THEFT OF PROPERTY LOST, MISLAID,OR
DELIVERED BY MISTAKE (N.J.S.A. 2C:20-6)
(HERE
READ PERTINENT COUNT OF INDICTMENT)
That section of our statutes provides in
pertinent part that:
A person who comes into control of
property of another that he knows to have been lost, mislaid, or delivered
under a mistake as to the nature or amount of the property or the identity of
the recipient is guilty of theft if, knowing the identity of the owner and with
purpose to deprive said owner thereof, he converts the property to his own use.
In order to convict defendant of the
charge, the State must prove the following elements beyond a reasonable doubt:
1. That defendant came into control of
property of another.
2. That defendant knew that the property
was [lost] [mislaid] [delivered under a mistake as to [the nature] [the amount]
[the identity of the recipient]].
3. That defendant knew the identity of the
owner.
4. That defendant converted the property
to his/her own use with the purpose to deprive the owner of the
property.
The first element that the State must
prove beyond a reasonable doubt is that defendant came into control of the property
of another. Property means anything of
value, including [select appropriate: tangible and intangible personal
property, trade secrets, contract rights, choses in action and other interests
in or claims to wealth, admission or transportation tickets, captured or
domestic animals, food and drink, electric, gas, steam or other power,
financial instruments, information, data, and computer software, in either
human readable or computer readable form, copies or originals[1]].
Property of another includes property in
which any person other than the defendant has an interest in which the
defendant is not privileged to infringe, regardless of the fact that the
defendant
also has an interest in the property and
regardless of the fact that the other person might be precluded from civil
recovery because the property was used in an unlawful transaction or was
subject to forfeiture as contraband.2 Property in the possession of the actor shall
not be deemed property of another who has only a security interest therein,
even if legal title is in the creditor pursuant to a conditional sales contract
or other security agreement.3 The term property of another is broadly
defined so as to include services and intangibles, anything of value.4
Anything of value is defined as any direct or indirect gain or advantage
to any person.5
Merely
handling a lost article for purposes of examination of the property or merely
learning the whereabouts of lost property does not constitute control. Rather, the State must prove that defendant
exercised some control over the property, such as by taking it or using it.
The
second element that the State must prove beyond a reasonable doubt is that
defendant knew that the property was [lost] [mislaid] [delivered under a
mistake as to the [nature] [amount] [identity of the recipient]]. A person acts knowingly with respect 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 its existence. A person acts knowingly with respect 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. "Knowing," "with
knowledge," or equivalent terms have the same meaning.
If
defendant acted under the honest though mistaken belief that the property was his/her or was owed to him/her or intended for him/her,
then he/she did not know that the property was that of another and is
not guilty of the offense.
The
third element that the State must prove beyond a reasonable doubt is that
defendant knew the identity of the owner.
The
fourth element that the State must prove beyond a reasonable doubt is that
defendant converted the property to his/her own use with the purpose to deprive the owner of that
property. To deprive means to withhold permanently
or for such an extended period of time as to appropriate a substantial portion
of the property’s economic value, or to withhold the property with the purpose
of restoring it only upon payment of a reward or other compensation. Deprivation of property can also result if
the property is disposed of so as to make it unlikely that the owner would ever
recover it.6 A negligent failure to restore the property
is not theft.
A
person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to
cause such a result. A person acts
purposely with respect to attendant circumstances if the individual is aware of
the existence of such circumstances or the individual believes or hopes that
they exist. “With purpose,” “designed,”
“with design” or equivalent terms have the same meaning.
Purposely
or knowingly are states of mind and cannot be seen and can only be determined
by inference from conduct, words or acts.
Therefore, it is not necessary that witnesses be produced by the State
to testify that a defendant said that he/she purposely or knowingly did something. His/Her purpose or knowledge may be gathered from 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 reflected in the testimony [and evidence adduced
at trial].
If the
defendant failed to restore the property to the owner through carelessness or
otherwise without a purpose to deprive the owner of his/her property, he/she would not be guilty of the crime.
If you
find that the State has proven every element of the offense beyond a reasonable
doubt, then you must find defendant guilty.
On the other hand, if you find the State has failed to prove any element
of the offense beyond a reasonable doubt, then you must find defendant not
guilty.
[If
defendant alleges claim of right defense, N.J.S.A. 2C:20-2c(2), charge
the following]
In
addition to his/her general denial of guilt, defendant contends that he/she is not guilty of this offense because he/she was acting pursuant to a claim of right to the property.
Our
law provides that it is a defense to a prosecution for theft of property lost,
mislaid or delivered by mistake that the defendant acted under an honest claim
of right to the property (or service) involved or that he/she had a right to acquire or dispose of the property as he/she
did. An honest claim is one that is
genuinely, though not necessarily correctly, believed by the defendant.
This
defense is not limited to situations in which a defendant believed he/she
owned the property.[7]
Rather, it includes those situations in which the defendant honestly,
although not necessarily correctly, believed that he/she
had either the right or the authorization to receive, take, acquire, or dispose
of the property.
As I
have mentioned to you, since this is a criminal case the burden of proof is on
the State. The defendant is, therefore,
not required to prove that he/she
acted pursuant to a claim of right; rather the burden is on the State to prove
that the defendant did not act pursuant to a claim of right. Thus, if the State
has proven all the elements of theft by property lost, mislaid or delivered by
mistake beyond a reasonable doubt and has also proven beyond a reasonable doubt
that the defendant did not honestly believe that he/she
had a right to the property or was authorized to receive, take, acquire, or
dispose of the property, then you must find the defendant guilty of the offense.
On the
other hand, if the State has failed to prove beyond a reasonable doubt any
element of the offense or if the State has failed to prove beyond a reasonable
doubt that defendant did not honestly believe he/she
had a right to the property or was authorized to receive, take, acquire, or
dispose of the property, then you must find the defendant not guilty.
The State must prove the amount (or
value) of the property beyond a reasonable doubt. If you find the defendant guilty of the
offense, then you must indicate whether you find the amount of money (or value
of the property) involved:
[Choose appropriate sections]
(1) is
$75,000.00 or more;
(2) exceeds $500.00, but is less than $75,000.00;
(3) is at least $200.00, but does not exceed
$500.00; or
(4) is less than $200.00.
[Charge
where appropriate]
Value
means the fair market value of the property at the time and place of the
alleged theft.[9] 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.
The
State has the burden of proving the fair market value of the property involved.
This means that the State must prove beyond a reasonable doubt that the
property is worth what the State claims.
[Charge
where appropriate]
If
you find that the amounts involved were taken in thefts committed pursuant to
one scheme or course of conduct, the amounts may be added together to form a
single total amount, whether stolen from one person or from several persons.[10]
[1] N.J.S.A.
2C:20-1g.
[4] State v. Dixon, 114 N.J. 111 (1989).
[5] N.J.S.A. 2C:20-1n.
[6] N.J.S.A. 2C:20‑1a.
[8] The foregoing charge is for use when
grading is dependent on the amount of money or value of the property involved.
Under N.J.S.A. 2C:20-2b, other factors may also determine grading, e.g.,
if the property is a controlled dangerous substance, or a firearm, etc. In these situations, the appropriate charge
should be given.
