BAD CHECKS
(N.J.S.A. 2C:21‑5) model jury charge
Count
of the indictment charges defendant with
issuing (or passing) bad checks. That section of our statutes provides in
pertinent part that
A person who issues [or passes] a
check or similar sight order for the payment of money, knowing that it will not
be honored by the drawee, commits an offense.
In order
to obtain a conviction, the State must prove each of the following elements
beyond a reasonable doubt
(1) That defendant knowingly issued [or
passed] a check [or sight order] for the payment of money and
(2) That defendant knew at the time he/she
issued [or passed] the check [or sight order] that it would not be honored by
the drawee.
The
first element which the State must prove beyond a reasonable doubt is that
defendant knowingly issued [or passed] a check [or sight order] for the payment
of money. A check is a draft payable on demand and drawn on a bank [or a
cashier’s check or a teller’s check]. An instrument may be a check even though
it is described on its face by another term, such as money order.[1] A sight order is an instrument for the immediate
collection of money.[2]
To issue a check [or sight order] means to move the
check [or sight order] into circulation.[3] To pass a
check [or sight order] means to deliver or circulate or hand the check [or sight
order] from one person to another.[4]
A drawee
is the financial institution at which the issuer had, or made representation
that he/she
had, an account at the time the check [or sight order] was issued [or passed].
The second element which the State must prove beyond a
reasonable doubt is that the defendant knew at the time he/she issued [or passed it] the check [or sight order] that it would not be
honored by the drawee.[5]
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.
[CHARGE IF APPROPRIATE]
(1)
The issuer had no account with the drawee at the time the check [or sight
order] was issued
OR
(2)
Payment was refused by the drawee for lack of funds, upon presentation within
30 days after issue, and the issuer failed to make good within 10 days after
receiving notice of that refusal or after notice has been sent to the issuer's
last known address. Notice of refusal may be given to the issuer orally or in
writing in any reasonable manner by any person.
An
inference is a deduction of fact that may be drawn logically and reasonably
from another fact or group of facts established by the evidence. Whether or not
an inference should be drawn is for you to decide using your own common sense,
knowledge and everyday experience. Ask yourselves is it probable, logical and
reasonable. However, you are never required or compelled to draw an inference.
You alone decide whether the facts and circumstances shown by the evidence
support an inference and you are always free to draw or not to draw an
inference. If you draw an inference, you should weigh it in connection with all
the other evidence in the case, keeping in mind that the burden of proof is
upon the State to prove all the elements of the crime beyond a reasonable
doubt.
If you
find that the State has proven both elements beyond a reasonable doubt, then
you must find the defendant guilty. If you find that the State has failed to
prove any of the elements beyond a reasonable doubt, then you must find the
defendant not guilty.
If you
find that the State has proven each of the elements of this crime beyond a
reasonable doubt, then the State has the burden of proving beyond a reasonable
doubt the amount of the check [or sight order]. You must specify if the amount
of the check [or sight order] is: (a)
$75,000 or more;
(b) $1,000 or more but
less than $75,000;
(c) $200 or more but
less than $1,000; or
(d) less than $200.
[5] There is a difference of opinion as
to whether the State must prove that the defendant intended to defraud the
victim. In State v. Passafiume, 184 N.J. Super. 447, 449 (App.
Div. 1982), the Appellate Division held that passing a bad check requires a
fraudulent intent. However, in State v. Kelm, 289 N.J. Super. 55
(App. Div. 1996), certif. denied, 146 N.J. 68 (1996), without
citing to Passafiume, the Appellate Division determined that the statute
merely required the State to prove that at the time the check was issued or
passed, the defendant knew it would not be honored by the drawee.
