PROMOTING GAMBLING – BOOKMAKING
(N.J.S.A. 2C:37-2a(1)) model jury charge
Count
of the indictment charges defendant with
committing the offense of promoting gambling through 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 promoting gambling when he knowingly accepts or
receives money or other property pursuant to an agreement or understanding with
[another] person whereby [that person] participates or will participate in the
proceeds of gambling activity. In this
case, the form of gambling activity that defendant is accused of promoting is
alleged to be bookmaking.
In order to convict defendant of
this offense, the State must prove beyond a reasonable doubt each of the
following elements:
1. That
defendant accepted or received money or other property from another person;
2. That
the money or other property was accepted or received pursuant to an agreement
or understanding whereby the other person participates or will participate in
the proceeds of gambling activity, and
3. That
defendant acted knowingly when he/she
engaged in such conduct.
The first element that the State
must prove beyond a reasonable doubt is that defendant accepted or received
money or other property from another person.
The second element that the State
must prove beyond a reasonable doubt is that the money or other property was
accepted pursuant to an agreement or understanding that the other person
participates or will participate in the proceeds of gambling activity. Under the statute, “gambling” means staking
or risking something of value upon the outcome of a contest of chance or a
future contingent event not under the actor’s control or influence, upon an
agreement or understanding that he/she
will receive something of value in the event of a certain outcome.[1] The type of gambling activity that defendant
stands accused of promoting is bookmaking.
The statute defines bookmaking as advancing gambling activity by the
unlawful accepting of bets from members of the public [based] upon the outcome
of future contingent events as a business.[2]
The third element that the State
must prove beyond a reasonable doubt is that defendant acted knowingly when he/she
engaged in such conduct. A defendant
acts knowingly or with knowledge 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 a
result of his/her conduct if defendant is aware that it is practically certain
that his/her conduct will cause such a result.[3] In this case, it is alleged that when
defendant allegedly accepted or received (money/property) from (person),
defendant knew that (person) would thereby participate in the proceeds
of a bookmaking scheme or enterprise.
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.
*
* * *
*
[STATUTORY DEFENSE – CHARGE IF APPLICABLE]
Defendant
contends that he/she
is not guilty of promoting gambling through bookmaking because he/she
was a "player" rather than a participant in the bookmaking scheme or enterprise. Under the statute, it is a defense to the
charge of promoting gambling that defendant was a player rather than a
participant in the bookmaking scheme or enterprise. A "player" means a person who
engages in any form of gambling as a contestant or bettor, without receiving or
becoming entitled to receive any profit therefrom other than his/her personal gambling winnings and who does not otherwise render
any material assistance to the establishment, conduct or operation of the
particular gambling activity.[4]
Defendant must prove this defense by
clear and convincing evidence.[5] 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]
Regarding the "player"
defense asserted in this case, defendant need not prove that he/she
was a player beyond a reasonable doubt, but rather, the evidence admitted in
support of this defense should produce in your mind a firm belief or conviction
that defendant's contention that he/she
participated only as a player is true.
In other words, the law does not require absolute certainty that
defendant participated as a player, but reasonable certainty that it is
true. If you find by clear and
convincing evidence that defendant was a player rather than a participant in a
bookmaking scheme or enterprise, he/she
must be found not guilty of Count ____.
* *
* * *
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 find that the State has proved each of the elements of promoting
gambling through bookmaking beyond a reasonable doubt, you must find defendant
guilty of that offense.
* *
* * *
If you conclude that defendant has
promoted gambling through bookmaking, you must then determine whether the State
has proved the following beyond a reasonable doubt:
1. That
defendant promoted bookmaking to the extent that he/she
received or accepted in any one day more than five bets totaling more than
$1,000.[7]
YES
________ NO
________
2. If
the answer to the above question is NO, determine whether the State has proved
beyond a reasonable doubt that defendant received or accepted three or more
bets in any two week period.[8]
YES
________ NO
________
[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).
[7] Conviction of this form of promoting
gambling through bookmaking is a third degree offense. See N.J.S.A. 2C:37-2b(1).
[8] Conviction of this form of promoting
gambling through bookmaking is a fourth degree offense. Otherwise, promoting gambling is a disorderly
person’s offense. See N.J.S.A.
2C:37-2b (2). If a verdict sheet is to
be submitted to the jury, the jury's findings on these gradation of offense
issues should be indicated on it.
