PROMOTING GAMBLING – BY CONDUCT THAT
MATERIALLY AIDS GAMBLING ACTIVITY
(N.J.S.A. 2C:37-2a(2)) model jury charge
Count
_____ of the indictment charges defendant with the offense of promoting
gambling. 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 engages in
conduct which materially aids any form of gambling activity.
In order to convict defendant of
this offense, the State must prove beyond a reasonable doubt each of the
following elements:
1. That
defendant engaged in conduct that materially aided unlawful gambling activity;
and
2. 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 engaged in conduct that
materially aided unlawful gambling activity.
As used in the statute, the term “unlawful” means not specifically
authorized by law.[1] The term “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.[2] The form of gambling allegedly involved in
this case is [bookmaking or lottery/policy].
[CHARGE AS APPLICABLE]
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.[3]
[OR]
The term “lottery” means an unlawful
gambling scheme in which (a) the players pay or agree to pay something of value
for chances, represented and differentiated by numbers or by combinations of
numbers or by some other media, one or more of which chances are to be
designated the winning ones; and (b) the winning chances are to be determined
by a drawing or by some other method based upon the element of chance; and (c)
the holders of the winning chances are to receive something of value.[4]
[OR]
The term “policy” or “the numbers
game” means a form of lottery in which the winning chances or plays are not
determined upon the basis of a drawing or other act on the part of persons
conducting or connected with the scheme, but upon the basis of the outcome or
outcomes of a future contingent event or events otherwise unrelated to the
particular scheme.[5]
The term materially aids gambling
activity includes but is not limited to conduct directed toward the creating or
establishment of the particular game, contest, scheme, device or activity
involved; toward the acquisition or maintenance of premises, paraphernalia,
equipment or apparatus therefore; toward the solicitation or inducement of
persons to participate therein; toward the actual conduct of the playing phases
thereof; toward the arrangement of any of its financial or recording phases, or
toward any other phase of its operation.[6] It is not necessary, however, for the State
to prove that defendant received any compensation for his/herconduct.[7]
The second 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.[8] In this case, it is alleged that defendant
knew that he/she
was providing material aid to a gambling activity when he/she
[insert act[s] alleged.]
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 because he/she
was a player rather than a provider of material aid to the gambling activity. 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/lottery/policy] 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.[9]
Defendant must prove this defense by
clear and convincing evidence.[10] 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.[11]
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/lottery/policy]
scheme or enterprise, he/she must be found not guilty of Count ____.
* * * * * *
If you find that the State has failed
to proved 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 promoting
gambling through providing material aid to gambling activity beyond a
reasonable doubt, you must find defendant guilty of that offense.
If you conclude that defendant is
guilty of the offense, you must then determine whether the State has proved the
following beyond a reasonable doubt:
[CHARGE AS APPLICABLE]
In
providing material aid to a bookmaking scheme or operation,
1. That
defendant aided a bookmaking scheme or operation that received or accepted in
any one day more than five bets totaling more than $1,000.[12]
YES
________ NO
________
2. If
the answer to the above question is NO, determine whether the State has proved
beyond a reasonable doubt that defendant aided a bookmaking scheme or operation
that received or accepted three or more bets in any two week period.[13]
YES
________ NO
________
[OR]
In providing
material aid to a [lottery/policy] scheme or operation,
1. That
defendant aided a [lottery/policy] scheme or operation that
received money or written records from a person whose chances or plays are
represented by such money or records.
YES
________ NO
________
[OR]
2. That
defendant aided a [lottery/policy] scheme or operation that received
more than $100 in any one day of money played in that [lottery/policy]
scheme or enterprise.[14]
YES
________ NO
________
[2] See N.J.S.A. 2C:37-1b.
[6] See N.J.S.A.
2C:37-2a(2). As noted therein, the
examples provided in the statute are not to be considered exhaustive of the
ways in which a defendant can materially aid gambling activity.
[11] 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).
[12] Conviction on this form of promoting
gambling through bookmaking is a third degree offense. See N.J.S.A. 2C:37-2b(1).
[13] Conviction on 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.
[14] Promoting gambling to the extent noted
above is a third degree offense.
Otherwise, promoting gambling through materially aiding an unlawful
lottery/policy scheme or enterprise is a disorderly person’s offense. See N.J.S.A. 2C:37-2b(2).
