OF PROPERTY RECEIVED
(N.J.S.A.
2C:20-9) model jury charge
A person who purposely obtains or retains
property upon agreement or subject to a known legal obligation to make
specified payments 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.
In order to find the defendant
guilty of this theft offense, the State must prove each of the following
elements beyond a reasonable doubt:
(1) That
the defendant purposely obtained or retained the property;
(2) That
the defendant did so upon agreement, or subject to legal obligation;
(3) That
this agreement or legal obligation required the defendant to make specified
payment or other disposition from the property itself or its proceeds, or from his/her own
property to be reserved in equivalent amount;
(4) That
this legal obligation was known to the defendant;
(5) That
the defendant purposely dealt with the property as if it were his/her own;
and
(6) That
the defendant purposely failed to make the required payment or disposition.
(Charge
the following only if applicable to the facts of the case)
Any payment made with a subsequently
dishonored negotiable instrument, for example, a bad check, shall constitute
evidence of the actor's failure to make the required payment or
disposition. You may infer therefrom
that the actor did not intend to make the required payment or other
disposition.
OR
If
you find that the defendant is an officer or employee of the government or of
any financial institution then you may infer;
(a) That he/she had knowledge of his/her legal obligation to make the specified payment or other
disposition. And
(b) If you find that he/she
failed to pay or account upon lawful demand or if an audit revealed a shortage
or falsification of accounts then you may infer that he/she
dealt with the property as his/her own.
However, you are never required or
compelled to draw an inference. It is
your exclusive province to determine whether the facts and circumstances shown
by the evidence support any inferences and you are always free to accept or
reject them if you wish.
CONTINUE
WITH THE CHARGE
With respect to some of the words
used in defining the elements, I instruct you as follows:
The word "obtain" means to
bring about a transfer or purported transfer of a legal interest in the property, either to the defendant himself/herself or another person.
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 the person is aware of the existence of such
circumstances or believes or hopes that they exist. "With purpose",
"Designed", "With Design", or equivalent terms have the
same meaning.
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.
The word "Property" is
defined as anything of value including tangible or intangible personal
property.
I further instruct you that the
foregoing applies even though it may be impossible to identify particular
property as belonging to the victim at the time the defendant allegedly failed
to make the required payment or disposition because the victim's property may
have been mixed with or joined with other property.
If after a review of all the
evidence you find that the State has failed to prove any one of the elements of
this offense beyond a reasonable doubt, then you must find the defendant not
guilty of the charge.
If you find that the State has
proved all of the elements above beyond a reasonable doubt. Then you must find the defendant guilty of
the charge.