POSSESSION OF GAMBLING RECORDS - BOOKMAKING
(N.J.S.A. 2C:37-3a(1)) model jury charge
Count _____ of the indictment
charges defendant with committing the offense of possession of gambling records
used in bookmaking. In pertinent part,
the indictment alleges that:
(Read material part of Count ____ to jury)
The statute that defendant is
accused of violating states that: A
[defendant] is guilty of possession of gambling records when, with knowledge of
the contents thereof, he possesses any
writing, paper, instrument or article of a kind commonly used in the operation
or promotion of a bookmaking scheme or enterprise.[1]
In order to convict defendant of
this offense, you must be satisfied that the State has proved beyond a
reasonable doubt each of the following elements:
2. That [S- /the writing, paper, etc.] is of a kind
commonly used in a bookmaking scheme or enterprise; and
3. That defendant possessed
[S- /the writing, paper, etc.]
with knowledge of its contents.
The first element that the State
must prove beyond a reasonable doubt is that defendant knowingly possessed [S-
/a particular writing, paper, instrument or article.] A defendant acts "knowingly" with respect
to the nature of his/her
conduct or the attendant circumstances if defendant is aware that his/her
conduct is of that nature, or that such circumstances exist, or defendant is
aware of a high probability of their existence.
A defendant acts knowingly with respect to his/her
conduct if defendant is aware that it is practically certain that his/her
conduct will cause such a result. The
term "with knowledge" has the same meaning.[3]
You should understand that knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by
inferences from conduct, words or acts.
Therefore, it is not necessary for the State to produce witnesses to
testify that defendant stated, for example, that he/she
acted with knowledge when he/she
did a particular thing. It is within
your power to find that proof of knowledge has been furnished beyond a
reasonable doubt by inference which may arise from the nature of the acts and
the surrounding circumstances. The place
where the acts occurred and all that was done or said by defendant preceding,
connected with, and immediately succeeding the events in question are among the
circumstances to be considered.
As used in the statute, the term
possession means: [Utilize model jury charge for actual/constructive/joint possession, as
applicable]
The second element that the State
must prove beyond a reasonable doubt is that [S-___/the writing,
paper, etc.] is of a kind commonly used in a bookmaking scheme or
enterprise. The term
"bookmaking" means advancing gambling activity by unlawfully
accepting bets from members of the public [based] upon the outcome of future
contingent events as a business.[4]
The third element that the State
must prove beyond a reasonable doubt is that defendant possessed [S- /the writing, paper, etc.] with
knowledge of its contents. Regarding
this third element, you must bear in mind that the requirement that defendant
have knowledge of the exhibit’s/writing’s content is a requirement separate and
distinct from that of the first element which requires that defendant’s
possession of the writing itself be knowing.
In other words, conviction for possession of bookmaking records requires
that (1) defendant possess a writing knowingly and (2) that defendant know that
the writing that he/she
possesses is of a kind commonly used in a bookmaking operation or scheme. In order to sustain its burden of proof,
however, it is not necessary for the State to prove the existence of an actual
particular bookmaking scheme or enterprise.
* * * * *
[STATUTORY DEFENSE – CHARGE AS APPLICABLE]
Defendant contends that he/she
is not guilty of possession of bookmaking records because [S- / the writing/paper, etc.] allegedly
possessed by defendant constituted, reflected or represented bets of defendant himself/herself in a number not exceeding ten.
Under the statute, this is a defense to the charge of possession of
bookmaking records.[5]
Defendant must prove this defense by
clear and convincing evidence. This is
to be distinguished from the State's burden of proving defendant's guilt beyond
a reasonable doubt. Clear and convincing
evidence is that which produces in your mind a firm belief or conviction as to
the truth of the fact sought to be established and is evidence so clear,
direct, weighty and convincing as to enable you to come to a clear conviction,
without hesitancy, of the truth of the matter in issue.[6] Defendant need not prove that [S-____/the
writing/paper, etc.] represent his/her
personal bets in a number not exceeding ten beyond a reasonable doubt, but
rather, the evidence admitted in support of this defense should produce in your
mind a firm belief that defendant's contention is true. In other words, the law does not require
absolute certainty, but reasonable certainty that it is true. If you find by clear and convincing evidence
that [S- / the writing/paper,
etc.] represent defendant's personal bets in a number not exceeding ten, he/she
must be found not guilty of Count ____.
* * * * *
[STATUTORY DEFENSE – CHARGE AS APPLICABLE]
Defendant contends that he/she
is not guilty because defendant did not use or intend to use [S- /the writing, paper, instrument or
article allegedly possessed by defendant] in the operation or promotion of
a bookmaking scheme or enterprise. I
have used the phrase "intend to use."
Intending to do something means the purpose to do something, a resolution
to do a particular act or accomplish a certain thing. Intent is a condition of the mind which
cannot be seen and can only be determined by inferences from conduct, words or
acts. If the defendant neither used nor
intended to use [S- /the writing,
paper, instrument or article allegedly possessed by him/her] in the
operation or promotion of a bookmaking scheme or enterprise, this is a defense
to the charge of possession of bookmaking records.[7] The defendant must prove this defense by
clear and convincing evidence. [Continue with instruction regarding clear
and convincing as set forth above]
* * * * *
If you find that the State has
failed to prove beyond a reasonable doubt any of the elements of the offense,
you must find defendant not guilty. But
if you determine that the State has proved each of the elements of possession
of bookmaking records beyond a reasonable doubt, you must find defendant guilty
of that offense.
* * * * *
If you conclude that defendant is
guilty of possession of bookmaking records, you must then determine whether the
State has proved beyond a reasonable doubt that the bookmaking records
possessed by defendant constitute, reflect or represent more than five bets
totaling more than $1,000.[8]
YES
_____ NO _____
[1] N.J.S.A. 2C:37-3a(1). Types of paper once common to bookmaking
operations like flash paper and water soluble paper are specifically mentioned
in the statute's text and should be incorporated into the definition of the
offense where factually applicable.
[2] If the writing, paper, instrument or
article in question has been admitted in evidence, refer to same by its exhibit
number, e.g., S-24.
[6] See
In re Boardwalk Regency Casino License Application, 180 N.J. Super.
324, 339 (App. Div. 1981), mod. o.g. and aff'd 90 N.J. 361 (1982), cert.
den. sub nom. Perlman v. Attorney General of New Jersey,
459 U.S. 1081 (1982).
[8] Possession
of bookmaking records that constitute, reflect or represent more than five bets
totaling more than $1,000 is a third degree offense. Otherwise, possession of bookmaking records
is a disorderly person’s offense. See
N.J.S.A. 2C:37-3c(1).