THEFT OF IMMOVABLE
PROPERTY
(N.J.S.A.
2C:20-3b)
The statute upon which the
indictment is based provides in pertinent part that:
A person is guilty of theft if he
unlawfully transfers any interest in immovable property of another with purpose
to benefit himself or another not entitled thereto.
In order to obtain a conviction, the State must prove
each of the following elements beyond a reasonable doubt:
(1) that
defendant unlawfully transferred any interest in immovable property;
(2) that
defendant knew that the transfer was unlawful;
(3) that
defendant knew the immovable property was property of another;
(4) that
defendant’s purpose was to benefit himself/herself or another not entitled
thereto.
The first element which the State
must prove beyond a reasonable doubt is that defendant unlawfully transferred
any interest in immovable property.
Property means anything of value, including [select appropriate phrases]
real estate, tangible and intangible personal property, trade secrets, contract
rights, choses in action and other interests in or claims to wealth, admission
or transportation tickets, captured or domestic animals, food and drink,
electric, gas, steam or other power, financial instruments, information, data,
and computer software, in either human readable or computer readable form,
copies or originals.[1]
In order for me to explain to you
what immovable property is, I must first define what movable property is. 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.[2] Immovable property is all other property.[3]
[Charge
where appropriate]
Additionally,
in order to distinguish between movable and immovable property, theft under
this section of the statute is limited to an unlawful transfer of interest in
such immovable property.
The second element the State must
prove beyond a reasonable doubt is that defendant knew that the transfer was
unlawful. 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. Knowingly is a state of mind
and cannot be seen and can only be determined by inference from conduct, words
or acts. Therefore, it is not necessary
that witnesses be produced by the State to testify that a defendant said that he/she knowingly did something. His/Her
knowledge may be gathered from his/her acts
and his/her
conduct and from all he/she said and did at the particular time and
place and from all the surrounding circumstances reflected in the testimony
[and evidence adduced at trial].
In this case, the State alleges that
the interest transferred in immovable property is as follows [describe interest
as listed in the indictment and developed at the trial]. [Read if
appropriate: Mere use of land of
another without permission, even illegal, destructive use, does not deprive the
owner of the property and is not a crime under this section of the Code of
Criminal Justice.][4]
The third element that the State
must prove beyond a reasonable doubt is that defendant knew that the immovable
property was property of another.
Property of another includes property in which any person other than the
actor has an interest which the actor is not privileged to infringe, regardless
of the fact that the actor also has an interest in the property and regardless
of the fact that the other person might be precluded from civil recovery
because the property was used in an unlawful transaction or was subject to
forfeiture as contraband.[5] Property in the possession of the actor shall
not be deemed property of another who has only a security interest therein,
even if legal title is in the creditor pursuant to a conditional sales contact
or other security agreement.[6] The terms property and property of another
are broadly defined so as to include services and intangibles, anything of
value.[7] Anything of value is defined as any direct or
indirect gain or advantage to any person.[8]
The fourth element which the State
must prove beyond a reasonable doubt is that defendant’s purpose in his/her
unlawful transfer was to benefit himself/herself or
another not entitled thereto.
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 believes or hopes that they exist. A person acts purposely if he/she acts with design, with a specific intent,
with a particular object or purpose, or if he/she means to do what he/she does.
Purpose is a condition of the mind
that cannot be seen and that can be determined only by inferences from conduct,
words or acts. A state of mind is rarely
susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State
produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she
engaged in a particular act. It is
within your power to find that such proof has been furnished beyond a
reasonable doubt by inference, which may arise from the nature of defendant’s
acts and conduct, from all that he/she said and did at the particular time and
place, and from all surrounding circumstances.
If you find that the State has
proven all four elements beyond a reasonable doubt, then you must find
defendant guilty. If you find that the
State has failed to prove any of the elements beyond a reasonable doubt, then
you must find defendant not guilty.
Since the value of the immovable
property [or specific type of property] determines the degree or severity of
the crime, the State must prove its value beyond a reasonable doubt [or the
immovable property taken beyond a reasonable doubt]. If you find defendant guilty, then you must
indicate the value of the property (or whether the movable property is a
specifically enumerated item). [Read to
the jury the Gradation of Theft Offenses charge, N.J.S.A. 2C:20-2b].
