Misapplication of Property
OF GOVERNMENT OR FINANCIAL INSTITUTION
(N.J.S.A. 2C:21-15) model jury charge
Count(s) _____ charge(s) defendant with
Misapplication of Property of a Government or Financial Institution.
[READ
COUNT OF INDICTMENT]
The pertinent
part of the statute on which the indictment is based reads as follows:
A person commits a crime
if he applies or disposes of * * * property belonging to or required to be
withheld for the benefit of the government or of a financial institution in a
manner which he knows is unlawful and involves substantial risk of loss or
detriment to the owner of the property or to a person for whose benefit the
property was entrusted whether or not the actor has derived a pecuniary
benefit.
The State must prove the following five
elements of the crime beyond a reasonable doubt:
1.
Defendant knowingly[1]
applied or disposed of property;
2.
The property at issue was (property belonging to
the government) (property required to be withheld for the benefit of the
government) (property belonging to a financial institution) and/or (property
required to be withheld for the benefit of a financial institution);
3.
Defendant’s application or disposition of the
property was unlawful;
4.
Defendant’s application or disposition involved
substantial risk of loss or detriment to the owner of the property or to a
person for whose benefit the property was entrusted;
5.
Defendant knew that his/her
conduct was unlawful; and
6.
Defendant knew that his/her
conduct involved a substantial risk of loss or detriment to the owner of the
property or the person for whose benefit the property was entrusted.
The first element the State must
prove beyond a reasonable doubt is that defendant knowingly applied or disposed
of property. Here the State asserts that
the property was [describe property].
The
term “property” means anything of value,[2] even
though it may be impossible to identify particular property as belonging to the
victim at the time defendant allegedly misapplied the property because the
victim’s property may have been mixed with or joined with other property.
Defendant must have applied or
disposed of the property knowingly. A
person acts knowingly as 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.
One acts knowingly as 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. One
acts knowingly if one acts with knowledge, if one acts consciously, if one
comprehends his/her acts.
Knowledge
is a condition of the mind. It 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 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.
The
second element the State must prove beyond a reasonable doubt is that the
property at issue was [CHOOSE
APPROPRIATE:] (property of the
government) (property required to be withheld for the benefit of the
government) (property belonging to a financial institution) and/or (property
required to be withheld for the benefit of a financial institution).
[CHARGE AS APPLICABLE]
The
term "government,” includes the United States, any state, county,
municipality, or other political unit, or any department, agency or subdivision
of any of the foregoing, or any corporation or other association carrying out
the functions of government.[3]
"Financial
institution" means a bank, insurance company, credit union, savings and
loan association, investment trust or other organization held out to the public
as a place of deposit of funds or medium of savings or collective investment.[4]
[RESUME CHARGE IN ALL CASES]
The
third element that the State must prove beyond a reasonable doubt is that defendant’s
application or disposition of the property was unlawful.
Fourth,
the State must prove beyond a reasonable doubt that defendant’s application or
disposition of the property involved substantial risk of loss or detriment to
the owner of the property, in this case, [name owner].
Fifth,
the State must prove beyond a reasonable doubt that defendant knew that his/her
conduct was unlawful. I have already
defined knowingly for you.
Sixth,
the State must prove beyond a reasonable doubt that defendant knew that his/her
application or disposition of the property involved a substantial risk of loss
or detriment to the owner of the property or the person for whose benefit the
property was entrusted. A substantial
risk is one that is of such a nature and degree that, considering the nature
and purpose of defendant’s conduct and the circumstances known to
him/her, its disregard involves a gross deviation
from the standard of conduct that a reasonable person would observe in defendant’s
situation. In other words, the State must prove beyond a reasonable doubt that defendant
knew that it was very likely that his/her
treatment of the property would create a risk of loss or detriment to the owner
or person for whose benefit the property was entrusted, that defendant went
ahead anyway, where a reasonable person would not. I have already defined knowing for you. It is not necessary for the State to
prove that defendant himself/herself
derived a benefit during his/her
application or disposition of the property.[5]
If the
State has proven each of the six elements of this crime beyond a reasonable
doubt, then you must find defendant guilty of misapplication of property. On the other hand, if the State has failed to
prove any element beyond a reasonable doubt, you must find him/her not guilty. If you find defendant not guilty, your
consideration of the misapplication of property of government or financial
institutional charge should end here.
However,
if you find defendant guilty beyond a reasonable doubt, you must then proceed
to make two additional factual findings.
Specifically, you must indicate whether defendant derived a benefit and,
if so, the value of the benefit he/she
derived.
First,
you must determine whether the State has proven beyond a reasonable doubt that defendant
derived a benefit as a result of misapplying (the government’s) (the financial
institution’s) property. Benefit means a
gain or advantage, or anything regarded by the beneficiary as a gain or
advantage, including but not limited to a pecuniary benefit or a benefit to any
person or entity in whose welfare he/she is
interested. Please indicate whether the
State has proven that defendant derived a benefit from the alleged
misapplication beyond a reasonable doubt by marking “yes” or “no” on your
verdict sheet.
If you have both determined
that defendant is guilty of misapplication of property, and indicated
that “yes,” that defendant did derive a pecuniary benefit from the
misapplication, then you must go on to determine the amount of that pecuniary
benefit. Specifically, you must indicate
on the verdict sheet if the benefit that defendant derived has a value that:
[choose
appropriate sections]
(1) is $75,000.00 or more;
(2) exceeds $1,000.00, but is less than
$75,000.00;
(3) is $1,000.00 or less.
The
“benefit derived” includes the value of all funds or property misapplied by defendant.[6] That is, the value of the property misapplied
is not simply the value of its use during the period in which defendant
exercised control over the property. For
example, if defendant applies or disposes of $5,000, but later reimburses the
victim, the value of the “benefit derived” is the full $5,000. It is not merely the amount of interest that
a bank might have charged for the use of a $5,000 loan during the period in
which defendant made use of the money. Similarly,
if defendant applies or disposes of $5,000, but reimburses the victim for all
but $200 of the amount, the benefit derived is still $5,000, the entire amount
involved. In calculating the “benefit
derived,” you must include but are not limited to, the amount of any tax
avoided, evaded, unpaid, improperly retained, or improperly disposed of.
[CHARGE
WHEN PROPERTY 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 property at the time and place of the alleged misapplication.[7] 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 property by
[describe testimony or other evidence used to establish value]. The State has the burden of proving the fair
market value of the property involved. This means that you must be satisfied
beyond a reasonable doubt that the property is worth what the State claims.
[1] Matter of Iulo, 115 N.J.
498, 502 (1989); State v. Manthey, 295 N.J. Super. 26, 30-31
(App. Div. 1996); N.J.S.A. 2C:2-2c(3).
[2]
N.J.S.A. 2C:20-1g. The statutory definition
gives examples of various types of property as being included in the
definition, such as trade secrets and choses in action. Reference should be made to the statutory
definition in particular cases to determine whether additional language should
be charged.
[3] N.J.S.A.
2C:20-1d.
[4] N.J.S.A. 2C:20-1c.
[5] If defendant derived no benefit from
his misapplication, he is guilty of a fourth-degree crime under this
section. See Cannel, New
Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:21-15
(2008); American Law Institute, Model
Penal Code and Commentaries, § 224.13, comments 1 and 3 at pp. 358-60, 363
(1980) (distinguishing this crime from embezzlement and theft).
[6] State
v. Modell, 260 N.J. Super. 227, 250-51 (App. Div. 1992), certif.
denied, 133 N.J. 432 (1993); see also State v. Cetnar,
341 N.J. Super. 257, 263-64 (App. Div.), certif. denied, 170 N.J.
89 (2001).