CREDIT CARD THEFT (MAKE OR EMBOSS)
N.J.S.A.
2C:21-6c(5) model jury charge
The defendant is charged with Credit
Card Theft. Specifically,
(Read Count of Indictment)
The
application section of the statute reads as follows:
A person who, with intent to defraud a purported issuer,
a person or organization providing money, goods, services or anything else of
value, or any other person, falsely makes or falsely embosses a purported
credit card or utters such a credit card is guilty of a crime.
In order
for you to find the defendant guilty, the State must prove the following
elements beyond a reasonable doubt:
1. That the defendant falsely made of
falsely embossed a purported credit card or uttered such a credit card and;
2. That the defendant acted with intent to
defraud a purported issuer, a person or organization providing money, goods,
services, or anything else of value, or any other person.
The
first element that the State must prove beyond a reasonable doubt is that the
defendant falsely made or falsely embossed a purported credit card or uttered
such a credit card.
“Credit
card” means any tangible or intangible instrument or device issued with or
without a fee by an issuer that can be used, alone or in connection with
another means of account access, in obtaining money, goods, services or
anything else of value on credit, including credit cards, credit plates,
account numbers, or any other means of account access.
“Issuer”
means the business organization or financial institution which issues a credit
card or its duly authorized agent.
“Cardholder”
means the person or organization named on the face of a credit card to whom or
for whose benefit the credit card is issued by an issuer.
A
person “falsely makes” a credit card when he/she makes or
draws, in whole or in part, a device or instrument which purports to be the
credit card of a named issuer but which is not such a credit card because the
issuer did not authorize the making or drawing, or when he/she alters a
credit card which was validly issued.
A
person “falsely embosses” a credit card when, without the authorization of the
named issuer, he/she completes a credit card by adding any of the matter, other than the
signature of the cardholder, which an issuer requires to appear on the credit
card before it can be used by a cardholder.
A
person “utters” such a credit card when he/she offers or tenders, transfers or otherwise attempts to pass such a
credit card, or where he/she uses or attempts to use such a credit card.
“To
defraud” means to deprive a person of property or any interest, estate, or
right by deceit or artifice, to cheat.
“Issuer”
means the business organization or financial institution which issues a credit
card or its duly authorized agent.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant acted with intent to defraud the issuer, or a person or organization
providing money, goods, services, or anything else of value, or any other
person.
A person
acts with intent when he/she
acts with purpose. A person acts
purposely with respect to the nature of his/her
conduct or a result thereof if it is his/her
conscious objective 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
is aware of the existence of such circumstances or believes or hopes that they
exist. One can be deemed to be acting
purposely if he/she
acts with design, with a purpose, with a particular objective, if the
individual means to do what he/she does.
Purpose
is a condition of the mind which cannot be seen and can only be determined by
inferences from conduct, words, or acts.
It is not necessary for the State to produce a witness or witnesses who
could testify that defendant acted purposely.
[Charge, if Applicable]
Proof
that the defendant had in his/her possession two or more credit cards which were falsely made or falsely
embossed may give rise to the inference that the defendant acted with
fraudulent intent.[1]
If
you find that the State has proven all of the above elements beyond a
reasonable doubt, then you must find the defendant guilty of the crime charged.
If,
however, you find that the State has failed to prove any of the elements of the
crime beyond a reasonable doubt, you must then find the defendant not guilty.
[1] In the appropriate case, the jury may be
advised that such inference may be made from the presence of the facts set
forth in 2C:21-6c(5) if there is a factual basis to do so in the evidence, State
v. Humphrey, 183 N.J. Super. 580 (Law Division 1982) or, under State
in Interest of L.L.A., 178 N.J. Super. 555 (J.D.R.Ct. 1980), but it
must be made clear that the inference is permissive, not conclusive; that it
must be considered along with other evidence in the case; and that it in no way
shifts the burden of proof from the State to the defendant. See State v. Bott, 53 N.J. 391
and State v. DiRienzo, 53 N.J. 360 (1969) and particularly the
additional instructions and comments to Model Charge 2.271 under N.J.S.A.
2A:139-1. See also 2C:1-13e and Evid.
R.