Expungement NJSA 2C:52-1
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church worshipers. The police keep a record of all arrests and convictions, even if 20 years old. These "secrets of the past" will soon be open to anyone in New Jersey including credit agencies. Under a proposal by the New Jersey Attorney General, for a $15.00 fee, anybody could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen.
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged' erased under certain instances. For example, if you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased if one year has passed since termination of probation or conclusion of court proceedings.
Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting. THE EXPUNGEMENT PETITION
You should contact an attorney experienced with handling expungements in the Superior Court. Your attorney will prepare an expungement petition which under state law must contain substantial background information, including:
a. Date of Birth and Social Security #
b. Date of Arrest
c. Statute Arrested For and Statute Convicted
d. Original Indictment, Summons, or Complaint Number
e. Petitioner's Date of Conviction or Date of Disposition
f. Court's Disposition of the Matter and Punishment Adopted, if Any
In addition, the Expungement Petition must have an affidavit that states that there are no charges pending and that the petitioner never previously received a prior expungement. The Expungement Petition is filed in the county where the offense took place, not where the defendant lives. Once filed, the Superior Court will set a hearing within 35-60 days.
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people:
1. Superintendent of State Police 2. Attorney General 3. County Prosecutor of the county where the court is located 4. The Chief of Police where the event took place 5. The chief law enforcement officer of any law enforcement agency which participated in the arrest 6. The warden of any institution where the petitioner was confined, and 7. If the disposition was made by a municipal court, upon the municipal court which heard the case.
If you satisfy all other statutory requirements and there is no objection by the entities notified, the court will usually grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge (remove) records of said disposition including evidence of arrest, detention, conviction, and proceedings.
There are additional pleadings which the applicant's attorney must prepare and file. If you have an old offense, it is important that you have the arrest expunged to keep your name and record clean.
Expungement statute was reviewed in recent cases
2C:52-1. Definition of expungement a. Except as otherwise provided in this chapter, expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.
b. Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records.
L.1979, c. 178, s. 108, eff. Sept. 1, 1979.
2C:52-2. Indictable offenses 2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing) and conspiracies or attempts to commit such crimes.
Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.
d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
Amended 1989,c.300,s.23; 1993,c.301; 1994,c.133,s.6.
2C:52-3. Disorderly persons offenses and petty disorderly persons offenses Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 110, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 43, eff. Sept. 24, 1981.
2C:52-4. Ordinances In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may, after the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 111, eff. Sept. 1, 1979.
2C:52-4.1. Juvenile delinquent; expungement of adjudications and charges a. Any person adjudged a juvenile delinquent may have such adjudication expunged as follows:
(1) Pursuant to N.J.S. 2C:52-2, if the act committed by the juvenile would have constituted a crime if committed by an adult;
(2) Pursuant to N.J.S. 2C:52-3, if the act committed by the juvenile would have constituted a disorderly or petty disorderly persons offense if committed by an adult; or
(3) Pursuant to N.J.S. 2C:52-4, if the act committed by the juvenile would have constituted an ordinance violation if committed by an adult.
For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult.
b. Additionally, any person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:
(1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision;
(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication;
(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S. 2C:52-2;
(4) He has never had an adult conviction expunged; and
(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.
c. Any person who has been charged with an act of delinquency and against whom proceedings were dismissed may have the filing of those charges expunged pursuant to the provisions of N.J.S. 2C:52-6.
L.1980, c. 163, s. 1. Amended by L.1981, c. 290, s. 44, eff. Sept. 24, 1981.
2C:52-5. Expungement of records of young drug offenders Expungement of Records of Young Drug Offenders. Notwithstanding the provisions of sections 2C:52-2 and 2C:52-3, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of an offense under chapters 35 or 36 of this title for the possession or use of a controlled dangerous substance, convicted of violating P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5), or convicted of violating P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), and who at the time of the offense was 21 years of age or younger, may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such person's conviction and all records pertaining thereto. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title or of P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.
This section shall not apply to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except:
(1) Marihuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total amount sold, distributed or possessed with intent to sell was 5 grams or less.
L. 1979, c. 178, s. 111; amended by L. 1987, c. 106, s. 16. 2C:52-6. Arrests not resulting in conviction a. In all cases, except as herein provided, wherein a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation under the laws of this State or of any governmental entity thereof and against whom proceedings were dismissed, or who was acquitted, or who was discharged without a conviction or finding of guilt, may at any time following the disposition of proceedings, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the disposition occurred praying that records of such arrest and all records and information pertaining thereto be expunged.
b. Any person who has had charges dismissed against him pursuant to P.L.1970, c. 226, s. 27 (C. 24:21-27) or pursuant to a program of supervisory treatment, shall be barred from the relief provided in this section until 6 months after the entry of the order of dismissal.
c. Any person who has been arrested or held to answer for a crime shall be barred from the relief provided in this section where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged.
L.1979, c. 178, s. 113, eff. Sept. 1, 1979.
2C:52-7. Petition for expungement Every petition for expungement filed pursuant to this chapter shall be verified and include:
a. Petitioner's date of birth.
b. Petitioner's date of arrest.
c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted.
d. The original indictment, summons or complaint number.
e. Petitioner's date of conviction, or date of disposition of the matter if no conviction resulted.
f. The court's disposition of the matter and the punishment imposed, if any.
L.1979, c. 178, s. 114, eff. Sept. 1, 1979.
2C:52-8. Statements to accompany petition There shall be attached to a petition for expungement:
a. A statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for expungement.
b. In those instances where the petitioner is seeking the expungement of a criminal conviction, a statement with affidavit or verification that he has never been granted expungement, sealing or similar relief regarding a criminal conviction by any court in this State or other state or by any Federal court. "Sealing" refers to the relief previously granted pursuant to P.L.1973, c. 191 (C. 2A:85-15 et seq.).
c. In those instances where a person has received a dismissal of a criminal charge because of acceptance into a supervisory treatment or any other diversion program, a statement with affidavit or verification setting forth the nature of the original charge, the court of disposition and date of disposition.
L.1979, c. 178, s. 115, eff. Sept. 1, 1979.
2C:52-9. Order fixing time for hearing Upon the filing of a petition for relief pursuant to this chapter, the court shall, by order, fix a time not less than 35 nor more than 60 days thereafter for hearing of the matter.
L.1979, c. 178, s. 116, eff. Sept. 1, 1979.
2C:52-10. Service of petition and documents A copy of each petition, together with a copy of all supporting documents, shall be served pursuant to the rules of court upon the Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the magistrate of that court. Service shall be made within 5 days from the date of the order setting the date for the hearing upon the matter.
L.1979, c. 178, s. 117, eff. Sept. 1, 1979.
2C:52-11. Order expungement where no objection prior to hearing If, prior to the hearing, there is no objection from those law enforcement agencies notified or from those offices or agencies which are required to be served under 2C:52-10, and no reason, as provided in section 2C:52-14, appears to the contrary, the court may, without a hearing, grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge records of said disposition including evidence of arrest, detention, conviction and proceedings related thereto.
L.1979, c. 178, s. 118, eff. Sept. 1, 1979.
2C:52-12. Denial of relief although no objection entered In the event that none of the persons or agencies required to be noticed under 2C:52-10 has entered any objection to the relief being sought, the court may nevertheless deny the relief sought if it concludes that petitioner is not entitled to relief for the reasons provided in section 2C:52-14.
L.1979, c. 178, s. 119, eff. Sept. 1, 1979.
2C:52-13. When hearing on petition for expungement shall not be held No petition for relief made pursuant to this section shall be heard by any court if the petitioner, at the time of filing or date of hearing, has a charge or charges pending against him which allege the commission of a crime, disorderly persons offense or petty disorderly persons offense. Such petition shall not be heard until such times as all pending criminal and or disorderly persons charges are adjudicated to finality.
L.1979, c. 178, s. 120, eff. Sept. 1, 1979.
2C:52-14. Grounds for denial of relief A petition for expungement filed pursuant to this chapter shall be denied when:
a. Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.
b. The need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter. An application may be denied under this subsection only following objection of a party given notice pursuant to 2C:52-10 and the burden of asserting such grounds shall be on the objector.
c. In connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.
d. The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body.
e. A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition. This provision shall not apply:
(1) When the person is seeking the expungement of a municipal ordinance violation or,
(2) When the person is seeking the expungement of records pursuant to section 2C:52-6.
f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.
L.1979, c. 178, s. 121, eff. Sept. 1, 1979.
2C:52-15. Records to be removed; control If an order of expungement of records of arrest or conviction under this chapter is granted by the court, all the records specified in said order shall be removed from the files of the agencies which have been noticed of the pendency of petitioner's motion and which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the hearing, possesses said records. That designated person shall, except as otherwise provided in this chapter, insure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose. In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information.
L.1979, c. 178, s. 122, eff. Sept. 1, 1979.
2C:52-16. Expunged record including names of persons other than petitioner Any record or file which is maintained by a judicial or law enforcement agency, or agency in the criminal justice system, which is the subject of an order of expungement which includes the name or names of persons other than that of the petitioner need not be isolated from the general files of the agency retaining same if the other persons named in said record or file have not been granted an order of expungement of said record, provided that a copy of the record shall be given to the person designated in 2C:52-15 and the original shall remain in the agency's general files with the petitioner's name and other personal identifiers obliterated and deleted.
L.1979, c. 178, s. 123, eff. Sept. 1, 1979.
2C:52-17. Use of expunged records by agencies on pending petition for expungement Expunged records may be used by the agencies that possess same to ascertain whether a person has had prior conviction expunged, or sealed under prior law, when the agency possessing the record is noticed of a pending petition for the expungement of a conviction. Any such agency may supply information to the court wherein the motion is pending and to the other parties who are entitled to notice pursuant to 2C:52-10.
L.1979, c. 178, s. 124, eff. Sept. 1, 1979 2C:52-18. Supplying information to violent crimes compensation board Information contained in expunged records may be supplied to the Violent Crimes Compensation Board, in conjunction with any claim which has been filed with said board.
L.1979, c. 178, s. 125, eff. Sept. 1, 1979.
2C:52-19. Order of superior court permitting inspection of records or release of information; limitations Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.
L.1979, c. 178, s. 126, eff. Sept. 1, 1979.
2C:52-20. Use of expunged records in conjunction with supervisory treatment or diversion programs Expunged records may be used by any judge in determining whether to grant or deny the person's application for acceptance into a supervisory treatment or diversion program for subsequent charges. Any expunged records which are possessed by any law enforcement agency may be supplied to the Attorney General, any county prosecutor or judge of this State when same are requested and are to be used for the purpose of determining whether or not to accept a person into a supervisory treatment or diversion program for subsequent charges.
L.1979, c. 178, s. 127, eff. Sept. 1, 1979. 2C:52-21. Use of expunged records in conjunction with setting bail, presentence report or sentencing Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a persistence report or for purpose of sentencing.
L.1979, c. 178, s. 128, eff. Sept. 1, 1979.
2C:52-22. Use of expunged records by parole board Expunged records, or sealed records under prior law, of prior disorderly persons, petty disorderly persons and criminal convictions shall be provided to the Parole Board when same are requested for the purpose of evaluating the granting of parole to the person who is the subject of said records. Such sealed or expunged records may be used by the Parole Board in the same manner and given the same weight in its considerations as if the records had not been expunged or sealed.
L.1979, c. 178, s. 129, eff. Sept. 1, 1979.
2C:52-23. Use of expunged records by department of corrections Expunged records, and records sealed under prior law, shall be provided to the Department of Corrections for its use solely in the classification, evaluation and assignment to correctional and penal institutions of persons placed in its custody.
L.1979, c. 178, s. 130, eff. Sept. 1, 1979. 2C:52-24. County prosecutor's obligation to ascertain propriety of petition Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed to verify the accuracy of the allegations contained in the petition for expungement and to bring to the court's attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained other than that as included in the petitioner's affidavit, such facts shall be communicated by the prosecutor to the hearing judge.
L.1979, c. 178, s. 131, eff. Sept. 1, 1979.
2C:52-25. Retroactive application This chapter shall apply to arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of this act.
L.1979, c. 178, s. 132, eff. Sept. 1, 1979.
2C:52-26. Vacating of orders of sealing; time; basis If, within 5 years of the entry of an expungement order, any party to whom notice is required to be given pursuant to section 2C:52-10 notifies the court which issued the order that at the time of the petition or hearing there were criminal, disorderly persons or petty disorderly persons charges pending against the person to whom the court granted such order, which charges were not revealed to the court at the time of hearing of the original motion or that there was some other statutory disqualification, said court shall vacate the expungement order in question and reconsider the original motion in conjunction with the previously undisclosed information.
L.1979, c. 178, s. 133, eff. Sept. 1, 1979. 2C:52-27. Effect of expungement Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:
a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in section 2C:52-8b.
b. The fact of an expungement of prior charges which were dismissed because of the person's acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any judge who is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges; and
c. Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law.
L.1979, c. 178, s. 134, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 45, eff. Sept. 24, 1981.
2C:52-27.1 Petition to rescind order of debarment for health care claims fraud.
5. a. If an order of expungement of records of conviction under the provisions of chapter 52 of Title 2C of the New Jersey Statutes is granted by the court to a person convicted of health care claims fraud in which the court had ordered the offender's professional license be forfeited and the person be forever barred from the practice of the profession pursuant to paragraph (1) of subsection a. of section 4 of P.L.1997, c.353 (C.2C:51-5), the person may petition the court for an order to rescind the court's order of debarment if the person can demonstrate that the person is sufficiently rehabilitated.
b.If an order to rescind the court's order of debarment is granted, the person granted the order may apply to be licensed to practice the profession from which the offender was barred.
L.1997,c.353,s.5.
2C:52-28. Motor vehicle offenses Nothing contained in this chapter shall apply to arrests or conviction for motor vehicle offenses contained in Title 39.
L.1979, c. 178, s. 135, eff. Sept. 1, 1979.
2C:52-29. Fee Any person who files an application pursuant to this chapter shall pay to the State Treasurer a fee of $30.00 to defer administrative costs in processing an application hereunder.
L.1979, c. 178, s. 136, eff. Sept. 1, 1979.
2C:52-30. Disclosure of expungement order Except as otherwise provided in this chapter, any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person. Notwithstanding the provisions of section 2C:43-3, the maximum fine which can be imposed for violation of this section is $200.00.
L.1979, c. 178, s. 137, eff. Sept. 1, 1979.
2C:52-31. Limitation Nothing provided in this chapter shall be interpreted to permit the expungement of records contained in the Controlled Dangerous Substances Registry created pursuant to P.L.1970, c. 227 (C. 26:2G-17 et seq.), or the registry created by the Administrative Office of the Courts pursuant to section 2C:43-21.
L.1979, c. 178, s. 138, eff. Sept. 1, 1979.
2C:52-32. Construction This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records.
L.1979, c. 178, s. 139, eff. Sept. 1, 1979.
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Friday, December 28, 2007
Jail for Crimes and Disorderly Conduct
Jail for Crimes and Disorderly Conduct
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
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Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Resisting Arrest and Eluding an Officer
2C:29-2. Resisting Arrest; Eluding Officer. a. (1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person:
(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or
(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another.
It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.
b.Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person's driver's license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
Amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
2C:29-3 Hindering apprehension or prosecution.
2C:29-3. Hindering Apprehension or Prosecution. a.A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he:
(1)Harbors or conceals the other;
(2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;
(3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;
(5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or
(7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:
(1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
Amended 1981, c.290, s.29; amended 1999, c.297.
If someone is indicted for the Serious criminal charge of "ELUDING AN OFFICER", the Judge will read portions of the following to the Jury:
(N.J.S.A. 2C:29-2b)
[Second and Third Degree]
The indictment charges the defendant with committing the crime of eluding an officer. The indictment reads as follows:
(Read Indictment)
The statute on which this charge is based reads as follows:
Any person, while operating a motor vehicle on any street or highway in this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle to a full stop commits a crime of the third degree.
[CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH
SECOND AND THIRD DEGREE]
[That person] is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
[CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH SECOND AND THIRD DEGREE]
[I will ask you to consider both third degree and second degree eluding, and will begin by defining third degree.] In order to convict the defendant of third degree eluding, the state must prove beyond a reasonable doubt each of the following six (6) elements: 1. That was operating a motor vehicle on a street or highway in this state. 2. That was a police or law enforcement officer. 3. That signaled to bring the vehicle to a full stop. 4. That knew that the officer had signaled (him/her) to bring the vehicle to a full stop. 5. That knew that was a police or law enforcement officer. 6. That defendant knowingly fled or attempted to elude the officer.
If you find that was the owner of the vehicle, you may infer that (he/she) was operating that vehicle at the time of the offense. However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish.
Mere failure to stop does not constitute flight. To find flight, you must find that the defendant's purpose in leaving was to avoid being stopped by the officer. A person attempts to perform an act if (he/she) does or omits to do anything with the purpose of performing that act without further conduct on (his/her) part, or purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step planned to culminate in the performance of that act. A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing" or "with knowledge" or equivalent terms have the same meaning. If you find that the State has failed to prove any one of these elements beyond a reasonable doubt you must find the defendant not guilty. [CHARGE FOLLOWING SENTENCE IF SUBMITTING ONLY THIRD DEGREE] On the other hand, if you find that the State has proven all of these elements beyond a reasonable doubt, you must find the defendant guilty. [CHARGE REMAINING PARAGRAPHS IF SUBMITTING SECOND DEGREE] If you find that the State has proven all six of the above elements beyond a reasonable doubt, you must go on in your deliberations to consider a seventh element, which will distinguish third-degree eluding from the greater offense of second-degree eluding. The State must prove beyond a reasonable doubt: 7. That the flight or attempt to elude created a risk of death or injury to any person. "Injury" means physical pain, illness, or any impairment of physical condition.1 In order to find this element, you must determine that there was at least one person put at risk by the defendant's conduct, including persons along the chase route, police officers in the chasing vehicle, or persons in the eluding vehicle.2
[CHARGE IF APPLICABLE:]3
You may infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle law of this State [OR: the law regulating power vessels]. It is alleged that defendant's conduct involved [a] violation[s] of the motor vehicle law [OR: the law regulating power vessels]. Specifically, it is alleged that defendant [list motor vehicle violations or power vessel violations alleged, and list their elements, taking care to list only those violations that allegedly occurred after the signal to stop]. Whether (he/she) is guilty or not guilty of that [those] offense[s] will be determined by an appropriate court.4In other words, it is not your job to decide whether (he/she) is guilty or not guilty of the motor vehicle [OR: power vessel] offense[s]. However, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] [OR: power vessel offense[s]] in deciding whether (he/she) created a risk of death or injury. At the same time, remember that you are never required or compelled to draw this inference. As I have already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish. If you find that the State has proven beyond a reasonable doubt all seven elements of the offense, then you must find the defendant guilty of the second degree crime of eluding an officer. On the other hand, if you find that the State has failed to prove the seventh element beyond a reasonable doubt, but has proven the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of second degree eluding and guilty of third degree eluding. Finally, if you find that the State has failed to prove any of the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of either crime.
1 State v. Wallace, 158 N.J. 552, 558 (1999), holds that the term "injury" should be defined for the jury, using the Code definition of "bodily injury," N.J.S.A. 2C:11-1a. Property damage, psychological injury, or other nonphysical injury do not satisfy the statutory requirement. Id.
2 Wallace, 158 N.J. at 560.
3 Only violations of Chapter 4 of Title 39 (motor vehicles) or Chapter 7 of Title 12 (power vessels) will support this statutory inference. However, not all such violations will support the inference, and it should not be submitted where no reasonable juror on the evidence as a whole, including the evidence of the motor vehicle or power vessel violation, could find a risk of death or injury to any person beyond a reasonable doubt. N.J.R.E. 303b; State v. DiRienzo, 53 N.J. 360, 378 (1969).
4 Because it is inappropriate to submit to a jury a lesser motor-vehicle offense related to an indictable prosecution properly before them, State v. Muniz, 118 N.J. 319, 331-32 (1990), the jury should be instructed, if appropriate, that any outstanding motor vehicle charge will be determined by an appropriate court. At the same time, the failure to explain, in appropriate circumstances, the elements of the motor vehicle offenses that form the basis for the statutory inference of recklessness, so that the jury can make an accurate determination whether the defendant's conduct "created the danger of death or injury," is reversible error. State v. Dorko, 298 N.J. Super. at 59-60. Accordingly, the court should explain the elements of the applicable motor vehicle offenses to the jury, but inform them that the defendant's guilt or innocence of those offenses will be determined by an appropriate court. The jury should be instructed not to speculate as to whether any such charges have been filed or disposed of. The same principles would appear to apply if a power vessel offense, rather than a motor vehicle offense, is alleged as the basis for the statutory inference.
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(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or
(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another.
It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.
b.Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person's driver's license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
Amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
2C:29-3 Hindering apprehension or prosecution.
2C:29-3. Hindering Apprehension or Prosecution. a.A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he:
(1)Harbors or conceals the other;
(2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;
(3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;
(5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or
(7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:
(1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
Amended 1981, c.290, s.29; amended 1999, c.297.
If someone is indicted for the Serious criminal charge of "ELUDING AN OFFICER", the Judge will read portions of the following to the Jury:
(N.J.S.A. 2C:29-2b)
[Second and Third Degree]
The indictment charges the defendant with committing the crime of eluding an officer. The indictment reads as follows:
(Read Indictment)
The statute on which this charge is based reads as follows:
Any person, while operating a motor vehicle on any street or highway in this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle to a full stop commits a crime of the third degree.
[CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH
SECOND AND THIRD DEGREE]
[That person] is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
[CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH SECOND AND THIRD DEGREE]
[I will ask you to consider both third degree and second degree eluding, and will begin by defining third degree.] In order to convict the defendant of third degree eluding, the state must prove beyond a reasonable doubt each of the following six (6) elements: 1. That was operating a motor vehicle on a street or highway in this state. 2. That was a police or law enforcement officer. 3. That signaled to bring the vehicle to a full stop. 4. That knew that the officer had signaled (him/her) to bring the vehicle to a full stop. 5. That knew that was a police or law enforcement officer. 6. That defendant knowingly fled or attempted to elude the officer.
If you find that was the owner of the vehicle, you may infer that (he/she) was operating that vehicle at the time of the offense. However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish.
Mere failure to stop does not constitute flight. To find flight, you must find that the defendant's purpose in leaving was to avoid being stopped by the officer. A person attempts to perform an act if (he/she) does or omits to do anything with the purpose of performing that act without further conduct on (his/her) part, or purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step planned to culminate in the performance of that act. A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing" or "with knowledge" or equivalent terms have the same meaning. If you find that the State has failed to prove any one of these elements beyond a reasonable doubt you must find the defendant not guilty. [CHARGE FOLLOWING SENTENCE IF SUBMITTING ONLY THIRD DEGREE] On the other hand, if you find that the State has proven all of these elements beyond a reasonable doubt, you must find the defendant guilty. [CHARGE REMAINING PARAGRAPHS IF SUBMITTING SECOND DEGREE] If you find that the State has proven all six of the above elements beyond a reasonable doubt, you must go on in your deliberations to consider a seventh element, which will distinguish third-degree eluding from the greater offense of second-degree eluding. The State must prove beyond a reasonable doubt: 7. That the flight or attempt to elude created a risk of death or injury to any person. "Injury" means physical pain, illness, or any impairment of physical condition.1 In order to find this element, you must determine that there was at least one person put at risk by the defendant's conduct, including persons along the chase route, police officers in the chasing vehicle, or persons in the eluding vehicle.2
[CHARGE IF APPLICABLE:]3
You may infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle law of this State [OR: the law regulating power vessels]. It is alleged that defendant's conduct involved [a] violation[s] of the motor vehicle law [OR: the law regulating power vessels]. Specifically, it is alleged that defendant [list motor vehicle violations or power vessel violations alleged, and list their elements, taking care to list only those violations that allegedly occurred after the signal to stop]. Whether (he/she) is guilty or not guilty of that [those] offense[s] will be determined by an appropriate court.4In other words, it is not your job to decide whether (he/she) is guilty or not guilty of the motor vehicle [OR: power vessel] offense[s]. However, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] [OR: power vessel offense[s]] in deciding whether (he/she) created a risk of death or injury. At the same time, remember that you are never required or compelled to draw this inference. As I have already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish. If you find that the State has proven beyond a reasonable doubt all seven elements of the offense, then you must find the defendant guilty of the second degree crime of eluding an officer. On the other hand, if you find that the State has failed to prove the seventh element beyond a reasonable doubt, but has proven the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of second degree eluding and guilty of third degree eluding. Finally, if you find that the State has failed to prove any of the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of either crime.
1 State v. Wallace, 158 N.J. 552, 558 (1999), holds that the term "injury" should be defined for the jury, using the Code definition of "bodily injury," N.J.S.A. 2C:11-1a. Property damage, psychological injury, or other nonphysical injury do not satisfy the statutory requirement. Id.
2 Wallace, 158 N.J. at 560.
3 Only violations of Chapter 4 of Title 39 (motor vehicles) or Chapter 7 of Title 12 (power vessels) will support this statutory inference. However, not all such violations will support the inference, and it should not be submitted where no reasonable juror on the evidence as a whole, including the evidence of the motor vehicle or power vessel violation, could find a risk of death or injury to any person beyond a reasonable doubt. N.J.R.E. 303b; State v. DiRienzo, 53 N.J. 360, 378 (1969).
4 Because it is inappropriate to submit to a jury a lesser motor-vehicle offense related to an indictable prosecution properly before them, State v. Muniz, 118 N.J. 319, 331-32 (1990), the jury should be instructed, if appropriate, that any outstanding motor vehicle charge will be determined by an appropriate court. At the same time, the failure to explain, in appropriate circumstances, the elements of the motor vehicle offenses that form the basis for the statutory inference of recklessness, so that the jury can make an accurate determination whether the defendant's conduct "created the danger of death or injury," is reversible error. State v. Dorko, 298 N.J. Super. at 59-60. Accordingly, the court should explain the elements of the applicable motor vehicle offenses to the jury, but inform them that the defendant's guilt or innocence of those offenses will be determined by an appropriate court. The jury should be instructed not to speculate as to whether any such charges have been filed or disposed of. The same principles would appear to apply if a power vessel offense, rather than a motor vehicle offense, is alleged as the basis for the statutory inference.
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Receiving Stolen Property 2C:20-7
2C:20-7. Receiving stolen property
2C:20-7. Receiving Stolen Property. a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.
b. Presumption of knowledge. The requisite knowledge or belief is presumed in the case of a person who:
(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or
(2) Has received stolen property in another transaction within the year preceding the transaction charged; or
(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it ;or
(4) Is found in possession of two or more defaced access devices.
Amended 1979, c.178, s.35; 1981, c.290, s.19; 1997, c.6, s.3.
AT THE END OF THE TRIAL, THE JUDGE WILL READ THE FOLLOWING INSTRUCTIONS AND LAW TO THE JURY:
RECEIVING STOLEN PROPERTY
(N.J.S.A. 2C:20-7(a))
The defendant is charged with the crime of receiving stolen property. [Describe the property allegedly involved] This charge is based on a statute which reads:
"A person is guilty of theft if he knowingly receives (or brings into this State) movable property of another knowing that it has been stolen, or believing that it has probably been stolen."1
Under this statute the State must prove 3 elements to establish that a defendant is guilty of receiving stolen property. These elements are: 1. That the defendant received (or brought into this State) movable property of another; 2. That the defendant acted knowingly when he/she received (or brought into this State) the movable property of another; 3. That the defendant either knew that the property had been stolen or believed that it had probably been stolen2 at the time he/she received the property (or brought the property into this State).
The first element that the State must prove beyond a reasonable doubt is that the defendant received (or brought into this State) movable property of another. The term "receive" means toacquire possession, control, or title (or to lend on the security) of the property.3
(Charge Model Charge on Possession, N.J.S.A. 2C:2-1c)
The term "movable property" means property, the location of which can be changed (including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location).4 The term "property" means anything of value.5 "Property of another" means property in which the defendant does not have a lawful interest.6 The State need not, however, prove the identity of the owner, the identity of the original thief,7 or the identity of the person from whom the defendant received the property. The second element that the State must prove beyond a reasonable doubt is that the defendant acted knowingly when (he/she) received (or brought into this State) the movable property of another.
A person acts knowingly with respect to the nature of (his/her) conduct or the attendantcircumstances if (he/she) is aware that (his/her) conduct is of that nature, or that such circumstances exist, or (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.8
The third element that the State must prove beyond a reasonable doubt is that the defendant either knew that the property had been stolen or believed that it had probably been stolen at the time the defendant received the property (or brought the property into this State). Stolen property means property that has been the subject of any unlawful taking. An unlawful taking occurs when a person takes or exercises unlawful control over the property of another with the purpose, that is, the conscious object, of depriving the other of it permanently or for so extended a period as to appropriate a substantial portion of its economic value.9 I have already defined the term "knowing" to you in discussing the second element and I will not repeat it here. The State is not required to prove that the property, in fact, had been stolen. On the other hand, mere proof that the property was stolen is not sufficient to establish this element. Rather, what the State must prove is that the defendant either knew that the property was stolen or believed that it had probably been stolen. A belief that property has probably been stolen is a belief that it is more likely than not that the property had been stolen. You must realize that knowledge and belief are states of mind which cannot be seen but can only be determined by drawing inferences from one's conduct, words or actions, and from all of the surrounding circumstances. It therefore is not necessary that the State produce witnesses to testify that the defendant said (he/she) knew or believed the property was stolen. (His/her) state of mind is to be determined by you after you examine (his/her) conduct and actions, all that was said or doneat that particular time and place, and all the surrounding circumstances.10
To reiterate, the three elements which the State must prove are: 1. That the defendant received (or brought into this State) movable property of another; 2. That in so doing the defendant acted knowingly; and 3. That the defendant either knew that the property had been stolen or believed that it had probably been stolen when (he/she) received it (or brought it into this State).11
If you conclude the State has proven all three elements of this offense beyond a reasonable doubt, you must find the defendant guilty. On the other hand, if you find that the State has failed to prove any element beyond a reasonable doubt, you must find the defendant not guilty.
(NOTE: Do not charge the following for certain types of property such as an automobile or
firearm. See N.J.S.A. 2C:20-2b(2)(b) and (c).)
Since the value of the property involved determines the degree or severity of the crime, the State must also prove its value beyond a reasonable doubt. If you find the defendant guilty, then youmust indicate whether you find the value of the property involved:
(1) exceeds $500, (2) is at least $200 but does not exceed $500, or (3) is less than $200.
Value is to be determined by the fair market value of the property at the time the defendant is alleged to have received or brought into this State the movable property of another. Fair market value means the price that a buyer would be willing to pay and a seller would be willing to accept if both parties were aware of all the relevant surrounding circumstances and neither party were under any compulsion to buy or sell.
1 The language "or brings into this State" is placed in parentheses to suggest that in a case where there is nothing to indicate that this language applies, consideration might be given to deleting the language and thereby eliminating unnecessary verbiage.
2 Where the defendant is also the person who took the property, the third element must be modified. State v. Underwood, 286 N.J. Super. 129 (App. Div. 1995). In such cases, "the State must prove that the defendant intended an unlawful taking," id. at 135; that is, the defendant acted with the purpose to permanently deprive the owner of the property. Id. at 138. Thus, in such cases the third element could be phrased as follows: "The property was stolen by the defendant. In order for you to find that the defendant stole the property, the State must prove that the defendant acted with the purpose to deprive the owner of the property. To deprive means to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value..." (N.J.S.A. 2C:20-1a) A person acts purposely with respect to the nature of his conduct or a result thereof if it is his or her conscious object to engage in conduct of that nature or cause such a result. (N.J.S.A. 2C:2-2b(1)).
3 N.J.S.A. 2C:20-7a. It is suggested that the language "or to lend on the security" only be charged when it applies to the facts of the case.
4 N.J.S.A. 2C:20-1e. It is suggested that the language relating to things on land or documents be charged only when it applies to the facts of the case.
5 N.J.S.A. 2C:20-1g. The statutory definition gives examples of various types of property as being included in the definition, such as trade secrets and choses in action. Reference should be made to the statutory definition in particular cases to determine whether additional language should be charged.
6 N.J.S.A. 2C:20-1h. This is not the complete definition of "property of another," but should be sufficient in the usual case. The definition goes on to address joint ownership issues, contraband, and security interests. When applicable under the facts of a case, this language should be included.
7 Consideration should be given to deleting the language as to the identity of the thief in an Underwood situation. See fn. 2, supra.
8 N.J.S.A. 2C:2-2b(2).
9 N.J.S.A. 2C:20-1a and p; State v. Underwood, supra, 286 N.J. Super. at 135-136.
10 In the appropriate case, the jury may be advised that such knowledge or belief may be inferred from the presence of the factors set forth in N.J.S.A. 2C:20-7b if the evidence provides a factual basis for such an instruction. See State v. Humphrey, 183 N.J. Super. 580 (Law Div. 1982); N.J.R.E. 303; N.J.S.A. 2C:1-13e.
If the jury is instructed as to an inference permitted by N.J.S.A. 2C:20-7b, care should be taken to avoid the use of the term "presumption" and it should be clearly stated that the inference is only permissive in nature. Thus, language such as the following should be charged:
However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish.
It should also be noted that aside from the inference authorized by the statute, there is a question as to whether recent unexplained possession of stolen property permits an inference of guilty knowledge. The former receiving stolen property statute (N.J.S.A. 2A:139-1) provided for such an inference (see State v. DiRienzo, 53 N.J. 360 (1969) and one trial level court has held that a common law inference still may be drawn even in the absence of a specific statutory authorization. State in the Interest of L.L.A., 178 N.J. Super. 555 (J. & D.R. Ct. 1980); cf. State v. Burch, 179 N.J. Super. 336 (App. Div. 1981) certif. den. 89 N.J. 396 (1981) (applying inference in theft by unlawful taking prosecution under N.J.S.A. 2C:20-3.); see also State v. Ippolito, 287 N.J. Super. 375, 383 (App. Div. 1996) (holding in theft by unlawful taking case that "{t}he inference charge is given when there is a dispute concerning the identity of the person who physically took the property," but "is inappropriate where . . . defendant admits that he took the property and possessed it from the time it was taken until it was recovered but he has explained his possession as a claim of right.")
In contrast, one commentator has suggested that the "common law inference does not appear to have survived the enactment of the Code," at least with respect to receiving, as opposed to unlawful taking, prosecutions. Cannel, Title 2C: CRIMINAL CODE ANNOTATED, COMMENT TO N.J.S.A. 2C:20-7 at p. 437.
If the inference of guilty knowledge from recent, unexplained possession of stolen property is to be charged, care should be taken not to charge it in such a manner or under such circumstances as to violate a non-testifying defendant's right to remain silent. This issue is discussed in State v. Burch, supra, 179 N.J. Super. 336. There, the court stated that "when it isclear from the record that defendant is the only source to supply (an) explanation, the instruction is prejudicial and should not be given." Id. However, the court also noted that in a stolen property case some evidence, other than the defendant's testimony, "such as a sales slip or sales clerk," is usually available to the defense "to account for innocent possession." Id. at 343. Thus, the court concluded that the instruction concerning the inference was proper even though "there (was) an absence of a specific showing in the record as to the availability of an evidence source other than the defendant's own testimony . . ." Id. at 343-44; see also State v. DiRienzo, 53 N.J. 360 (1969) and State v. Dent, 51 N.J. 428 (1968) which are discussed in Burch.
11 If the evidence requires, any affirmative defenses should be charged at this point. See e.g. N.J.S.A. 2C:20-2c. With respect to a "claim of right defense" pursuant to N.J.S.A. 2C:20-2c(2), see State v. Ippolito, supra, 287 N.J. Super. 375 and separate model jury charge.
NOTE ALSO that N.J.S.A. 2C:20-7a specifically says that it is an affirmative defense that the property was received with the purpose to restore it to the owner. This defense must be charged when there is a basis for it in the evidence. State v. Underwood, supra, 286 N.J. Super. at 138.
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2C:20-7. Receiving Stolen Property. a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.
b. Presumption of knowledge. The requisite knowledge or belief is presumed in the case of a person who:
(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or
(2) Has received stolen property in another transaction within the year preceding the transaction charged; or
(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it ;or
(4) Is found in possession of two or more defaced access devices.
Amended 1979, c.178, s.35; 1981, c.290, s.19; 1997, c.6, s.3.
AT THE END OF THE TRIAL, THE JUDGE WILL READ THE FOLLOWING INSTRUCTIONS AND LAW TO THE JURY:
RECEIVING STOLEN PROPERTY
(N.J.S.A. 2C:20-7(a))
The defendant is charged with the crime of receiving stolen property. [Describe the property allegedly involved] This charge is based on a statute which reads:
"A person is guilty of theft if he knowingly receives (or brings into this State) movable property of another knowing that it has been stolen, or believing that it has probably been stolen."1
Under this statute the State must prove 3 elements to establish that a defendant is guilty of receiving stolen property. These elements are: 1. That the defendant received (or brought into this State) movable property of another; 2. That the defendant acted knowingly when he/she received (or brought into this State) the movable property of another; 3. That the defendant either knew that the property had been stolen or believed that it had probably been stolen2 at the time he/she received the property (or brought the property into this State).
The first element that the State must prove beyond a reasonable doubt is that the defendant received (or brought into this State) movable property of another. The term "receive" means toacquire possession, control, or title (or to lend on the security) of the property.3
(Charge Model Charge on Possession, N.J.S.A. 2C:2-1c)
The term "movable property" means property, the location of which can be changed (including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location).4 The term "property" means anything of value.5 "Property of another" means property in which the defendant does not have a lawful interest.6 The State need not, however, prove the identity of the owner, the identity of the original thief,7 or the identity of the person from whom the defendant received the property. The second element that the State must prove beyond a reasonable doubt is that the defendant acted knowingly when (he/she) received (or brought into this State) the movable property of another.
A person acts knowingly with respect to the nature of (his/her) conduct or the attendantcircumstances if (he/she) is aware that (his/her) conduct is of that nature, or that such circumstances exist, or (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.8
The third element that the State must prove beyond a reasonable doubt is that the defendant either knew that the property had been stolen or believed that it had probably been stolen at the time the defendant received the property (or brought the property into this State). Stolen property means property that has been the subject of any unlawful taking. An unlawful taking occurs when a person takes or exercises unlawful control over the property of another with the purpose, that is, the conscious object, of depriving the other of it permanently or for so extended a period as to appropriate a substantial portion of its economic value.9 I have already defined the term "knowing" to you in discussing the second element and I will not repeat it here. The State is not required to prove that the property, in fact, had been stolen. On the other hand, mere proof that the property was stolen is not sufficient to establish this element. Rather, what the State must prove is that the defendant either knew that the property was stolen or believed that it had probably been stolen. A belief that property has probably been stolen is a belief that it is more likely than not that the property had been stolen. You must realize that knowledge and belief are states of mind which cannot be seen but can only be determined by drawing inferences from one's conduct, words or actions, and from all of the surrounding circumstances. It therefore is not necessary that the State produce witnesses to testify that the defendant said (he/she) knew or believed the property was stolen. (His/her) state of mind is to be determined by you after you examine (his/her) conduct and actions, all that was said or doneat that particular time and place, and all the surrounding circumstances.10
To reiterate, the three elements which the State must prove are: 1. That the defendant received (or brought into this State) movable property of another; 2. That in so doing the defendant acted knowingly; and 3. That the defendant either knew that the property had been stolen or believed that it had probably been stolen when (he/she) received it (or brought it into this State).11
If you conclude the State has proven all three elements of this offense beyond a reasonable doubt, you must find the defendant guilty. On the other hand, if you find that the State has failed to prove any element beyond a reasonable doubt, you must find the defendant not guilty.
(NOTE: Do not charge the following for certain types of property such as an automobile or
firearm. See N.J.S.A. 2C:20-2b(2)(b) and (c).)
Since the value of the property involved determines the degree or severity of the crime, the State must also prove its value beyond a reasonable doubt. If you find the defendant guilty, then youmust indicate whether you find the value of the property involved:
(1) exceeds $500, (2) is at least $200 but does not exceed $500, or (3) is less than $200.
Value is to be determined by the fair market value of the property at the time the defendant is alleged to have received or brought into this State the movable property of another. Fair market value means the price that a buyer would be willing to pay and a seller would be willing to accept if both parties were aware of all the relevant surrounding circumstances and neither party were under any compulsion to buy or sell.
1 The language "or brings into this State" is placed in parentheses to suggest that in a case where there is nothing to indicate that this language applies, consideration might be given to deleting the language and thereby eliminating unnecessary verbiage.
2 Where the defendant is also the person who took the property, the third element must be modified. State v. Underwood, 286 N.J. Super. 129 (App. Div. 1995). In such cases, "the State must prove that the defendant intended an unlawful taking," id. at 135; that is, the defendant acted with the purpose to permanently deprive the owner of the property. Id. at 138. Thus, in such cases the third element could be phrased as follows: "The property was stolen by the defendant. In order for you to find that the defendant stole the property, the State must prove that the defendant acted with the purpose to deprive the owner of the property. To deprive means to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value..." (N.J.S.A. 2C:20-1a) A person acts purposely with respect to the nature of his conduct or a result thereof if it is his or her conscious object to engage in conduct of that nature or cause such a result. (N.J.S.A. 2C:2-2b(1)).
3 N.J.S.A. 2C:20-7a. It is suggested that the language "or to lend on the security" only be charged when it applies to the facts of the case.
4 N.J.S.A. 2C:20-1e. It is suggested that the language relating to things on land or documents be charged only when it applies to the facts of the case.
5 N.J.S.A. 2C:20-1g. The statutory definition gives examples of various types of property as being included in the definition, such as trade secrets and choses in action. Reference should be made to the statutory definition in particular cases to determine whether additional language should be charged.
6 N.J.S.A. 2C:20-1h. This is not the complete definition of "property of another," but should be sufficient in the usual case. The definition goes on to address joint ownership issues, contraband, and security interests. When applicable under the facts of a case, this language should be included.
7 Consideration should be given to deleting the language as to the identity of the thief in an Underwood situation. See fn. 2, supra.
8 N.J.S.A. 2C:2-2b(2).
9 N.J.S.A. 2C:20-1a and p; State v. Underwood, supra, 286 N.J. Super. at 135-136.
10 In the appropriate case, the jury may be advised that such knowledge or belief may be inferred from the presence of the factors set forth in N.J.S.A. 2C:20-7b if the evidence provides a factual basis for such an instruction. See State v. Humphrey, 183 N.J. Super. 580 (Law Div. 1982); N.J.R.E. 303; N.J.S.A. 2C:1-13e.
If the jury is instructed as to an inference permitted by N.J.S.A. 2C:20-7b, care should be taken to avoid the use of the term "presumption" and it should be clearly stated that the inference is only permissive in nature. Thus, language such as the following should be charged:
However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish.
It should also be noted that aside from the inference authorized by the statute, there is a question as to whether recent unexplained possession of stolen property permits an inference of guilty knowledge. The former receiving stolen property statute (N.J.S.A. 2A:139-1) provided for such an inference (see State v. DiRienzo, 53 N.J. 360 (1969) and one trial level court has held that a common law inference still may be drawn even in the absence of a specific statutory authorization. State in the Interest of L.L.A., 178 N.J. Super. 555 (J. & D.R. Ct. 1980); cf. State v. Burch, 179 N.J. Super. 336 (App. Div. 1981) certif. den. 89 N.J. 396 (1981) (applying inference in theft by unlawful taking prosecution under N.J.S.A. 2C:20-3.); see also State v. Ippolito, 287 N.J. Super. 375, 383 (App. Div. 1996) (holding in theft by unlawful taking case that "{t}he inference charge is given when there is a dispute concerning the identity of the person who physically took the property," but "is inappropriate where . . . defendant admits that he took the property and possessed it from the time it was taken until it was recovered but he has explained his possession as a claim of right.")
In contrast, one commentator has suggested that the "common law inference does not appear to have survived the enactment of the Code," at least with respect to receiving, as opposed to unlawful taking, prosecutions. Cannel, Title 2C: CRIMINAL CODE ANNOTATED, COMMENT TO N.J.S.A. 2C:20-7 at p. 437.
If the inference of guilty knowledge from recent, unexplained possession of stolen property is to be charged, care should be taken not to charge it in such a manner or under such circumstances as to violate a non-testifying defendant's right to remain silent. This issue is discussed in State v. Burch, supra, 179 N.J. Super. 336. There, the court stated that "when it isclear from the record that defendant is the only source to supply (an) explanation, the instruction is prejudicial and should not be given." Id. However, the court also noted that in a stolen property case some evidence, other than the defendant's testimony, "such as a sales slip or sales clerk," is usually available to the defense "to account for innocent possession." Id. at 343. Thus, the court concluded that the instruction concerning the inference was proper even though "there (was) an absence of a specific showing in the record as to the availability of an evidence source other than the defendant's own testimony . . ." Id. at 343-44; see also State v. DiRienzo, 53 N.J. 360 (1969) and State v. Dent, 51 N.J. 428 (1968) which are discussed in Burch.
11 If the evidence requires, any affirmative defenses should be charged at this point. See e.g. N.J.S.A. 2C:20-2c. With respect to a "claim of right defense" pursuant to N.J.S.A. 2C:20-2c(2), see State v. Ippolito, supra, 287 N.J. Super. 375 and separate model jury charge.
NOTE ALSO that N.J.S.A. 2C:20-7a specifically says that it is an affirmative defense that the property was received with the purpose to restore it to the owner. This defense must be charged when there is a basis for it in the evidence. State v. Underwood, supra, 286 N.J. Super. at 138.
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Theft of Movable Property
Theft of Movable property 2C:20-2
If someone is criminally indicted for theft, at trial the judge will read to the jurors the following jury instructions of the law:
The following charge is to be used when the factual circumstances indicate an unlawful taking of personal property and the value of the property is in dispute. In other instances, reference must be made to 2C:20-2b to determine the degree of theft. See Charge # 2.291 on GRADATION OF THEFT OFFENSES. Note that 2C:20-2b(2) makes some offenses of the third degree regardless of the value of the property).
The indictment charges the defendant with (here read the indictment) . The statute on which the indictment is based is 2C:20-3a which reads in its pertinent part as follows:
A person is guilty of theft if he unlawfully takes, or exercises control over movable property of another with purpose to deprive him thereof.
(If appropriate, here define "movable property, "property" and "property of another.")
You cannot find the defendant guilty unless you determine that the State has proven the following two elements beyond a reasonable doubt:
First, the State must prove that the defendant unlawfully took (here describe property listed in indictment). In order to prove an unlawful taking, the State need not prove that the property was carried out of the place in which it was kept, but only that it was moved or taken from its original location. If the defendant is found with the stolen property shortly after it was taken, charge the jury that it may draw an inference that the defendant took the property).
Second, the State must prove that at the time the defendant took this property (his/her) purpose was to deprive the owner of the (here describe property). With regard to the requirement of proof of a purpose to deprive another of (his/her) property, you are instructed that a person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. In other words, in order for you to find that the defendant acted purposely, the State must prove beyond a reasonable doubt that at the time the defendant took the property it was (his/her) conscious object to deprive (the owner) of (describe property).
(If appropriate, insert relevant portions of the following definition.) "Deprive" means
(1) to withhold (or cause to be withheld) property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value...or,
(2) to dispose (or cause disposal) of the property so as to make it unlikely that the owner will recover it).
Thus, if you find after a careful consideration of all of the evidence that the State has proven beyond a reasonable doubt each of the elements as I have explained them, then your verdict should be guilty.
However, if the State has not proven each of the elements described above to your satisfaction beyond a reasonable doubt, then your verdict should be not guilty.
1 N.J.S.A. 2C:20-1e - "Movable Property" means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location. Unless the character of the property unlawfully taken is in dispute, the Court may instruct the jury that the property so taken is "(movable) property" under the statute.
N.J.S.A. 2C:20-1g - "Property" means anything of value including real estate, tangible and intangible personal property, trade secrets, contract rights, chooses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power.
N.J.S.A. 2C:20-1b - "Property of Another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property....
2 See Supplementary Note to this Charge; State v. Dancyger, 29 N.J. 76 (1959).
3 When the defendant is found to be in possession of the stolen property within a short time after the theft, see supplement attached to this charge.
Theft penalties increased!
2C:20-1 Definitions.
2C:20-1. Definitions. In chapters 20 and 21, unless a different meaning plainly is required:
a."Deprive" means: (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.
b."Fiduciary" means an executor, general administrator of an intestate, administrator with the will annexed, substituted administrator, guardian, substituted guardian, trustee under any trust, express, implied, resulting or constructive, substituted trustee, executor, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent or officer of a corporation, public or private, temporary administrator, administrator, administrator pendente lite, administrator ad prosequendum, administrator ad litem or other person acting in a similar capacity.
c."Financial institution" means a bank, insurance company, credit union, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
d."Government" means the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.
e."Movable property" means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location. "Immovable property" is all other property.
f."Obtain" means: (1) in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof.
g."Property" means anything of value, including real estate, tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.
h."Property of another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
i."Trade secret" means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula or improvement which is secret and of value. A trade secret shall be presumed to be secret when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.
j."Dealer in property" means a person who buys and sells property as a business.
k."Traffic" means:
(1)To sell, transfer, distribute, dispense or otherwise dispose of property to another person; or
(2)To buy, receive, possess, or obtain control of or use property, with intent to sell, transfer, distribute, dispense or otherwise dispose of such property to another person.
l."Broken succession of title" means lack of regular documents of purchase and transfer by any seller except the manufacturer of the subject property, or possession of documents of purchase and transfer by any buyer without corresponding documents of sale and transfer in possession of seller, or possession of documents of sale and transfer by seller without corresponding documents of purchase and transfer in possession of any buyer.
m."Person" includes any individual or entity or enterprise, as defined herein, holding or capable of holding a legal or beneficial interest in property.
n."Anything of value" means any direct or indirect gain or advantage to any person.
o."Interest in property which has been stolen" means title or right of possession to such property.
p."Stolen property" means property that has been the subject of any unlawful taking.
q."Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities.
r."Attorney General" includes the Attorney General of New Jersey, his assistants and deputies. The term shall also include a county prosecutor or his designated assistant prosecutor, if a county prosecutor is expressly authorized in writing by the Attorney General to carry out the powers conferred on the Attorney General by this chapter.
s."Access device" means property consisting of any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number, personal identification number, or any other data intended to control or limit access to telecommunications or other computer networks in either human readable or computer readable form, either copy or original, that can be used to obtain telephone service.
t."Defaced access device" means any access device, in either human readable or computer readable form, either copy or original, which has been removed, erased, defaced, altered, destroyed, covered or otherwise changed in any manner from its original configuration.
u."Domestic companion animal" means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.
Amended 1981, c.167, s.5; 1984, c.184, s.1; 1997, c.6, s.1; 1998, c.100, s.1.
2C:20-1.1. Offense involving access device; presumption of unlawful purpose
6. In any prosecution for an offense enumerated in chapter 20 of Title 2C of the New Jersey Statutes involving a defaced access device, any removal, erasure, defacement, alteration, destruction, covering or other change in such access device from its original configuration performed by any person other than an authorized manufacturer of, or service provider to access devices shall be presumed to be for an unlawful purpose.
L.1997,c.6,s.6.
2C:20-2 Consolidation of theft offenses; grading; provisions applicable to theft generally.
2C:20-2. Consolidation of Theft Offenses; Grading; Provisions Applicable to Theft Generally. a. Consolidation of Theft Offenses. Conduct denominated theft in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
b.Grading of theft offenses.
(1)Theft constitutes a crime of the second degree if:
(a)The amount involved is $75,000.00 or more;
(b)The property is taken by extortion;
(c)The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 and the quantity is in excess of one kilogram;
(d)The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is $75,000 or more;or
(e)The property stolen is human remains or any part thereof.
(2)Theft constitutes a crime of the third degree if:
(a)The amount involved exceeds $500.00 but is less than $75,000.00;
(b)The property stolen is a firearm, motor vehicle, vessel, boat, horse, domestic companion animal or airplane;
(c)The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 and the amount involved is less than $75,000.00 or is undetermined and the quantity is one kilogram or less;
(d)It is from the person of the victim;
(e)It is in breach of an obligation by a person in his capacity as a fiduciary;
(f)It is by threat not amounting to extortion;
(g)It is of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant;
(h)The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is less than $75,000;
(i)The property stolen is any real or personal property related to, necessary for, or derived from research, regardless of value, including, but not limited to, any sample, specimens and components thereof, research subject, including any warm-blooded or cold-blooded animals being used for research or intended for use in research, supplies, records, data or test results, prototypes or equipment, as well as any proprietary information or other type of information related to research;
(j)The property stolen is a New Jersey Prescription Blank as referred to in R.S.45:14-14; or
(k)The property stolen consists of an access device or a defaced access device.
(3)Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00. If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense.
(4)The amount involved in a theft shall be determined by the trier of fact. The amount shall include, but shall not be limited to, the amount of any State tax avoided, evaded or otherwise unpaid, improperly retained or disposed of. Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.
c.Claim of right. It is an affirmative defense to prosecution for theft that the actor:
(1)Was unaware that the property or service was that of another;
(2)Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did; or
(3) Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented.
d.Theft from spouse. It is no defense that theft was from the actor's spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together.
Amended 1979, c.178, s.33; 1981, c.167, s.6; 1987, c.76, s.31; 1987, c.106, s.5; 1993, c.219, s.3; 1993, c.363; 1995, c.20, s.5; 1996, c.154, s.9; 1997, c.6, s.2; 1998, c.100, s.2; 1999, c.95, s.2.
2C:20-2.1. Additional penalties for theft or unlawful taking of motor vehicle 1. a. In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle shall be subject:
(1) For the first offense, to a penalty of $500.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of one year.
(2) For a second offense, to a penalty of $750.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of two years.
(3) For a third or subsequent offense, to a penalty of $1,000.00, and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for 10 years.
b. The suspension or postponement of the person's license to operate a motor vehicle pursuant to subsection a. of this section shall commence on the day the sentence is imposed. In the case of any person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of one year for a first offense, two years for a second offense or 10 years for a third offense calculated from the day after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving privileges in this State.
c. All penalties provided for in this section shall be collected as provided for the collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4), and shall be distributed in accordance with the provisions of N.J.S.2C:64-6 as if the collected monies were the proceeds of property forfeited pursuant to the provisions of chapter 64. However, the distributed monies are to be used for law enforcement activities related to auto theft.
L.1991,c.83,s.1; amended 1993,c.219,s.4.
2C:20-2.2. Additional fine for auto theft Notwithstanding the provisions of N.J.S.2C:43-3, if the fair market value of the automobile and its contents at the time it was stolen exceeds $7,500.00 and the automobile is not recovered, the court may sentence the defendant to pay a fine for that higher amount.
L.1991,c.83,s.2.
2C:20-3. Theft by unlawful taking or disposition a. Movable property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.
b. Immovable property. A person is guilty of theft if he unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto.
L.1978, c. 95, s. 2C:20-3, eff. Sept. 1, 1979.
2C:20-4. Theft by deception A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:
a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
b. Prevents another from acquiring information which would affect his judgment of a transaction; or
c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
The term "deceive" does not, however, include falsity as to matters having no pecuniary significance, or puffing or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.
L.1978, c. 95, s. 2C:20-4, eff. Sept. 1, 1979.
2C:20-5. Theft by extortion A person is guilty of theft by extortion if he purposely and unlawfully obtains property of another by extortion. A person extorts if he purposely threatens to:
a. Inflict bodily injury on or physically confine or restrain anyone or commit any other criminal offense;
b. Accuse anyone of an offense or cause charges of an offense to be instituted against any person;
c. Expose or publicize any secret or any asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;
d. Take or withhold action as an official, or cause an official to take or withhold action;
e. Bring about or continue a strike, boycott or other collective action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act;
f. Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or
g. Inflict any other harm which would not substantially benefit the actor but which is calculated to materially harm another person.
It is an affirmative defense to prosecution based on paragraphs b, c, d or f that the property obtained was honestly claimed as restitution or indemnification for harm done in the circumstances or as lawful compensation for property or services.
L.1978, c. 95, s. 2C:20-5, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 34, eff. Sept. 1, 1979.
2C:20-6. Theft of property lost, mislaid, or delivered by mistake A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.
L.1978, c. 95, s. 2C:20-6, eff. Sept. 1, 1979.
2C:20-7. Receiving stolen property
2C:20-7. Receiving Stolen Property. a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.
b. Presumption of knowledge. The requisite knowledge or belief is presumed in the case of a person who:
(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or
(2) Has received stolen property in another transaction within the year preceding the transaction charged; or
(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it ;or
(4) Is found in possession of two or more defaced access devices.
Amended 1979, c.178, s.35; 1981, c.290, s.19; 1997, c.6, s.3.
2C:20-7.1. Fencing a. Possession of altered property. Any dealer in property who knew or should have known that the identifying features such as serial numbers and permanently affixed labels of property in his possession have been removed or altered without the consent of the manufacturer is guilty of possession of altered property. It is a defense to a prosecution under this subsection that a person lawfully possesses the usual indicia of ownership in addition to mere possession.
b. Dealing in stolen property. A person is guilty of dealing in stolen property if he traffics in, or initiates, organizes, plans, finances, directs, manages or supervises trafficking in stolen property.
c. The value of the property involved in the violation of this section shall be determined by the trier of fact. The value of the property involved in the violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons.
d. It is an affirmative defense to a prosecution under this section that the actor:
(1) Was unaware that the property or service was that of another;
(2) Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did.
e. In addition to the presumptions contained in N.J.S. 2C:20-7b. the following presumptions are available in the prosecution for a fencing offense:
(1) Proof of the purchase or sale of property at a price substantially below its fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew that it had been stolen;
(2) Proof of the purchase or sale of property by a dealer in that property, out of the regular course of business, or without the usual indicia of ownership other than mere possession, or the property or the job lot of which it is a part was bought, received, possessed or controlled in broken succession of title, so that it cannot be traced, by appropriate documents, in unbroken succession to the manufacturer, in all cases where the regular course of business reasonably indicates records of purchase, transfer or sale, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew that it had been stolen; and
(3) Proof that a person buying or selling property of the sort received obtained such property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess or control it gives rise to an inference that such person knew that it had been stolen.
L.1981, c. 167, s. 7, eff. June 15, 1981.
2C:20-8. Theft of services
2C:20-8. Theft of Services. a. A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means, including but not limited to mechanical or electronic devices or through fraudulent statements, to avoid payment for the service. "Services" include labor or professional service; transportation, telephone, telecommunications, electric, water, gas, cable television, or other public service; accommodation in hotels, restaurants or elsewhere; entertainment; admission to exhibitions; use of vehicles or other movable property. Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.
b. A person commits theft if, having control over the disposition of services of another, to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.
c. Any person who, without permission and for the purpose of obtaining electric current, gas or water with intent to defraud any vendor of electricity, gas or water or a person who is furnished by a vendor with electric current, gas or water:
(1) Connects or causes to be connected by wire or any other device with the wires, cables or conductors of any such vendor or any other person; or
(2) Connects or disconnects the meters, pipes or conduits of such vendor or any other person or in any other manner tampers or interferes with such meters, pipes or conduits, or connects with such meters, pipes or conduits by pipes, conduits or other instruments--is guilty of a disorderly persons offense.
The existence of any of the conditions with reference to meters, pipes, conduits or attachments, described in this subsection, is presumptive evidence that the person to whom gas, electricity or water is at the time being furnished by or through such meters, pipes, conduits or attachments has, with intent to defraud, created or caused to be created with reference to such meters, pipes, conduits or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with gas, electricity or water for less than 31 days or until there has been at least one meter reading.
A violation of this subsection shall be deemed to be a continuing offense as long as the conditions described in this subsection exist.
d. Any person who, without permission or authority, connects or causes to be connected by wires or other devices, any meter erected or set up for the purpose of registering or recording the amount of electric current supplied to any customer by any vendor of electricity within this State, or changes or shunts the wiring leading to or from any such meter, or by any device, appliance or means whatsoever tampers with any such meter so that the meter will not measure or record the full amount of electric current supplied to such customer, is guilty of a disorderly persons offense.
The existence of any of the conditions with reference to meters or attachments described in this subsection is presumptive evidence that the person to whom electricity is at the time being furnished by or through such meters or attachments has, with intent to defraud, created or caused to be created with reference to such meters or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with electricity for less than 31 days or until there has been at least one meter reading.
A violation of this subsection shall be deemed to be a continuing offense as long as the conditions described in this subsection exist.
e. Any person who, with intent to obtain cable television service without payment, in whole or in part, of the lawful charges therefor, or with intent to deprive another of the lawful receipt of such service, damages, cuts, tampers with, installs, taps or makes any connection with, or who displaces, removes, injures or destroys any wire, cable, conduit, apparatus or equipment of a cable television company operating a CATV system; or who, without authority of a cable television company, intentionally prevents, obstructs or delays, by any means or contrivance, the sending, transmission, conveyance, distribution or receipt of programming material carried by equipment of the cable television company operating a CATV system, is a disorderly person.
The existence of any of the conditions with reference to wires, cables, conduits, apparatus or equipment described in this subsection is presumptive evidence that the person to whom cable television service is at the time being furnished has, with intent to obtain cable television service without authorization or compensation or to otherwise defraud, created or caused to be created the condition so existing.
f. Any person who purposely or knowingly manufactures, constructs, sells, offers for sale, distributes or installs any equipment, device or instrument designed or intended to facilitate the interception, decoding or receipt of any cable television service with intent to obtain such service and avoid the lawful payment of the charges therefor to the provider, in whole or in part, is a disorderly person.
Any communications paraphernalia prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
g. Any person who purposely or knowingly maintains or possesses any equipment, device or instrument of the type described in subsection f. of this section or maintains or possesses any equipment, device or instrument actually used to facilitate the interception, decoding or receipt of any cable television service with intent to obtain such service and avoid the lawful payment, in whole or in part, of the charges therefor to the provider, is a disorderly person.
Any communications paraphernalia prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
h. Any person who, with the intent of depriving a telephone company of its lawful charges therefor, purposely or knowingly makes use of any telecommunications service by means of the unauthorized use of any electronic or mechanical device or connection, or by the unauthorized use of billing information, or by the use of a computer, computer equipment or computer software, or by the use of misidentifying or misleading information given to a representative of the telephone company is guilty of a crime of the third degree.
The existence of any of the conditions with reference to electronic or mechanical devices, computers, computer equipment or computer software described in this subsection is presumptive evidence that the person to whom telecommunications service is at the time being furnished has, with intent to obtain telecommunications service without authorization or compensation or to otherwise defraud, created or caused to be created the condition so existing.
i. Any person who purposely or knowingly manufactures, constructs, sells, offers for sale, distributes, installs, or otherwise provides any service, equipment, device, computer, computer equipment, computer software or instrument designed or intended to facilitate the receipt of any telecommunications service and avoid the lawful payment of the charges therefor to the provider, in whole or in part, is guilty of a crime of the third degree.
Any communications paraphernalia, computer, computer equipment or computer software prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
j. Any person who purposely or knowingly maintains or possesses any equipment, device, computer, computer equipment, computer software or instrument of the type described in subsection i. of this section, or maintains or possesses any equipment, device, computer, computer equipment, computer software or instrument actually used to facilitate the receipt of any telecommunications service with intent to obtain such service and avoid the lawful payment, in whole or in part, of the charges therefor to the provider, is guilty of a crime of the third degree.
Any communications paraphernalia, computer, computer equipment or computer software prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
k. In addition to any other disposition authorized by law, and notwithstanding the provisions of N.J.S.2C:43-3, every person who violates this section shall be sentenced to make restitution to the vendor and to pay a minimum fine of $500.00 for each offense. In determining the amount of restitution, the court shall consider the costs expended by the vendor, including but not limited to the repair and replacement of damaged equipment, the cost of the services unlawfully obtained, investigation expenses, and attorney fees.
l. The presumptions of evidence applicable to offenses defined in subsections c., d., e. and h. of this section shall also apply in any prosecution for theft of services brought pursuant to the provisions of subsection a. or b. of this section.
Amended 1983, c.15, s.1; 1985, c.10; 1989, c.112; 1997, c.6, s.4.
2C:20-9. Theft by failure to make required disposition of property received Theft by Failure to Make Required Disposition of Property Received. A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor's failure to make the required payment or disposition. An officer or employee of the government or of a financial institution is presumed: (a) to know any legal obligation relevant to his criminal liability under this section, and (b) to have dealt with the property as his own if he fails to pay or account upon lawful demand, or if an audit reveals a shortage or falsification of accounts. The fact that any payment or other disposition was made with a subsequently dishonored negotiable instrument shall constitute prima facie evidence of the actor's failure to make the required payment or disposition, and the trier of fact may draw a permissive inference therefrom that the actor did not intend to make the required payment or other disposition.
Amended by L. 1987, c. 76, s. 32.
2C:20-10. Unlawful taking of means of conveyance.
2C:20-10. Unlawful Taking of Means of Conveyance
a. A person commits a disorderly persons offense if, with purpose to withhold temporarily from the owner, he takes, operates, or exercises control over any means of conveyance, other than a motor vehicle, without consent of the owner or other person authorized to give consent. "Means of conveyance" includes but is not limited to motor vehicles, bicycles, motorized bicycles, boats, horses, vessels, surfboards, rafts, skimobiles, airplanes, trains, trams and trailers. It is an affirmative defense to prosecution under subsections a., b. and c. of this section that the actor reasonably believed that the owner or any other person authorized to give consent would have consented to the operation had he known of it.
b. A person commits a crime of the fourth degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent.
c. A person commits a crime of the third degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent and operates the motor vehicle in a manner that creates a risk of injury to any person or a risk of damage to property.
d. A person commits a crime of the fourth degree if he enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent.
Amended 1979,c.178,s.35A; 1993,c.134.
2C:20-11 Shoplifting
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If someone is criminally indicted for theft, at trial the judge will read to the jurors the following jury instructions of the law:
The following charge is to be used when the factual circumstances indicate an unlawful taking of personal property and the value of the property is in dispute. In other instances, reference must be made to 2C:20-2b to determine the degree of theft. See Charge # 2.291 on GRADATION OF THEFT OFFENSES. Note that 2C:20-2b(2) makes some offenses of the third degree regardless of the value of the property).
The indictment charges the defendant with (here read the indictment) . The statute on which the indictment is based is 2C:20-3a which reads in its pertinent part as follows:
A person is guilty of theft if he unlawfully takes, or exercises control over movable property of another with purpose to deprive him thereof.
(If appropriate, here define "movable property, "property" and "property of another.")
You cannot find the defendant guilty unless you determine that the State has proven the following two elements beyond a reasonable doubt:
First, the State must prove that the defendant unlawfully took (here describe property listed in indictment). In order to prove an unlawful taking, the State need not prove that the property was carried out of the place in which it was kept, but only that it was moved or taken from its original location. If the defendant is found with the stolen property shortly after it was taken, charge the jury that it may draw an inference that the defendant took the property).
Second, the State must prove that at the time the defendant took this property (his/her) purpose was to deprive the owner of the (here describe property). With regard to the requirement of proof of a purpose to deprive another of (his/her) property, you are instructed that a person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. In other words, in order for you to find that the defendant acted purposely, the State must prove beyond a reasonable doubt that at the time the defendant took the property it was (his/her) conscious object to deprive (the owner) of (describe property).
(If appropriate, insert relevant portions of the following definition.) "Deprive" means
(1) to withhold (or cause to be withheld) property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value...or,
(2) to dispose (or cause disposal) of the property so as to make it unlikely that the owner will recover it).
Thus, if you find after a careful consideration of all of the evidence that the State has proven beyond a reasonable doubt each of the elements as I have explained them, then your verdict should be guilty.
However, if the State has not proven each of the elements described above to your satisfaction beyond a reasonable doubt, then your verdict should be not guilty.
1 N.J.S.A. 2C:20-1e - "Movable Property" means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location. Unless the character of the property unlawfully taken is in dispute, the Court may instruct the jury that the property so taken is "(movable) property" under the statute.
N.J.S.A. 2C:20-1g - "Property" means anything of value including real estate, tangible and intangible personal property, trade secrets, contract rights, chooses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power.
N.J.S.A. 2C:20-1b - "Property of Another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property....
2 See Supplementary Note to this Charge; State v. Dancyger, 29 N.J. 76 (1959).
3 When the defendant is found to be in possession of the stolen property within a short time after the theft, see supplement attached to this charge.
Theft penalties increased!
2C:20-1 Definitions.
2C:20-1. Definitions. In chapters 20 and 21, unless a different meaning plainly is required:
a."Deprive" means: (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.
b."Fiduciary" means an executor, general administrator of an intestate, administrator with the will annexed, substituted administrator, guardian, substituted guardian, trustee under any trust, express, implied, resulting or constructive, substituted trustee, executor, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent or officer of a corporation, public or private, temporary administrator, administrator, administrator pendente lite, administrator ad prosequendum, administrator ad litem or other person acting in a similar capacity.
c."Financial institution" means a bank, insurance company, credit union, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
d."Government" means the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.
e."Movable property" means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location. "Immovable property" is all other property.
f."Obtain" means: (1) in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof.
g."Property" means anything of value, including real estate, tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.
h."Property of another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
i."Trade secret" means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula or improvement which is secret and of value. A trade secret shall be presumed to be secret when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.
j."Dealer in property" means a person who buys and sells property as a business.
k."Traffic" means:
(1)To sell, transfer, distribute, dispense or otherwise dispose of property to another person; or
(2)To buy, receive, possess, or obtain control of or use property, with intent to sell, transfer, distribute, dispense or otherwise dispose of such property to another person.
l."Broken succession of title" means lack of regular documents of purchase and transfer by any seller except the manufacturer of the subject property, or possession of documents of purchase and transfer by any buyer without corresponding documents of sale and transfer in possession of seller, or possession of documents of sale and transfer by seller without corresponding documents of purchase and transfer in possession of any buyer.
m."Person" includes any individual or entity or enterprise, as defined herein, holding or capable of holding a legal or beneficial interest in property.
n."Anything of value" means any direct or indirect gain or advantage to any person.
o."Interest in property which has been stolen" means title or right of possession to such property.
p."Stolen property" means property that has been the subject of any unlawful taking.
q."Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities.
r."Attorney General" includes the Attorney General of New Jersey, his assistants and deputies. The term shall also include a county prosecutor or his designated assistant prosecutor, if a county prosecutor is expressly authorized in writing by the Attorney General to carry out the powers conferred on the Attorney General by this chapter.
s."Access device" means property consisting of any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number, personal identification number, or any other data intended to control or limit access to telecommunications or other computer networks in either human readable or computer readable form, either copy or original, that can be used to obtain telephone service.
t."Defaced access device" means any access device, in either human readable or computer readable form, either copy or original, which has been removed, erased, defaced, altered, destroyed, covered or otherwise changed in any manner from its original configuration.
u."Domestic companion animal" means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.
Amended 1981, c.167, s.5; 1984, c.184, s.1; 1997, c.6, s.1; 1998, c.100, s.1.
2C:20-1.1. Offense involving access device; presumption of unlawful purpose
6. In any prosecution for an offense enumerated in chapter 20 of Title 2C of the New Jersey Statutes involving a defaced access device, any removal, erasure, defacement, alteration, destruction, covering or other change in such access device from its original configuration performed by any person other than an authorized manufacturer of, or service provider to access devices shall be presumed to be for an unlawful purpose.
L.1997,c.6,s.6.
2C:20-2 Consolidation of theft offenses; grading; provisions applicable to theft generally.
2C:20-2. Consolidation of Theft Offenses; Grading; Provisions Applicable to Theft Generally. a. Consolidation of Theft Offenses. Conduct denominated theft in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
b.Grading of theft offenses.
(1)Theft constitutes a crime of the second degree if:
(a)The amount involved is $75,000.00 or more;
(b)The property is taken by extortion;
(c)The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 and the quantity is in excess of one kilogram;
(d)The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is $75,000 or more;or
(e)The property stolen is human remains or any part thereof.
(2)Theft constitutes a crime of the third degree if:
(a)The amount involved exceeds $500.00 but is less than $75,000.00;
(b)The property stolen is a firearm, motor vehicle, vessel, boat, horse, domestic companion animal or airplane;
(c)The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 and the amount involved is less than $75,000.00 or is undetermined and the quantity is one kilogram or less;
(d)It is from the person of the victim;
(e)It is in breach of an obligation by a person in his capacity as a fiduciary;
(f)It is by threat not amounting to extortion;
(g)It is of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant;
(h)The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is less than $75,000;
(i)The property stolen is any real or personal property related to, necessary for, or derived from research, regardless of value, including, but not limited to, any sample, specimens and components thereof, research subject, including any warm-blooded or cold-blooded animals being used for research or intended for use in research, supplies, records, data or test results, prototypes or equipment, as well as any proprietary information or other type of information related to research;
(j)The property stolen is a New Jersey Prescription Blank as referred to in R.S.45:14-14; or
(k)The property stolen consists of an access device or a defaced access device.
(3)Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00. If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense.
(4)The amount involved in a theft shall be determined by the trier of fact. The amount shall include, but shall not be limited to, the amount of any State tax avoided, evaded or otherwise unpaid, improperly retained or disposed of. Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.
c.Claim of right. It is an affirmative defense to prosecution for theft that the actor:
(1)Was unaware that the property or service was that of another;
(2)Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did; or
(3) Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented.
d.Theft from spouse. It is no defense that theft was from the actor's spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together.
Amended 1979, c.178, s.33; 1981, c.167, s.6; 1987, c.76, s.31; 1987, c.106, s.5; 1993, c.219, s.3; 1993, c.363; 1995, c.20, s.5; 1996, c.154, s.9; 1997, c.6, s.2; 1998, c.100, s.2; 1999, c.95, s.2.
2C:20-2.1. Additional penalties for theft or unlawful taking of motor vehicle 1. a. In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle shall be subject:
(1) For the first offense, to a penalty of $500.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of one year.
(2) For a second offense, to a penalty of $750.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of two years.
(3) For a third or subsequent offense, to a penalty of $1,000.00, and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for 10 years.
b. The suspension or postponement of the person's license to operate a motor vehicle pursuant to subsection a. of this section shall commence on the day the sentence is imposed. In the case of any person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of one year for a first offense, two years for a second offense or 10 years for a third offense calculated from the day after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving privileges in this State.
c. All penalties provided for in this section shall be collected as provided for the collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4), and shall be distributed in accordance with the provisions of N.J.S.2C:64-6 as if the collected monies were the proceeds of property forfeited pursuant to the provisions of chapter 64. However, the distributed monies are to be used for law enforcement activities related to auto theft.
L.1991,c.83,s.1; amended 1993,c.219,s.4.
2C:20-2.2. Additional fine for auto theft Notwithstanding the provisions of N.J.S.2C:43-3, if the fair market value of the automobile and its contents at the time it was stolen exceeds $7,500.00 and the automobile is not recovered, the court may sentence the defendant to pay a fine for that higher amount.
L.1991,c.83,s.2.
2C:20-3. Theft by unlawful taking or disposition a. Movable property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.
b. Immovable property. A person is guilty of theft if he unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto.
L.1978, c. 95, s. 2C:20-3, eff. Sept. 1, 1979.
2C:20-4. Theft by deception A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:
a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
b. Prevents another from acquiring information which would affect his judgment of a transaction; or
c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
The term "deceive" does not, however, include falsity as to matters having no pecuniary significance, or puffing or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.
L.1978, c. 95, s. 2C:20-4, eff. Sept. 1, 1979.
2C:20-5. Theft by extortion A person is guilty of theft by extortion if he purposely and unlawfully obtains property of another by extortion. A person extorts if he purposely threatens to:
a. Inflict bodily injury on or physically confine or restrain anyone or commit any other criminal offense;
b. Accuse anyone of an offense or cause charges of an offense to be instituted against any person;
c. Expose or publicize any secret or any asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;
d. Take or withhold action as an official, or cause an official to take or withhold action;
e. Bring about or continue a strike, boycott or other collective action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act;
f. Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or
g. Inflict any other harm which would not substantially benefit the actor but which is calculated to materially harm another person.
It is an affirmative defense to prosecution based on paragraphs b, c, d or f that the property obtained was honestly claimed as restitution or indemnification for harm done in the circumstances or as lawful compensation for property or services.
L.1978, c. 95, s. 2C:20-5, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 34, eff. Sept. 1, 1979.
2C:20-6. Theft of property lost, mislaid, or delivered by mistake A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.
L.1978, c. 95, s. 2C:20-6, eff. Sept. 1, 1979.
2C:20-7. Receiving stolen property
2C:20-7. Receiving Stolen Property. a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.
b. Presumption of knowledge. The requisite knowledge or belief is presumed in the case of a person who:
(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or
(2) Has received stolen property in another transaction within the year preceding the transaction charged; or
(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it ;or
(4) Is found in possession of two or more defaced access devices.
Amended 1979, c.178, s.35; 1981, c.290, s.19; 1997, c.6, s.3.
2C:20-7.1. Fencing a. Possession of altered property. Any dealer in property who knew or should have known that the identifying features such as serial numbers and permanently affixed labels of property in his possession have been removed or altered without the consent of the manufacturer is guilty of possession of altered property. It is a defense to a prosecution under this subsection that a person lawfully possesses the usual indicia of ownership in addition to mere possession.
b. Dealing in stolen property. A person is guilty of dealing in stolen property if he traffics in, or initiates, organizes, plans, finances, directs, manages or supervises trafficking in stolen property.
c. The value of the property involved in the violation of this section shall be determined by the trier of fact. The value of the property involved in the violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons.
d. It is an affirmative defense to a prosecution under this section that the actor:
(1) Was unaware that the property or service was that of another;
(2) Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did.
e. In addition to the presumptions contained in N.J.S. 2C:20-7b. the following presumptions are available in the prosecution for a fencing offense:
(1) Proof of the purchase or sale of property at a price substantially below its fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew that it had been stolen;
(2) Proof of the purchase or sale of property by a dealer in that property, out of the regular course of business, or without the usual indicia of ownership other than mere possession, or the property or the job lot of which it is a part was bought, received, possessed or controlled in broken succession of title, so that it cannot be traced, by appropriate documents, in unbroken succession to the manufacturer, in all cases where the regular course of business reasonably indicates records of purchase, transfer or sale, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew that it had been stolen; and
(3) Proof that a person buying or selling property of the sort received obtained such property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess or control it gives rise to an inference that such person knew that it had been stolen.
L.1981, c. 167, s. 7, eff. June 15, 1981.
2C:20-8. Theft of services
2C:20-8. Theft of Services. a. A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means, including but not limited to mechanical or electronic devices or through fraudulent statements, to avoid payment for the service. "Services" include labor or professional service; transportation, telephone, telecommunications, electric, water, gas, cable television, or other public service; accommodation in hotels, restaurants or elsewhere; entertainment; admission to exhibitions; use of vehicles or other movable property. Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.
b. A person commits theft if, having control over the disposition of services of another, to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.
c. Any person who, without permission and for the purpose of obtaining electric current, gas or water with intent to defraud any vendor of electricity, gas or water or a person who is furnished by a vendor with electric current, gas or water:
(1) Connects or causes to be connected by wire or any other device with the wires, cables or conductors of any such vendor or any other person; or
(2) Connects or disconnects the meters, pipes or conduits of such vendor or any other person or in any other manner tampers or interferes with such meters, pipes or conduits, or connects with such meters, pipes or conduits by pipes, conduits or other instruments--is guilty of a disorderly persons offense.
The existence of any of the conditions with reference to meters, pipes, conduits or attachments, described in this subsection, is presumptive evidence that the person to whom gas, electricity or water is at the time being furnished by or through such meters, pipes, conduits or attachments has, with intent to defraud, created or caused to be created with reference to such meters, pipes, conduits or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with gas, electricity or water for less than 31 days or until there has been at least one meter reading.
A violation of this subsection shall be deemed to be a continuing offense as long as the conditions described in this subsection exist.
d. Any person who, without permission or authority, connects or causes to be connected by wires or other devices, any meter erected or set up for the purpose of registering or recording the amount of electric current supplied to any customer by any vendor of electricity within this State, or changes or shunts the wiring leading to or from any such meter, or by any device, appliance or means whatsoever tampers with any such meter so that the meter will not measure or record the full amount of electric current supplied to such customer, is guilty of a disorderly persons offense.
The existence of any of the conditions with reference to meters or attachments described in this subsection is presumptive evidence that the person to whom electricity is at the time being furnished by or through such meters or attachments has, with intent to defraud, created or caused to be created with reference to such meters or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with electricity for less than 31 days or until there has been at least one meter reading.
A violation of this subsection shall be deemed to be a continuing offense as long as the conditions described in this subsection exist.
e. Any person who, with intent to obtain cable television service without payment, in whole or in part, of the lawful charges therefor, or with intent to deprive another of the lawful receipt of such service, damages, cuts, tampers with, installs, taps or makes any connection with, or who displaces, removes, injures or destroys any wire, cable, conduit, apparatus or equipment of a cable television company operating a CATV system; or who, without authority of a cable television company, intentionally prevents, obstructs or delays, by any means or contrivance, the sending, transmission, conveyance, distribution or receipt of programming material carried by equipment of the cable television company operating a CATV system, is a disorderly person.
The existence of any of the conditions with reference to wires, cables, conduits, apparatus or equipment described in this subsection is presumptive evidence that the person to whom cable television service is at the time being furnished has, with intent to obtain cable television service without authorization or compensation or to otherwise defraud, created or caused to be created the condition so existing.
f. Any person who purposely or knowingly manufactures, constructs, sells, offers for sale, distributes or installs any equipment, device or instrument designed or intended to facilitate the interception, decoding or receipt of any cable television service with intent to obtain such service and avoid the lawful payment of the charges therefor to the provider, in whole or in part, is a disorderly person.
Any communications paraphernalia prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
g. Any person who purposely or knowingly maintains or possesses any equipment, device or instrument of the type described in subsection f. of this section or maintains or possesses any equipment, device or instrument actually used to facilitate the interception, decoding or receipt of any cable television service with intent to obtain such service and avoid the lawful payment, in whole or in part, of the charges therefor to the provider, is a disorderly person.
Any communications paraphernalia prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
h. Any person who, with the intent of depriving a telephone company of its lawful charges therefor, purposely or knowingly makes use of any telecommunications service by means of the unauthorized use of any electronic or mechanical device or connection, or by the unauthorized use of billing information, or by the use of a computer, computer equipment or computer software, or by the use of misidentifying or misleading information given to a representative of the telephone company is guilty of a crime of the third degree.
The existence of any of the conditions with reference to electronic or mechanical devices, computers, computer equipment or computer software described in this subsection is presumptive evidence that the person to whom telecommunications service is at the time being furnished has, with intent to obtain telecommunications service without authorization or compensation or to otherwise defraud, created or caused to be created the condition so existing.
i. Any person who purposely or knowingly manufactures, constructs, sells, offers for sale, distributes, installs, or otherwise provides any service, equipment, device, computer, computer equipment, computer software or instrument designed or intended to facilitate the receipt of any telecommunications service and avoid the lawful payment of the charges therefor to the provider, in whole or in part, is guilty of a crime of the third degree.
Any communications paraphernalia, computer, computer equipment or computer software prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
j. Any person who purposely or knowingly maintains or possesses any equipment, device, computer, computer equipment, computer software or instrument of the type described in subsection i. of this section, or maintains or possesses any equipment, device, computer, computer equipment, computer software or instrument actually used to facilitate the receipt of any telecommunications service with intent to obtain such service and avoid the lawful payment, in whole or in part, of the charges therefor to the provider, is guilty of a crime of the third degree.
Any communications paraphernalia, computer, computer equipment or computer software prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.
k. In addition to any other disposition authorized by law, and notwithstanding the provisions of N.J.S.2C:43-3, every person who violates this section shall be sentenced to make restitution to the vendor and to pay a minimum fine of $500.00 for each offense. In determining the amount of restitution, the court shall consider the costs expended by the vendor, including but not limited to the repair and replacement of damaged equipment, the cost of the services unlawfully obtained, investigation expenses, and attorney fees.
l. The presumptions of evidence applicable to offenses defined in subsections c., d., e. and h. of this section shall also apply in any prosecution for theft of services brought pursuant to the provisions of subsection a. or b. of this section.
Amended 1983, c.15, s.1; 1985, c.10; 1989, c.112; 1997, c.6, s.4.
2C:20-9. Theft by failure to make required disposition of property received Theft by Failure to Make Required Disposition of Property Received. A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor's failure to make the required payment or disposition. An officer or employee of the government or of a financial institution is presumed: (a) to know any legal obligation relevant to his criminal liability under this section, and (b) to have dealt with the property as his own if he fails to pay or account upon lawful demand, or if an audit reveals a shortage or falsification of accounts. The fact that any payment or other disposition was made with a subsequently dishonored negotiable instrument shall constitute prima facie evidence of the actor's failure to make the required payment or disposition, and the trier of fact may draw a permissive inference therefrom that the actor did not intend to make the required payment or other disposition.
Amended by L. 1987, c. 76, s. 32.
2C:20-10. Unlawful taking of means of conveyance.
2C:20-10. Unlawful Taking of Means of Conveyance
a. A person commits a disorderly persons offense if, with purpose to withhold temporarily from the owner, he takes, operates, or exercises control over any means of conveyance, other than a motor vehicle, without consent of the owner or other person authorized to give consent. "Means of conveyance" includes but is not limited to motor vehicles, bicycles, motorized bicycles, boats, horses, vessels, surfboards, rafts, skimobiles, airplanes, trains, trams and trailers. It is an affirmative defense to prosecution under subsections a., b. and c. of this section that the actor reasonably believed that the owner or any other person authorized to give consent would have consented to the operation had he known of it.
b. A person commits a crime of the fourth degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent.
c. A person commits a crime of the third degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent and operates the motor vehicle in a manner that creates a risk of injury to any person or a risk of damage to property.
d. A person commits a crime of the fourth degree if he enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent.
Amended 1979,c.178,s.35A; 1993,c.134.
2C:20-11 Shoplifting
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