Liability for another’s conduct (N. J. S. A. 2C: 2-6) accomplice

(RESUME ACCOMPLICE CHARGE)

An accomplice may be convicted on proof of the commission of a crime or of his/her complicity therein even though the person who it is claimed committed the crime has not been prosecuted or has been convicted of a different offense or degree of offense or has an immunity from prosecution or conviction or has been acquitted.

Remember that this defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he/she possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act(s).

In order to convict the defendant as an accomplice to the specific crime(s) charged, you must find that the defendant had the purpose to participate in that particular crime. 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 defendant 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.

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 solicited him/her to commit it/them and/or did aid or agree or attempt to aid him/her in planning or committing it/them.

3. That this defendant’s purpose was to promote or facilitate the commission of the offenses.

4. That this defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.

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

If you find that the State has proven each one of the elements as described above beyond a reasonable doubt, then you must find the defendant guilty of [crime charged]. 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 of [crime charged]. As I have previously instructed, any verdict(s) rendered must be unanimous. All twelve jurors must agree as to guilty or not guilty.

Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of X with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charge(s).

If, however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.

Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else’s.

Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of_________________________. I will now explain the elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion).⁴

In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else’s.

Therefore, in order to find the defendant guilty of the lesser included offense(s) of _________________, the State must prove beyond a reasonable doubt:

1. That X committed the crime(s) of _____________________, as alleged in the indictment, or the lesser included offense of____________________________.

2. That this defendant solicited X to commit [lesser included offense] and/or did aid or agree or attempt to aid him/her in planning to commit [lesser included offense].

3. That this defendant’s purpose was to promote or facilitate the commission of [lesser included offense].

4. That this defendant possessed the criminal state of mind that is required for the commission of [lesser included offense].

If you find that the State has proven each one of these elements 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. As I have previously indicated, your verdict(s) must be unanimous. All twelve jurors must agree as to guilty or not guilty.

1 This charge is intended to address circumstances similar to those in State v. Bielkiewicz, 267 N.J.Super. 520, 533 (App. Div. 1993).

2 Where the evidence indicates a rational basis for accomplice liability, the judge can charge the jury on that basis even though the indictment does not expressly allege a violation of N.J.S.A. 2C:2-6. The court should indicate its intention to so charge, with or without request, before summations so that counsel can prepare to comment on the issue of accomplice liability during summations. See State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 1985).

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

4 In instructing jury as to lesser included offense(s), court should tell jury what view of the facts could lead to this conclusion. See State v. Bielkiewicz, 267 N.J. Super. 520, 533 (App. Div. 1993).

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