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RESISTING ARREST - FLIGHT ALLEGED (N.J.S.A. 2C:29-2a)

RESISTING ARREST - FLIGHT ALLEGED (N.J.S.A. 2C:29-2a) A person is guilty ... if he, by flight,1 purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest . . . [and uses or threatens to use physical force or violence against the law enforcement officer or another] AND/OR [uses any (other) means to create a substantial risk of causing physical injury to the public servant or another].2 In order to convict the defendant of this charge, the State must first prove beyond a reasonable doubt that defendant committed the basic offense3 of resisting arrest. The four elements of that offense are: 1. That was a law enforcement officer. 2. That was effecting an arrest. 3. That defendant knew or had reason to know that was a law enforcement officer effecting an arrest. 1 P.L. 2000, c. 18, section 2, effective April 28, 2000, creates N.J.S.A. 2C:29-2a(2), which makes it a fourth degree offense to resist arrest "by flight." 2 N.J.S.A. 2C:29-2a(1) to (3). 3 In State v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004), the Court reversed a conviction for third degree resisting arrest because, "although the jury was told which elements had to be found in order for defendant to be guilty of some crime, that is, resisting, resisting by flight, or resisting by physical force, it was not made aware of the significance of its findings in terms of the seriousness, i.e., the grading, of the offense. It should have been clearly apprised of that consequence of its various findings." This language, however, appears to depart from numerous appellate decisions holding that juries should not be instructed as to the sentencing consequences of their decisions in order not to distract them from their essential fact-finding function. Since this portion of Simms was intended to provide the "context that we consider defendant's plain-error argument that the jury should have been charged on self-defense"(id. at 472), the Committee has decided not to specify the degree of each form of resisting arrest in this model charge. Rather, in describing the various elements of the offense, as well as in the final paragraphs that describe the various verdicts that the jury can arrive at, the charge uses the terms "basic offense" (disorderly persons resisting), "more serious offense" (fourth degree resisting with flight), and "the most serious offense charged in the indictment, which is the most serious form of the crime" (third degree resisting pursuant to N.J.S.A. 2C: 29-2a(1)(a) or (b)). RESISTING ARREST - FLIGHT ALLEGED (N.J.S.A. 2C:29-2a) Page 2 of 5 4 See N.J.S.A. 2C:25-19c. 5 Where the issue arises, the jury should also be instructed that the State must prove beyond a reasonable doubt that the law enforcement officer was, in fact, acting under color of law and did announce his intention to arrest. See State v. Kane, 303 N.J. Super. 167, 181-182 (App. Div. 1997). 6 State v. Parsons, 270 N.J. Super. 213, 222 (App. Div. 1994). 7 N.J.S.A. 2C:2-2b(2). 4. That defendant purposely prevented or attempted to prevent from effecting the arrest.

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