IMPERSONATION;
THEFT OF IDENTITY
(N.J.S.A.
2C:21-17a) model jury charge
Count_____________ of the indictment charges defendant with impersonation
or theft of identity.
[READ
COUNT OF INDICTMENT]
The pertinent part of the statute on
which the indictment is based provides that a person is guilty of theft of
identity or impersonation if he or she:
[CHOOSE APPLICABLE SUBSECTION(S)]
(1) Impersonates
another or assumes a false identity and does an act in such assumed character
or false identity for the purpose of obtaining a benefit for himself or another
or to injure or defraud another;
OR
(2) Pretends
to be a representative of some person or organization and does an act in such pretended capacity for the purpose
of obtaining a benefit for himself or
another or to injure or defraud another;
OR
(3) Impersonates
another, assumes a false identity or makes a false or misleading statement
regarding the identity of any person, in an oral or written application for
services, for the purpose of obtaining services;
OR
(4) Obtains
any personal identifying information pertaining to another person and uses that
information, or assists another person in using the information, in order to
assume the identity of or represent himself as another person, without that
person's authorization and with the purpose to fraudulently obtain or attempt
to obtain a benefit or services, or avoid the payment of debt or other legal
obligation or avoid prosecution for a crime by using the name of the other
person;
OR
(5) Impersonates
another, assumes a false identity or makes a false or misleading statement, in
the course of making an oral or written application for services, with the
purpose of avoiding payment for prior services.
[CHARGE
IF A VIOLATION OF N.J.S.A. 2C:21-17a(1) IS ALLEGED]
In
order for defendant to be found guilty of this offense, the State must prove
the following three elements of the crime beyond a reasonable doubt:
1. defendant knowingly[1]
impersonated another or assumed a false identity;
2. defendant knowingly did an act in such
assumed character or false identity; and
3. defendant’s purpose in doing that act was
to obtain a benefit for himself/herself, or
to obtain a benefit for
another, or
to injure another, or
to defraud another.
The
first element that the State must prove beyond a reasonable doubt is that
defendant knowingly impersonated
another or knowingly assumed a false identity.
To “impersonate” means to assume the character or appearance of another,
or to imitate the appearance, voice, or manner of another.[2]
Here, the State alleges that the defendant impersonated another or
assumed a false identity by [describe].
A person acts
knowingly with respect to the nature of his/her conduct or the
attendant circumstances if he/she is aware that
the conduct is of that nature or that such circumstances exist or the person is
aware of a high probability of their existence.
A person acts knowingly with respect to a result of the conduct if he/she is aware that
it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent
terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
The
second element the State must prove beyond a reasonable doubt is that defendant
knowingly did an act in that assumed character or false identity.
The third element that the State must
prove beyond a reasonable doubt is that defendant purposely: [CHOOSE
APPROPRIATE: obtained a benefit for himself/herself; obtained a benefit for another; injured another; or
defrauded another].
“Obtain” means (1) in relation to
property, to bring about a transfer or purported transfer of a legal interest
in the property, whether to oneself or another; or (2) in relation to labor or
service, to secure performance thereof.[3]
"Benefit" means, but is not limited to, any property, any pecuniary
amount, any services, any pecuniary amount sought to be avoided or any injury
or harm perpetrated
on another where there is no pecuniary
value.[4] To defraud means to deprive a person of
property or any interest, estate, or right by deceit, artifice, trickery or
cheat. To injure means to cause any
damage that may ensue to the good name, standing, position or general
reputation of (victim’s name). It may
also mean to misrepresent or injuriously affect the sentiments, opinions,
conduct, character, prospects, interests or rights of another.[5]
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 individual is aware of
the existence of such circumstances or the individual believes or hopes that
they exist. “With purpose,” “designed,”
“with design” or equivalent terms have the same meaning.
The term purposely refers to a condition
of the mind. A condition of the mind
cannot be seen. It can only be
determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
[CHARGE
IF A VIOLATION OF N.J.S.A. 2C:21-17a(2) IS ALLEGED]
In
order for defendant to be found guilty of this offense, the State must prove
the following three elements of the crime beyond a reasonable doubt:
1. defendant knowingly pretended to be a
representative of a person or organization;
2. defendant knowingly did an act in such
pretended capacity; and
3. defendant’s purpose in doing that act was
to obtain a benefit for himself/herself, or
to obtain a benefit for
another, or
to injure another, or
to defraud another.
The first element that the State must
prove beyond a reasonable doubt is that defendant knowingly pretended to be a
representative of a person or organization.
[Charge if appropriate: In addition to its ordinary meaning,
“person” includes any individual or entity or enterprise[6]
capable of holding a legal or beneficial interest in property.] Here, the State contends the defendant
pretended to be a representative of [person or organization] by [describe].
A person acts
knowingly with respect to the nature of his/her conduct or the
attendant circumstances if he/she is aware that
the conduct is of that nature or that such circumstances exist or the person is
aware of a high probability of their existence.
A person acts knowingly with respect to a result of the conduct if he/she is aware that
it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent
terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
The
second element that the State must prove beyond a reasonable doubt is that
defendant knowingly did an act in such pretended capacity.
The third element that the State must prove
is that the defendant had the purpose to:
[CHOOSE APPROPRIATE: obtain a benefit for himself/herself; obtain a benefit for another; or injure another].
"Benefit" means, but is not
limited to, any property, any pecuniary amount, any services, any pecuniary
amount sought to be avoided or any injury or harm perpetrated on another where
there is no pecuniary value. To injure
means to cause any damage that may ensue to the good name, standing, position
or general reputation of the purported author of the statement. It may also mean to misrepresent or
injuriously affect the sentiments, opinions, conduct, character, prospects,
interest or rights of another.[7]
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 individual is aware of
the existence of such circumstances or the individual believes or hopes that
they exist. “With purpose,” “designed,”
“with design” or equivalent terms have the same meaning.
The term purposely refers to a condition
of the mind. A condition of the mind
cannot be seen. It can only be
determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
[CHARGE
IF A VIOLATION OF N.J.S.A. 2C:21-17a(3) IS ALLEGED]
In
order for defendant to be found guilty of this offense, the State must prove
the following three elements of the crime beyond a reasonable doubt:
1. defendant knowingly [Choose appropriate: impersonated
another, or assumed a false identity, or
made a false statement regarding the
identity of any person, or
made a misleading
statement regarding the identity of any person];
2. defendant’s impersonation, assumption of
false identity, or false or misleading statement regarding identity was made in
an oral or written application for services; and
3. defendant had the purpose to obtain
services.
The first element that the State must
prove beyond a reasonable doubt is that defendant knowingly either:
impersonated another person; assumed a false identity; made a false statement
regarding the identity of any person; or made a misleading statement regarding
the identity of any person. [Choose
appropriate: (To
“impersonate” means to assume the character or appearance of another, or to
imitate the appearance, voice, or manner of another.) (I have already
instructed you on the meaning of “impersonate.”)] [Charge if appropriate: In addition to its ordinary meaning, “person”
includes any individual or entity or enterprise[8]
capable of holding a legal or beneficial interest in property.] Here, the State contends that defendant
[describe conduct].
A person acts
knowingly with respect to the nature of his/her conduct or the
attendant circumstances if he/she is aware that
the conduct is of that nature or that such circumstances exist or the person is
aware of a high probability of their existence.
A person acts knowingly with respect to a result of the conduct if he/she is aware that
it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent
terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
The
second element that the State must prove beyond a reasonable doubt is that
defendant’s impersonation, assumption of false identity, or false or misleading
statement regarding identity was made in an oral or written application for
services, namely [describe services for which defendant applied].
The third element that the State must
prove beyond a reasonable doubt is that defendant had the purpose to obtain
services.
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 individual is aware of
the existence of such circumstances or the individual believes or hopes that
they exist. “With purpose,” “designed,”
“with design” or equivalent terms have the same meaning.
The term purposely refers to a condition
of the mind. A condition of the mind
cannot be seen. It can only be
determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
[CHARGE
IF A VIOLATION OF N.J.S.A. 2C:21-17a(4) IS ALLEGED]
In
order for defendant to be found guilty of this offense, the State must prove
the following four elements of the crime beyond a reasonable doubt:
1. defendant knowingly obtained personal identifying information pertaining to another person;
2. defendant purposely[9] used the information or assisted another
person to use the information in order to assume the identity of another person
or to represent himself/herself as another person;
3. defendant knew that he/she lacked (victim’s name)’s authorization to use his/her
personal information; and
4. defendant had the purpose to [CHOOSE APPROPRIATE:
fraudulently obtain a benefit
or services, or
attempt to obtain a benefit
or services, or
avoid the payment of debt or
other legal obligation, or
avoid prosecution for a crime
by using the name of the other person].
The first element that the State must
prove beyond a reasonable doubt is that defendant knowingly obtained any
personal identifying information pertaining to another person. [Charge
if appropriate: In addition to its
ordinary meaning, “person” includes any individual or entity or enterprise[10]
capable of holding a legal or beneficial interest in property.] “Personal identifying information” means any
name, number or other information that may be used, alone or in conjunction
with any other information, to identify a specific individual and includes, but
is not limited to, the name, address, telephone number, date of birth, social security number, official State issued
identification number, employer or taxpayer number, place of employment,
employee identification number, demand deposit account number, savings account
number, credit card number, mother's maiden name, unique biometric data, such
as fingerprint, voice print, retina or iris image or other unique physical
representation, or unique electronic identification number, address or routing
code of the individual.[11] Here, the State alleges that the
defendant obtained the [specify personal information] of [specify person].
A person acts
knowingly with respect to the nature of his/her conduct or the
attendant circumstances if he/she is aware that
the conduct is of that nature or that such circumstances exist or the person is
aware of a high probability of their existence.
A person acts knowingly with respect to a result of the conduct if he/she is aware that
it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent
terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
The second element that the State must
prove beyond a reasonable doubt is that defendant purposely either used that
information or assisted another person in using the information in order to
assume the identity of another person or to represent himself/herself as another person.
Here, the State alleges that defendant [describe use or assisted use].
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 individual is aware of the existence of such circumstances
or the individual believes or hopes that they exist. “With purpose,” “designed,” “with design” or
equivalent terms have the same meaning.
The term purposely refers to a condition
of the mind. A condition of the mind
cannot be seen. It can only be
determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
The third element the State must prove
beyond a reasonable doubt is that defendant knew that he/she lacked the authorization of [victim’s name] to use his/her
personal information.
[CHARGE
IF DEFENDANT IS ALLEGED TO HAVE
fraudulently obtained a benefit or services,
avoided the payment of debt or other legal
obligation, or avoidED prosecution for a crime by using the name of the other
person in order to fulfill the FIFTH ELEMENT OF N.J.S.A.
2C:21-17a(4).]
The fourth element that the State must
prove beyond a reasonable doubt is that defendant had the purpose to: [CHOOSE
APPROPRIATE: fraudulently obtain a
benefit or services; avoid the payment of debt or other legal obligation; or
avoid prosecution for a crime by using the name of the other person].
[Choose
appropriate: ("Benefit"
means, but is not limited to, any property, any pecuniary amount, any services,
any pecuniary amount sought to be avoided or any injury or harm perpetrated on
another where there is no pecuniary value.)
(I have already instructed you on the meaning of “benefit.”)]
[CHARGE
IF DEFENDANT IS ALLEGED TO HAVE ATTEMPTED TO OBTAIN A BENEFIT OR SERVICES
UNDER
THE FIFTH ELEMENT OF N.J.S.A. 2C:21-17a(4).]
The fourth element that the State must
prove beyond a reasonable doubt is that defendant purposely attempted to obtain
a benefit or services.
[Choose appropriate: ("Benefit" means, but is not
limited to, any property, any pecuniary amount, any services, any pecuniary
amount sought to be avoided or any injury or harm perpetrated on another where there
is no pecuniary value.) (I have already
instructed you on the meaning of “benefit.”)]
The law provides that a person attempts
to obtain a benefit or services when, acting purposely, he/she: [12]
[Select
appropriate section]
Engaged
in conduct that would cause him/her to fraudulently obtain a benefit or services if the
attendant circumstances were as a reasonable person would believe them to be;
[or]
Did
or omitted to do anything with the purpose of fraudulently obtaining a benefit
or services without further conduct on his/her part. This means
that the defendant(s) did something designed to fraudulently obtain a benefit
or services without having to take any further action.
[or]
Did
or omitted to do anything which, under the circumstances as a reasonable person
would believe them to be, was an act or omission constituting a substantial
step in the course of conduct planned to culminate in him/her fraudulently obtaining a benefit or services. The step taken must be one that is strongly corroborative
of the defendant’s criminal purpose. The
accused must be shown to have had a firmness of criminal purpose in light of
the step(s) he/she had already taken.
These preparatory steps must be substantial and not just very remote preparatory
acts.[13]
[CHARGE
IF A VIOLATION OF N.J.S.A. 2C:21-17a(5) IS ALLEGED]
In
order for defendant to be found guilty of this offense, the State must prove the
following three elements of the crime beyond a reasonable doubt:
1. defendant knowingly [CHOOSE APPROPRIATE:
impersonated
another, or
assumed a false identity, or
made a false statement, or
made
a misleading statement];
2. the impersonation, assumption of false
identity, false statement, or misleading statement occurred in the course of him/her making an oral or written application for services; and
3. the impersonation, assumption of false
identity, false statement, or misleading statement was made with the purpose of
avoiding payment for prior services.
The first element that the State must
prove beyond a reasonable doubt is that defendant knowingly: [CHOOSE APPROPRIATE: impersonated another; assumed a false
identity; made a false statement; or made a misleading statement]. [Choose
appropriate: (To “impersonate” means
to assume the character or appearance of another, or to imitate the appearance,
voice, or manner of another.) (I have already instructed you on the meaning of
“impersonate.”)] Here, the State alleges
that defendant [describe conduct].
A person acts
knowingly with respect to the nature of his/her conduct or the
attendant circumstances if he/she is aware that
the conduct is of that nature or that such circumstances exist or the person is
aware of a high probability of their existence.
A person acts knowingly with respect to a result of the conduct if he/she is aware that
it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent
terms have the same meaning.
Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by inference from defendant’s 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 did a particular thing.
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 his/her acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
The second element that the State must
prove beyond a reasonable doubt is that defendant’s [CHOOSE APPROPRIATE: impersonation, assumption of false identity,
false statement, or misleading statement] occurred in the course of making an
oral or written application for services.
The third element that the State must
prove beyond a reasonable doubt is that defendant had the purpose to avoid
payment for prior services.
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 individual is aware of
the existence of such circumstances or the individual believes or hopes that
they exist. “With purpose,” “designed,”
“with design” or equivalent terms have the same meaning.
The term purposely refers to a condition
of the mind. A condition of the mind
cannot be seen. It can only be
determined by inference from defendant’s 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
did a particular thing. 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 his/her acts and conduct and from all he/she
said and did at the particular time and place and from all surrounding
circumstances established by the evidence.
[ADDITIONAL INFERENCE APPLICABLE
TO
ALLEGED VIOLATIONS OF N.J.S.A. 2C:21-17a(5)]
Purpose to avoid payment for prior services may be inferred
from proof that defendant has not made full payment for prior services and has
impersonated another, assumed a false identity or made a false or misleading
statement regarding the identity of any person in the course of making oral or
written application for those services.[14] 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.
[RESUME
CHARGE IN ALL CASES]
If the State has proven each of the elements of this crime
beyond a reasonable doubt, then you must find defendant guilty of
impersonation/identity theft. On the
other hand, if the State has failed to prove any element beyond a reasonable
doubt, you must find him/her not guilty.[15]
However, if you find defendant guilty
beyond a reasonable doubt, you must then go on to consider whether the State
has proven the following beyond a reasonable doubt:
[CHARGE IF SECOND DEGREE
ALLEGED
BASED UPON NUMBER OF
VICTIMS][16]
You must determine the number of
individuals whose identity or personal information defendant is alleged to have
stolen or misused. Specifically,
indicate on the verdict sheet whether the State has proven beyond a reasonable
doubt that the number of individuals whose identities were stolen or misused
was:
a. five or more;
b. at least two but less than five; or
c. only one.
[CHARGE IF SECOND DEGREE
ALLEGED
BASED UPON DERIVATION OF
BENEFIT]
You must determine whether the State has
proven beyond a reasonable doubt that defendant derived a benefit as a result
of the impersonation or identity theft(s).
[As I have already said,] "Benefit" means, but is not limited
to, any property, any pecuniary amount, any services, any pecuniary amount
sought to be avoided or any injury or harm perpetrated on another where there
is no pecuniary value. Please indicate
whether the State has proven that defendant derived a benefit from the alleged impersonation
or identity theft beyond a reasonable doubt by marking “yes” or “no” on your
verdict sheet.
If
you have both determined that defendant is guilty of theft of identity and
found that defendant derived a benefit from the theft, then you must go on to
determine the value of that benefit. Specifically, indicate on the verdict
sheet if the State has proven beyond a reasonable doubt that the benefit that
defendant derived has a value that:
[choose appropriate sections]
a. is
$75,000 or more;
b. at
least $500, but is less than $75,000;
c. is
less than $500.
If you find that the benefit(s) derived
were taken in impersonations or identity thefts committed pursuant to one
scheme or course of conduct, the amounts may be added together to form a single
total amount, whether derived from one source or several sources.[17]
[CHARGE IF THIRD DEGREE
ALLEGED
BASED UPON NUMBER OF
VICTIMS]
You must determine the number of
individuals whose identity or personal information defendant is alleged to have
stolen or misused. Specifically,
indicate on the verdict sheet whether the State has proven beyond a reasonable
doubt that the number of individuals whose identities were stolen or misused
was:
a. at least two but less than five; or
b. only one.
[CHARGE IF THIRD DEGREE
ALLEGED
BASED UPON DERIVATION OF BENEFIT]
You must determine whether the State has
proven beyond a reasonable doubt that defendant
derived a benefit as a result of the
impersonation or identity theft(s). [As
I have already said,] "Benefit" means, but is not limited to, any
property, any pecuniary amount, any services, any pecuniary amount sought to be
avoided or any injury or harm perpetrated on another where there is no
pecuniary value. Please indicate whether
the State has proven that defendant derived a benefit from the alleged
impersonation or identity theft beyond a reasonable doubt by marking “yes” or
“no” on your verdict sheet.
If
you have both determined that defendant is guilty of theft of identity and
found that defendant derived a benefit from the theft, then you must go on to
determine the value of that benefit. Specifically, indicate on the verdict
sheet if the State has proven beyond a reasonable doubt that the benefit that
defendant derived has a value that:
[choose appropriate sections]
a. at
least $500, but is less than $75,000;
b. is
less than $500.
If you find that the benefit(s) derived
were taken in impersonations or identity thefts committed pursuant to one
scheme or course of conduct, the amounts may be added together to form a single
total amount, whether derived from one source or several sources.[18]
[CHARGE WHEN
BENEFIT AT ISSUE IS
SOMETHING OTHER
THAN MONEY]
In this case, the State alleges that the
benefit derived was something other than money. You must determine the value of that
benefit. Value means the fair market
value of the benefit at the time and place of the alleged impersonation or identity
theft.[19] Fair
market value is 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.
Here, the State has provided you with
evidence of the value of the benefit by [describe testimony or other evidence
used to establish value]. The State has
the burden of proving the fair market value of the benefit involved. This means
that you must be satisfied beyond a reasonable doubt that the benefit is worth
what the State claims.
[CHARGE IF DEFENDANT IS
ALLEGED TO HAVE USED PERSONAL INFORMATION OF OTHER(S) TO PURCHASE ALCOHOL/
TOBACCO/
A CONSUMER PRODUCT DENIED
TO THOSE UNDER 18]
Here the State has alleged that defendant
used the personal identifying information of another to illegally (purchase
(an) alcoholic beverage(s)) (obtain tobacco) (obtain a consumer product denied
to persons under 18 years of age). If
you find that the State has proven beyond a reasonable doubt that defendant
purchased or obtained _____________, you must then go on to make two additional
factual findings. Specifically, you must
first determine whether the State has proven that defendant received any
benefit or service beyond the purchase or procurement of the consumer product
beyond a reasonable doubt. Please do so
by indicating “yes” or “no” on your verdict sheet.
Second, you must determine whether the
State has proven that defendant perpetrated or attempted to perpetrate an
additional injury or additional fraud upon another person beyond a reasonable
doubt. I will remind you of the
definitions of “injury” and “fraud.” To
defraud means to deprive a person of property or any interest, estate, or right
by deceit, artifice, trickery or cheat.
To injure means to cause any damage that may ensue to the good name,
standing, position or general reputation of the purported author of the
statement. It may also mean to
misrepresent or injuriously affect the sentiments, opinions, conduct,
character, prospects, interest or rights of another.
[CHARGE IF ATTEMPT TO COMMIT ADDITIONAL
INJURY OR ADDITIONAL FRAUD IS ALLEGED DURING THE COURSE OF USING PERSONAL
INFORMATION OF OTHER(S) TO PURCHASE ALCOHOL/ TOBACCO/
A CONSUMER PRODUCT DENIED
TO THOSE UNDER 18]
The law provides that a person attempts
to cause additional injury or fraud if, acting purposely, he/she:[20]
[Select
appropriate section]
Engaged
in conduct that would cause additional injury or fraud if the attendant
circumstances were as a reasonable person would believe them to be;
[or]
Did
or omitted to do anything with the purpose of causing injury or fraud without
further conduct on his/her part. This
means that defendant(s) did something designed to cause additional injury or
fraud without having to take any further action.
[or]
Did
or omitted to do anything which, under the circumstances as a reasonable person
would believe them to be, was an act of omission constituting a substantial
step in the course of conduct planned to culminate in additional injury or
fraud. The step taken must be one that
is strongly corroborative of defendant’s criminal purpose. The accused must be shown to have had a
firmness of criminal purpose in light of the step(s) he/she had already
taken. These preparatory steps must be
substantial and not just very remote preparatory acts.[21] I have already defined purposely for you.
[RESUME STANDARD CHARGE
WHERE DEFENDANT IS ALLEGED TO HAVE USED PERSONAL INFORMATION OF OTHER(S) TO
PURCHASE
ALCOHOL/ TOBACCO/A CONSUMER
PRODUCT DENIED TO THOSE UNDER 18]
If
you find that the State has proven that defendant purposely attempted to cause
additional injury or fraud beyond a reasonable doubt, then mark “yes” on your
verdict sheet. However, if you find that
the State failed to prove that defendant purposely attempted to cause
additional injury or fraud beyond a reasonable doubt, then you must mark “no”
on your verdict sheet.
VERDICT SHEET
(N.J.S.A.
2C:21-17a)
1. How
do you find as to Count of the indictment, charging the defendant with
(impersonation)(theft of identity):
_______ NOT
GUILTY ________ GUILTY
(If your answer to Question
Number 1 is guilty, please go on to Question 1a and Question Number 2. If your
answer to Question Number 1 is not guilty, please stop and report your
verdict.)
1a. If you have found the defendant guilty,
how do you find as to the number of individual(s) whose identity defendant did
steal or misuse:
_______ Five
or more
_______ At
least Two but less than Five
_______ One
(Please
go on to Question Number 2)
2. If
you have answered guilty to Question Number 1, how do you find as to the value
of the amount that the defendant obtained the benefit of, or the value of the
amount of the benefit that the defendant
deprived another:
_______ $75,000
or more
_______ at
least $500, but less than $75,000
_______ less
than $500
[1] After
much debate in the Criminal Model Jury Charge Committee, the mental state of
“knowingly” has been included throughout this charge. A majority of Committee members felt that the
mental state of knowingly governs this statute.
N.J.S.A. 2C:2-2c(3).
However, a minority of Committee members felt that the mental state of
purposely governs the statute. N.J.S.A.
2C:2-2c(1). The charge, as written,
implement’s the majority’s view.
[2] The
American Heritage Dictionary of the English Language, Fourth Edition, 2000.
[3] N.J.S.A.
2C:20-1f.
[4] N.J.S.A.
2C:21-17a.
[5] See
Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A.
2C:21-1 (1998) for legislative history behind expansive definition of injury.
[6] N.J.S.A.
2C:20-1m. When necessary to provide as
part of the charge, that same section defines “enterprise” to include “any
individual, sole proprietorship, partnership, corporation, business trust,
association, or other legal entity, and any union or group of individuals associated
in fact, although not a legal entity, and it includes illicit as well as licit
enterprises and governmental as well as other entities.”
[7] See
Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A.
2C:21-1 (1998) for legislative history behind expansive definition of injury.
[8] N.J.S.A.
2C:20-1m. When necessary to provide as
part of the charge, that same section defines “enterprise” to include “any
individual, sole proprietorship, partnership, corporation, business trust,
association, or other legal entity, and any union or group of individuals
associated in fact, although not a legal entity, and it includes illicit as
well as licit enterprises and governmental as well as other entities.”
[9] A
majority of the Committee felt that this use of “purposely” was an appropriate
exception to its decision to use knowingly throughout the charge.
[10] N.J.S.A.
2C:20-1m. When necessary to provide as
part of the charge, that same section defines “enterprise” to include “any
individual, sole proprietorship, partnership, corporation, business trust,
association, or other legal entity, and any union or group of individuals
associated in fact, although not a legal entity, and it includes illicit as
well as licit enterprises and governmental as well as other entities.”
[11] N.J.S.A.
2C:20-1v.
[12] Because all attempts must be purposeful, State v. Rhett,
136 N.J. 476, 485 (1994); State v. Robinson, 127 N.J. 3, 7
(1992), and because other portions of this statute include the requirement of
purpose, the language in N.J.S.A. 2C:5-1a, “acting with the kind of
culpability otherwise required for the commission of the crime,” should not
be charged.
[13] If
impossibility or renunciation is at issue, consult the full Model Jury Charge
on attempt. N.J.S.A. 2C:5-1.
[14] In the
appropriate case, the jury may be advised that purpose may be inferred from the
presence of the factors set forth in N.J.S.A. 2C:21-17a(5) “upon proof
of the basic fact.” N.J.R.E.
303(b). To warrant submission to the
jury, the evidence must be sufficient that “a reasonable juror on the evidence
as a whole, including the existence of the basic fact, could find the presumed
fact beyond a reasonable doubt.” N.J.R.E. 303(b); N.J.S.A.
2C:1-13e. If the jury is instructed as to an inference permitted by N.J.S.A.
2C:21-17a(5), 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. N.J.R.E. 303(b), (c).
[15] If
the indictment only charges a fourth degree crime, then stop here.
[17] N.J.S.A.
2C:21-8.1b; see also N.J.S.A. 2C:20-2b(4).
[18] N.J.S.A.
2C:21-8.1b; see also N.J.S.A. 2C:20-2b(4).
[20] Because all attempts must be purposeful, State v. Rhett,
136 N.J. 476, 485 (1994); State v. Robinson, 127 N.J. 3, 7
(1992), and because other portions of this statute include the requirement of
purpose, the language in N.J.S.A. 2C:5-1a, “acting with the kind of
culpability otherwise required for the commission of the crime,” should not
be charged.
[21] If
impossibility or renunciation is at issue, consult the full Model Jury Charge
on attempt. N.J.S.A. 2C:5-1.
[22] This suggested
verdict sheet is for use when a second-degree offense is alleged under N.J.S.A.
2C:21-17(c)(3). The different grading
provisions of the statute are a product of the number of victims involved
and/or the amount of the benefit obtained by the defendant or the amount the
victim(s) are deprived of. See N.J.S.A.
2C:21-17(c)(1) to (c)(3). Appropriate
changes should be made to this verdict sheet if only the third-degree or
fourth-degree offense is originally charged in the indictment.