New Jersey Jury Instructions

NJ 2C:3-6(a) and (b) DEFENSE OF PREMISES (N.J.S.A.)

A section of our criminal law provides that ……… the use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises.

A reasonable belief is one that is not recklessly or negligently held; it is a belief that would be held by a person of ordinary prudence and intelligence situated as defendant was.  As the statute indicates, the defense of property exonerates a person who uses force in the reasonable belief that such action was necessary to prevent or terminate the commission or attempted commission of a criminal trespass, even though his/her belief was later proven mistaken.  Accordingly, the law requires only a reasonable, not necessarily a correct, judgment.

A person commits a criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof.

Our criminal law further provides that, in defense of premises, the use of force is justifiable………only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor reasonably believes that (a) such request would be useless; (b) it would be dangerous to himself or another person to make the request or (c) substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

The use of force to defend premises is not justifiable if the actor knows that the exclusion of the trespasser will expose him/her to substantial danger of serious bodily harm.

Serious bodily harm is defined as:

Bodily harm 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 [WHERE APPLICABLE: or which results from aggravated sexual assault or sexual assault].

[USE OF DEADLY FORCE]

The use of deadly force is not justifiable in the defense of premises unless the actor reasonably believes that [CHOOSE APPLICABLE PROVISION]:

(a) The person against whom the force is used is attempting to dispossess him/her of his/her dwelling otherwise than under a claim of right to its possession.  A dwelling means any building or structure, though movable or temporary, or a portion thereof, which is for the time being the actor’s home or place of lodging….

 [If applicable, insert Model Jury Charge on Claim of Right, pursuant to N.J.S.A. 2C:20-2c.].

OR

(b)The person against whom the force is used is attempting to commit or consummate [CHOOSE: arson, burglary, robbery or other criminal theft or property destruction.]  [At this point, instruct the jury on applicable offense, along with proper instruction on attempt].

Deadly force is defined as force which the actor uses with the purpose of causing or which he knew created a substantial risk of causing death or serious bodily harm.

[CHARGE WHERE APPROPRIATE: Purposely firing a firearm in the direction of another person or at a vehicle, building or structure in which another person is believed to be constitutes deadly force.

]

[CHARGE WHERE APPROPRIATE: A threat to cause death or serious bodily harm by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he/she will use deadly force if necessary, does not constitute deadly force.

]

However, even in the instance(s) just mentioned, the use of deadly force is not justified unless the actor reasonably believes that [CHOOSE APPLICABLE PROVISION]:

(i) the person against whom it is employed has employed or threatened deadly force against or in the presence of the actor.

OR

(ii) the use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his/her presence to substantial danger of bodily harm.  “Bodily harm” means physical pain, or temporary disfigurement, or impairment of physical condition.

If an actor is within a dwelling at the time that he/she used deadly force to prevent the commission or consummation of [crime about which the jury has been instructed], this fact alone is sufficient to establish that he/she reasonably believed that he/she was in substantial danger of bodily harm.  In other words, if defendant was within a dwelling when he/she used deadly force against [name of alleged victim], you must find that he/she reasonably believed that he/she was in substantial danger of bodily injury unless the State disproves that finding beyond a reasonable doubt.

I have already defined the term “dwelling” for you.

[IN ALL CASES INVOLVING USE OF DEADLY FORCE]: I have already defined “deadly force” and “reasonable belief” for you.