insert offense).

On the other hand, if the State has failed to prove beyond a reasonable doubt one or more

elements of (insert offense) or if the State ha s failed to prove beyond a reasonable doubt that the

defendant did not honestly believe he/she had a right to the property or was authorized to

receive, take, acquire, or dispose of the property, then you must find the defendant not guilty.

1 The statute literally states that a claim of right is an “affirmative defense,” but when the charge is given the

term “affirmative” should be deleted in order to avoid any suggestion that the defendant bears the burden of proof.

However, since the defense is an affirmative one, the ch arge should only be given when there is some evidence

which would support it. N.J.S.A. 2C:1-13b(1). See State v. Ippolito, 287 N.J. Super. 375 (App. Div. 1996) where the

Court found an evidential basis for this charge in the defendant’s testimony that his co-defendant told him that the

co-defendant’s boss had approved his taking of the property. (Id

. at 378).

2 State v. Ippolito, supra.