(N.J.S.A. 2C:21-17a(1))
(Defendant) is charged with theft of identity.
[READ APPROPRIATE COUNT OF INDICTMENT]
This charge is based upon a statute providing:
A person commits a crime… if (he/she) impersonates another or assumes a false identity and does an act in such assumed character or false identity for (the) purpose of obtaining a benefit for (himself/herself) or another or to injure or defraud another.
For (defendant) to be found guilty of this offense, the State must prove each of the following elements of the offense beyond a reasonable doubt:
1. That the defendant impersonated another or assumed a false identity; and
2. That the defendant did so purposely; and
3. That the defendant, while in such assumed character or false identity, did any act for the purpose of obtaining a benefit for himself/herself or another or to injure or defraud another.
The first element that the State must prove beyond a reasonable doubt is that (defendant) impersonated another or assumed a false identity. Here, the State contends the defendant purposely impersonated another or assumed the false identity by____________.
To “impersonate” means to assume the character or appearance of another.1
The second element the State must prove beyond a reasonable doubt is that defendant did so purposely.
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 purposely with respect to attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist. Someone acts purposely if he/she acts
1 The American Heritage Dictionary of the English Language, Third College Edition, 1996.
IMPERSONATION: THEFT OF IDENTITY
(N.J.S.A. 2C:21-17a(1))
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with design, with a purpose, with a particular objective in mind, if he/she really means to do what he/she does.
The third element that the State must prove beyond a reasonable doubt is that the defendant, while in such assumed character or false identity, did any act for the purpose of obtaining a benefit for himself/herself or another or to injure or defraud another. “Benefit” means, but is not limited to, any property, any pecuniary amount, any services, any pecuniary amount sought to be avoided or any injury or harm perpetrated on another where there is no pecuniary value.2 “To defraud” means to deprive a person of property or any interest, estate, or right by deceit, artifice, trickery or cheat. To injure means to cause any damage that may ensue to the good name, standing, position or general reputation of the purported author of the statement or deed. It may also mean to misrepresent or injuriously affect the sentiments, opinions, conduct, character, prospects, interest or rights of another.3
The State must prove beyond a reasonable doubt that the defendant did any act, his/her purpose was to obtain a benefit for himself/herself or another or to injure or defraud another. Here, the State contends that (defendant’s) purpose was ___________ [summarize factual contention of State]. WHERE APPROPRIATE, ADD: Defendant contends that his/her purpose was_______________________________________.
[CHARGE IF APPROPRIATE]
[Defendant contends that his/her acts were solely for the purpose of illegally purchasing an alcoholic beverage and/or for obtaining tobacco or other consumer products denied to persons under 18 years of age, and that he/she received only that benefit or service. In order to find the defendant guilty the State must prove beyond a reasonable doubt:
1. The defendant did not have the purpose to purchase an alcoholic beverage and/or tobacco and/or any other consumer product denied to persons under 18 years of age; OR
2. If you find the defendant did have a purpose to purchase an alcoholic beverage and/or tobacco and/or any other consumer product denied to persons under 18 years of age, the
2 N.J.S.A. 2C:21-17a
3 See Cannel, New Jersey Criminal Code Annotated, at 512 (2005) for legislative history behind this expansive definition of injury.
IMPERSONATION: THEFT OF IDENTITY
(N.J.S.A. 2C:21-17a(1))
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State must prove, beyond a reasonable doubt, a.) that defendant received a benefit or service other than those denied to persons under 18 years of age; and/or b.) that in addition to obtaining that benefit or service, defendant perpetrated or attempted to perpetrate an additional injury or fraud on another.4 I have already defined “injury” and “defraud” to you.5]
Purpose is a condition of the mind. It cannot be seen. Often, it can be determined only by inferences drawn from a defendant’s conduct, words or acts as presented in the evidence you have heard and seen. So, it is not necessary that the State produce a witness or witnesses to testify that (defendant) said, for example, that he/she acted purposely when he/she engaged in the conduct with which he/she is charged. You may find that proof of purpose has been furnished beyond a reasonable doubt by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct in question as you have heard from the evidence.
If the State has proven each of these elements beyond a reasonable doubt, [IF APPROPRIATE: or, if you find that defendant acted for the purpose of illegally purchasing alcohol and/or of obtaining tobacco or other consumer products denied to persons under 18 years of age, and that the State has proven beyond a reasonable doubt a.) that defendant received a benefit or service other than those denied to persons under 18 years of age; and/or b.) that in addition to obtaining that benefit or service, defendant perpetrated or attempted to perpetrate an additional injury or fraud on another,] you must find (defendant) guilty of this charge. On the other hand, if the State has failed to prove any of these elements beyond a reasonable doubt, [IF APPROPRIATE: or, if you find that defendant acted for the purpose of illegally purchasing alcohol and/or of obtaining tobacco or other consumer products denied to persons under 18 years of age, but that the State has not proven beyond a reasonable doubt a.) that defendant received a benefit or service other than those denied to persons under 18 years of age; and/or b.) that in addition to obtaining that benefit or service, defendant perpetrated or attempted to perpetrate an additional injury or fraud on another,] you must find (defendant) not guilty.
4 N.J.S.A. 2C:21-17(d) (if defendant is accused of using the personal identifying information of another in violation of N.J.S.A. 33:1-81 and 81.7 or, in cases occurring after September 22, 2005, N.J.S.A. 2C:28-7).
5 Use the appropriate model charge if attempted perpetration of injury or fraud is alleged.
IMPERSONATION: THEFT OF IDENTITY
(N.J.S.A. 2C:21-17a(1))
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If you find the State has proven defendant guilty of theft of identity, then you must determine whether the State has proven beyond a reasonable doubt [that] the benefit:
[CHOOSE APPROPRIATE ALTERNATIVE]
(1) was $75,000 or more, or the offense involved the theft of identity of more than five persons; or
(2) was $500 or more but less than $75,000, or the offense involved the theft identity of at least two but less than five persons6; or
(3) was less than $500 and the offense involved the theft of identity of one person.
6 Prior to September 22, 2005, N.J.S.A. 2C:21-17c(2) read that a defendant would be guilty of a third degree crime "for a second or subsequent offense." On that date, however, the quoted language was deleted from c(2), and c(1) was amended to clarify that "a second or subsequent conviction for such an offense constitutes a crime of the third degree." If the State alleges third degree culpability on this basis, it may be necessary to bifurcate the trial and present proofs of prior conviction(s) to the same or a different jury only after defendant is found guilty of the basic offense. Compare State v. Ragland, 105 N.J. 189, 193-195 (1986) to State v. Brown, 180 N.J. 572, 582-585 (2004).
