Bad Checks

Model Jury charge (N.J.S.A. 2C:21-5)

If someone is Indicted for BAD CHECKS, the Judge will read portions of the following to the Jury. They are called Request to Charge. If the amount of check is less than $200.00, the case will be heard in the municipal court "The defendant (name) has been charged with the crime of issuing (or passing) a bad check (or similar sight order), in that the defendant allegedly:

(Read Indictment)The pertinent part of the statute on which this indictment is based reads as follows:

"A person who issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee, commits an offense."

As used in the statute, the word "issue" means to put into circulation.1 The word "pass" means to move from one , person to another, or hand from one person to another.2 A "check" is a draft drawn on a bank payable on demand.3 , [Where appropriate, charge the following: A "sight order" is an instrument for an immediate collection of money.4 A , "drawee" is the financial institution at which the issuer had, or made representation (he/she) had, an account at the , time the check or order was issued or passed. , The State must prove the following elements beyond a reasonable doubt:

1) The defendant knowingly issued or passed a check [or, where appropriate, "sight order"] for the , payment of money; and

(2) The defendant knew at the time (he/she) issued or passed it, that it would not be honored by the drawee.5

Knowingly. A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances , if the person is aware that (his/her) conduct is of that nature, or that such circumstances exist, or the person is aware , of a high

probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if the person is aware that it is practically certain that (his/her) conduct will cause such a result.

You may infer that the issuer knew that the check [or, where appropriate, "sight order"] would not be paid, if you , find, either:

(a) The issuer had no account with the drawee at the time the check [or, where appropriate, "sight order"] , was issued; or (b) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and , the issuer failed to make good within 10 days after receiving notice of that refusal or after notice has been , sent to the issuer's last known address. Notice of refusal may be given to the issuer orally or in writing in , any reasonable manner by any person.6

That is, if you find that the issuer had no account with the drawee at the time the check [or, where appropriate, "sight order"] was issued, or payment was refused by the drawee for lack of funds, upon presentation of the check , [or, where appropriate, "order"] within 30 days of issue, and the issuer failed to make good within 10 days after , receiving reasonable written or oral notice of that refusal or after reasonable notice has been sent to the issuer's last , known address, you may then conclude, but are not required to conclude, that the issuer had knowledge the check , [or, where appropriate, "sight order"] would not be paid., If you find that the State has proven all these elements beyond a reasonable doubt, then you may return a verdict of, guilty. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable , doubt, then you must return a verdict of not guilty., If you find that the State has proven each of the elements of the crime beyond a reasonable doubt, then the State has , the burden of proving beyond a reasonable doubt, the amount of the check [or, where appropriate, "sight order"]. , You must specify if the amount of the check [or, where appropriate, "sight order"] is: (a) $75, 000.00 or more;

(b) $1, 000.00 or more but less than $75, 000.00; (c) $200.00 or more but less than $1, 000.00; or (d) Less than $200.00."

1 N.J.S.A. 12A:3-102.

2 Black's Law Dictionary.

3 N.J.S.A. 12A:3-104.

4 United Benefit Fire Insurance Co. v. First National Bank of Arizona, Phoenix, 405 P.2d 488 (l965).

5 These inferences do not apply in the case of a post-dated check or similar sight order.

6 Contrary to pre-Code law, the State is not required to prove that the defendant intended to defraud the victim. The State need only prove that the defendant knew that the check (or similar sight order) would not be honored. See, Commonwealth v. Frank, 468 A.2d 1131 (Pa. Super. 1983) and Commonwealth v. Mutnik, 486 Pa. 428, 406 A.2d 516 (1979) which define the Pennsylvania bad check statute which, as the Code statute, is based upon the Model Penal Code. See, also, State v. Passafiume, 184 N.J. Super. 447, 449 (App. Div. 1982).



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