Under N.J.S.A. 2C:2-2b(3), a person acts recklessly
with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his
conduct. The risk must be of such a nature and degree
that, considering the nature and purpose of the actor’s
conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of
conduct that a reasonable person would observe in the
actor’s situation. A defendant acts recklessly under the
Code’s definition when he disregards a risk known to
him; he must “consciously disregard” the risk. See State
v. Niemeyer, 195 N.J. Super. 559, 562 (Law Div. 1994)
(recklessness requires some measure of awareness or
knowledge of risk). Thus, in State v. Parsons, 270 N.J.
Super. 213 (App. Div. 1994), the court ruled that in
order to be guilty of recklessly causing injury to a police
officer under 2C:12-1, defendant had to disregard the
risk of injury, and defendant had to know the victim was
an officer.
In determining whether a defendant acted recklessly,
the jury may take into account all of the relevant conduct.
State v. Powell, 84 N.J. at 320-324. Defendant’s support
for an instruction based on recklessness only need be
plausible; it need not be the most probable explanation.
Id. at 322. Note that for aggravated manslaughter,
2C:11-4(a), and aggravated assault, 2C:12-1(b)(1), the
Code requires a higher degree of recklessness than that in
2C:2-2b(3) -- that is, the defendant must act recklessly
under circumstances manifesting extreme indifference to
the value of human life. See generally, State v. Farrell, 250
N.J. Super. 386, 390 (App. Div. 1991); State v. Curtis,
195 N.J. Super. 354, 364-365 (App. Div. 1984), certif.
denied, 99 N.J. 212 (1984).
Under N.J.S.A. 2C:2-2b(4), a person acts
negligently with respect to a material element of an
offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature
and degree that the actor’s failure to perceive it,
considering the nature and purpose of his conduct and
the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable
person would observe in the actor’s situation.
III. CONSTRUCTION OF STATUTES WITH
RESPECT TO CULPABILITY REQUIREMENTS
The Code contains specific provisions regarding
statutory interpretation of culpability requirements.
N.J.S.A. 2C:2-2c(1), (2), (3).If a statute includes a prescribed kind of culpability
but fails to distinguish among the material elements of
the offense, the indicated kind of culpability applies to all
of the material elements unless a contrary purpose plainly
appears. N.J.S.A. 2C:2-2c(1).The definition of “material element of an offense”
appears in N.J.S.A. 2C:1-14i, and it pertains to the harm
or evil, incident to conduct, sought to be prevented by
the law defining the offense or to the existence of a
justification or excuse for such conduct. Thus, the mens
rea requirement for the statute at issue must relate to
every aspect of the defendant’s conduct, the surrounding
circumstances and the results. For example, in State v.
Florez, 134 N.J. 570, 595 (1994), the Supreme Court
held that the quantity of drugs possessed by a defendant
is a material element under N.J.S.A. 2C:35-5, possession
with intent to distribute. However, the Appellate
Division has ruled that defendant’s knowledge of the
weight of the drugs in his possession is not a material
element. State v. Moore, 304 N.J. Super. 135, 146 (App.
Div. 1997); State v. Torres, 236 N.J. Super. 6, 9-13 (App.
Div. 1989). The activities that define a leader of a
narcotics-trafficking network under 2C:35-3 have been
deemed to be material elements. State v. Burgess, 154 N.J.
181, 185 (1998). See also State v. Moll, 206 N.J. Super.
257, 259-260 (App. Div. 1986), certif. denied, 103 N.J.
498 (1986).When the law provides that a particular kind of
culpability suffices to establish an element of an offense,
this element is also established if a person acts with a
higher kind of culpability. N.J.S.A. 2C:2-2c(2). The
rule of this subsection is simple: if the Legislature
requires a particular culpability level, then that level or
any higher level will satisfy the requirement. Cannel,
Criminal Code Annotated, Comment N.J.S. 2C:2-2
(Gann 2000). In a related vein, if alternative kinds of
mental states were proscribed for an offense, pleading the
most serious culpability state suffices for submitting
lesser kinds of culpability to the jury. State v. Murphy,
185 N.J. Super. 72, 76 (Law Div. 1982).Although a statute fails to express a culpable mental
state, it may nevertheless be required if the proscribed
conduct necessarily involves such a culpable mental state.