PROMOTING GAMBLING – LOTTERY/POLICY
(N.J.S.A. 2C:37-2a(1)) model jury charge
Count
of the indictment charges defendant with
promoting gambling through a [lottery/policy] scheme or
enterprise. 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/she
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.
In this case, the gambling activity that defendant is accused of
promoting is alleged to be an unlawful [lottery/policy] scheme or
enterprise.
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 a gambling operation; 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 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 the operation of an unlawful [lottery/policy]
scheme or enterprise.
[CHARGE AS
APPLICABLE]
“Lottery” means an unlawful[2]
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.[3]
[OR]
“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.[4]
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.[5] 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 [lottery/policy] 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 a [lottery/policy]
scheme or enterprise because he/she
was a player rather than a participant in the [lottery/policy]
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 [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.[6]
Defendant must prove this defense by
clear and convincing evidence.[7] 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.[8]
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
[lottery/policy] 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 a [lottery/policy] scheme or enterprise beyond a
reasonable doubt, you must find defendant guilty of that offense.
* *
* * *
If you conclude that defendant has
promoted gambling through a [lottery/policy] scheme or enterprise,
you must then determine whether the State has proved the following beyond a
reasonable doubt in connection with that [lottery/policy] scheme
or operation:
a. defendant
received money or written records from a person whose chances or plays are
represented by such money or records.
YES
________ NO ________
[OR]
b. defendant
received more than $100 in any one day of money played in the [lottery/policy]
scheme or enterprise.[9]
YES
________ NO ________
[2] As used in the statute, the term
"unlawful" means not specifically authorized by law. See N.J.S.A. 2C:37-1k.
[3] See N.J.S.A. 2C:37-1g.
[4] See N.J.S.A. 2C:37-1i.
[8] 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).
[9] Promoting gambling to the extent noted
above is a third degree offense.
Otherwise, promoting gambling through an unlawful lottery/policy scheme
or enterprise is a disorderly person’s offense.
See N.J.S.A. 2C:37-2b(2).
If both of the above questions are submitted to the jury, the verdict
sheet should specify the jury's determination regarding each of them.
