Monday, August 13, 2007

THEFT BY DECEPTION

(N.J.S.A. 2C:20-4)
The defendant is charged with committing the offense of theft by deception. A person is guilty of this form of theft if (he/she) purposely obtains property of another by deception.
(If appropriate here define, as applicable: "Property" (N.J.S.A. 2C:20-lg) or "Property of another" (N.J.S.A. 2C:20-1h).
The State therefore must prove, beyond a reasonable doubt, each of the following three elements of the crime:
First, the State must prove, that the defendant obtained the property of another.
(Charge here if applicable:
"Obtain" means to bring about a transfer or an apparent transfer of a legal interest in the property, either to the defendant (himself/herself) or to another person.)
Second, the State must prove that the defendant purposely obtained that property by deception. "Purposely" means that it was defendant's conscious object to deceive and thereby to obtain the property in question.
A person deceives if (he/she) purposely:
(Charge only appropriate portion or portions:
(1) Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind. However, you are not to infer deception as to defendant's intention to perform a promise from the mere fact that (he/she) did not in fact perform that promise. The State must present some other facts to prove that (he/she) originally made the promise with no intention of carrying it out.
or
(2) Prevents another from acquiring information which would affect (his/her) judgment of a transaction.
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or
(3) Fails to correct a false impression which (he/she) originally created or reinforced, or which (he/she) knew to be influencing another person with whom (he/she) stands in a confidential relationship or position of trust. If the defendant stood in such a relationship of trust or confidence with the victim, (he/she) had a duty to correct that false impression.)
Third, the State must prove that the victim relied upon the deception which caused (him/her) to part with (his/her) property. If the victim did not turn over property in reliance on any deception, then you may not find the defendant guilty of obtaining the property by deception.1
(Charge here if applicable:
The term "deception," however, does not include falsity as to matters having no significance as to money or value, or puffing or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.2
Further, not only must the defendant's statements or other core communications have been false, but the defendant must have known this. If you find that the defendant in fact believed in the accuracy of the impression created or reinforced, you must find him or her not guilty of theft by deception even though (his/her) belief in the accuracy of the impression created or reinforced was unreasonable.3
Now if you find that the State has failed to prove any one or more of these elements of
1 State v. Marvin Mann, 244 N.J. Super. 622 (App. Div. 1990)
2 Language in the previous charge stating that it is no defense that a reasonable person would not have been misled was deleted by the Committee because of its apparent inconsistency with the last paragraph of N.J.S.A. 2C:20-4. See The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission, Volume II: Commentary, at 233. for the source of the deleted language.
3 The New Jersey Penal Code, Final Report of the New Jersey Criminal Revision Commission, Volume II: Commentary, note 1, at 224-225.
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the crime beyond a reasonable doubt, then you must find the defendant not guilty of theft by deception. If you find, however, that the State has proved all the elements of the crime beyond a reasonable doubt, then you must find the defendant guilty of theft by deception.4
(If affirmative defense of claim of right is raised, charge here as applicable. N.J.S.A. 2C:20-2c)
(If applicable, charge here on Gradation of Theft Offenses. (N.J.S.A. 2C:20-2b)
4 Where the facts so warrant the Court should charge attempted theft, which is a lesser-included offense, which need not be separately charged in the indictment. See State v. Mann, 244 N.J. Super, 622 (App. Div. 1990).