RECEIVING STOLEN PROPERTY (N.J.S.A.
2C:20-7a) model jury charge 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 three elements beyond a reasonable doubt to
establish that a defendant is guilty of receiving stolen property. These
elements are:
1. That
the defendant knowingly received
(or brought into this State) movable property of another;
3. That
the defendant either knew that the property had been stolen or believed that it
had probably been stolen 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 knowingly received (or
brought into this State) movable property of another. The term “receive” means
to acquire 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, or the identity
of the person from whom the defendant received the property.
A
person acts knowingly with respect to the nature of his/her conduct or the
attendant circumstances 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.[7]
The second element that the State must prove
beyond a reasonable doubt is that the property was stolen. 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.[8]
A person acts
purposely with respect to the nature of his/her conduct or
a result of his/her conduct if
it is the person's conscious object to engage in conduct of that nature or to
cause such a result. That is, a person
acts purposely if he/she means to act in a certain way or to cause a
certain result. A person acts purposely
with respect to attendant circumstances if the person is aware of the existence
of such circumstances or believes or hopes that they exist.[9]
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).
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. I have already defined the term
“knowing” to you in discussing the first
element and I will not repeat it here. 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, purpose,
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 done at 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 knowingly received
(or brought into this State) movable
property of
another;
2. That the property was stolen;
3. That
the defendant either knew that the property had been stolen or believed that
If you find that 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.
Defendant
contends that he/she received (or brought into this State) the
property with purpose to restore it to its owner. I have already defined purpose for you. It is the State’s burden to prove beyond a
reasonable doubt that defendant did not receive (or bring into this State) the
property with purpose to restore it to its owner.
If
you find that the State has proven all three elements of this offense beyond a
reasonable doubt, and you find that the State has proven beyond a reasonable
doubt that defendant did not receive (or bring into this state) the property
with purpose to return it to its owner, 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, or that the State
has failed to prove beyond a reasonable doubt that defendant did not receive
(or bring into this state) the property with purpose to return it to its owner,
you must find the defendant not guilty.
[GRADING]
Since
the value of the property involved determines the degree or severity of the
crime,[12] the State must also prove its value
beyond a reasonable doubt. If you find
the defendant guilty, then you must 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] State v. Hodde, 181
N.J. 375 (2004).
[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] N.J.S.A.
2C:2-2b(2).
[8] N.J.S.A.
2C:20-1a. and p.
[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 is clear 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] N.J.S.A. 2C:20-7a.
[12] 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).