(N.J.S.A. 2C:37-2a(2))
Count _____ of the indictment charges defendant with the offense of promoting
gambling. In pertinent part, the indictment alleges that:
(Read material part of Count ____ to jury)
The statute that defendant is accused of violating states that: A [defendant] is guilty of
promoting gambling when he/she knowingly engages in conduct which materially aids any
form of gambling activity.
In order to convict defendant of this offense, the State must prove beyond a reasonable
doubt each of the following elements:
1. That defendant engaged in conduct that materially aided
unlawful gambling activity; and
2. That defendant acted knowingly when he/she engaged in
such conduct.
The first element that the State must prove beyond a reasonable doubt is that
defendant engaged in conduct that materially aided unlawful gambling activity. As used in
the statute, the term “unlawful” means not specifically authorized by law.1 The term
“gambling” means staking or risking something of value upon the outcome of a contest of
chance or a future contingent event not under the actor’s control or influence, upon an
agreement or understanding that he/she will receive something of value in the event of a
certain outcome.2 The form of gambling allegedly involved in this case is [bookmaking or
lottery/policy].
1 See N.J.S.A. 2C:37-1k.
2 See N.J.S.A. 2C:37-1b.
PROMOTING GAMBLING – BY CONDUCT THAT
MATERIALLY AIDS GAMBLING ACTIVITY
(N.J.S.A. 2C:37-2a(2))
Page 2 of 6
[CHARGE AS APPLICABLE]
The term "bookmaking" means advancing gambling activity by unlawfully accepting
bets from members of the public [based] upon the outcome of future contingent events as a
business.3
[OR]
The term “lottery” means an unlawful gambling scheme in which (a) the players pay
or agree to pay something of value for chances, represented and differentiated by numbers or
by combinations of numbers or by some other media, one or more of which chances are to be
designated the winning ones; and (b) the winning chances are to be determined by a drawing
or by some other method based upon the element of chance; and (c) the holders of the
winning chances are to receive something of value.4
[OR]
The term “policy” or “the numbers game” means a form of lottery in which the
winning chances or plays are not determined upon the basis of a drawing or other act on the
part of persons conducting or connected with the scheme, but upon the basis of the outcome
or outcomes of a future contingent event or events otherwise unrelated to the particular
scheme.5
The term materially aids gambling activity includes but is not limited to conduct
directed toward the creating or establishment of the particular game, contest, scheme, device
or activity involved; toward the acquisition or maintenance of premises, paraphernalia,
equipment or apparatus therefore; toward the solicitation or inducement of persons to
participate therein; toward the actual conduct of the playing phases thereof; toward the
arrangement of any of its financial or recording phases, or toward any other phase of its
3 See N.J.S.A. 2C:37-1g.
4 See N.J.S.A. 2C:37-1h.
5 See N.J.S.A. 2C:37-1i.
PROMOTING GAMBLING – BY CONDUCT THAT
MATERIALLY AIDS GAMBLING ACTIVITY
(N.J.S.A. 2C:37-2a(2))
Page 3 of 6
operation.6 It is not necessary, however, for the State to prove that defendant received any
compensation for his conduct.7
The second element that the State must prove beyond a reasonable doubt is that
defendant acted knowingly when he/she engaged in such conduct. A defendant acts
knowingly or with knowledge with respect to the nature of his/her conduct or the attendant
circumstances if defendant is aware that his/her conduct is of that nature, or that such
circumstances exist, or defendant is aware of a high probability of their existence. A
defendant acts knowingly with respect to a result of his/her conduct if defendant is aware that
it is practically certain that his/her conduct will cause such a result.8 In this case, it is alleged
that defendant knew that he/she was providing material aid to a gambling activity when
he/she [insert act[s] alleged.]
You should understand that knowledge is a condition of the mind. It cannot be seen.
It can only be determined by inferences from conduct, words or acts. Therefore, it is not
necessary for the State to produce witnesses to testify that defendant stated, for example, that
he/she acted with knowledge when he/she did a particular thing. It is within your power to
find that proof of knowledge has been furnished beyond a reasonable doubt by inference
which may arise from the nature of the acts and the surrounding circumstances. The place
where the acts occurred and all that was done or said by defendant preceding, connected with,
and immediately succeeding the events in question are among the circumstances to be
considered.
* * * * *
[STATUTORY DEFENSE – CHARGE IF APPLICABLE]
Defendant contends that he/she is not guilty of promoting gambling because he/she
was a player rather than a provider of material aid to the gambling activity. Under the statute,
6 See N.J.S.A. 2C:37-2a(2). As noted therein, the examples provided in the statute are not to be
considered exhaustive of the ways in which a defendant can materially aid gambling activity.
7 See 33A New Jersey Practice (Miller), § 572 at 7.
8 See N.J.S.A. 2C:2-2b(2).
PROMOTING GAMBLING – BY CONDUCT THAT
MATERIALLY AIDS GAMBLING ACTIVITY
(N.J.S.A. 2C:37-2a(2))
Page 4 of 6
it is a defense to the charge of promoting gambling that defendant was a player rather than a
participant in the [bookmaking/lottery/policy] scheme or enterprise.
A "player" means a person who engages in any form of gambling as a contestant or
bettor, without receiving or becoming entitled to receive any profit therefrom other than
his/her personal gambling winnings, and who does not otherwise render any material
assistance to the establishment, conduct or operation of the particular gambling activity.9
Defendant must prove this defense by clear and convincing evidence.10 This is to be
distinguished from the State's burden of proving defendant's guilt beyond a reasonable doubt.
Clear and convincing evidence is that which produces in your mind a firm belief or conviction
as to the truth of the fact sought to be established and is evidence so clear, direct, weighty and
convincing as to enable you to come to a clear conviction, without hesitancy, of the truth of
the matter in issue.11
Regarding the "player" defense asserted in this case, defendant need not prove that
he/she was a player beyond a reasonable doubt, but rather, the evidence admitted in support of
this defense should produce in your mind a firm belief or conviction that defendant's
contention that he/she participated only as a player is true. In other words, the law does not
require absolute certainty that defendant participated as a player, but reasonable certainty that
it is true. If you find by clear and convincing evidence that defendant was a player rather than
a participant in a [bookmaking/lottery/policy] scheme or enterprise, he/she must be found not
guilty of Count ____.
* * * * * *
If you find that the State has failed to proved beyond a reasonable doubt any of the
elements of the offense, you must find defendant not guilty. But if you determine that the
State has proved each of the elements of promoting gambling through providing material aid
9 See N.J.S.A. 2C:37-1c.
10 See N.J.S.A. 2C:37-2c.
11 See In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981),
mod. o.g. and aff'd 90 N.J. 361 (1982), cert. den. sub nom. Perlman v. Attorney General of New Jersey, 459 U.S.
1081 (1982).
PROMOTING GAMBLING – BY CONDUCT THAT
MATERIALLY AIDS GAMBLING ACTIVITY
(N.J.S.A. 2C:37-2a(2))
Page 5 of 6
to gambling activity beyond a reasonable doubt, you must find defendant guilty of that
offense.
If you conclude that defendant is guilty of the offense, you must then determine
whether the State has proved the following beyond a reasonable doubt:
[CHARGE AS APPLICABLE]
In providing material aid to a bookmaking scheme or operation,
1. That defendant aided a bookmaking scheme or operation that
received or accepted in any one day more than five bets totaling
more than $1,000.12
YES ________ NO ________
2. If the answer to the above question is NO, determine whether the
State has proved beyond a reasonable doubt that defendant aided a
bookmaking scheme or operation that received or accepted three or
more bets in any two week period.13
YES ________ NO ________
[OR]
In providing material aid to a [lottery/policy] scheme or operation,
1. That defendant aided a [lottery/policy] scheme or operation that
received money or written records from a person whose chances or
plays are represented by such money or records.
YES ________ NO ________
[OR]
12 Conviction on this form of promoting gambling through bookmaking is a third degree offense. See
N.J.S.A. 2C:37-2b(1).
13 Conviction on this form of promoting gambling through bookmaking is a fourth degree offense.
Otherwise, promoting gambling is a disorderly person’s offense. See N.J.S.A. 2C:37-2b(2). If a verdict sheet is
to be submitted to the jury, the jury's findings on these gradation of offense issues should be indicated on it.
PROMOTING GAMBLING – BY CONDUCT THAT
MATERIALLY AIDS GAMBLING ACTIVITY
(N.J.S.A. 2C:37-2a(2))
Page 6 of 6
2. That defendant aided a [lottery/policy] scheme or operation that
received more than $100 in any one day of money played in that
[lottery/policy] scheme or enterprise.14
YES ________ NO ________
14 Promoting gambling to the extent noted above is a third degree offense. Otherwise, promoting
gambling through materially aiding an unlawful lottery/policy scheme or enterprise is a disorderly person’s
offense. See N.J.S.A. 2C:37-2b(2).
