Model Jury charge (N.J.S.A. 2C:21-5)

If someone is Indicted for BAD CHECKS, the Judge will read portions of the following to      the Jury. They are called Request to Charge. If the amount of check is less than $200.00, the case will be heard in the municipal court "The defendant (name) has been charged with the crime of issuing (or passing) a bad check (or similar sight order), in that the defendant allegedly:

(Read Indictment)The pertinent part of the statute on which this indictment is based reads as follows:

"A person who issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee, commits an offense."

As used in the statute, the word "issue" means to put into circulation.1 The word "pass" means to move from one , person to another, or hand from one person to another.2 A "check" is a draft drawn on a bank payable on demand.3 , [Where appropriate, charge the following: A "sight order" is an instrument for an immediate collection of money.4 A , "drawee" is the financial institution at which the issuer had, or made representation (he/she) had, an account at the , time the check or order was issued or passed. , The State must prove the following elements beyond a reasonable doubt:

1) The defendant knowingly issued or passed a check [or, where appropriate, "sight order"] for the , payment of money; and

(2) The defendant knew at the time (he/she) issued or passed it, that it would not be honored by the drawee.5

Knowingly. A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances , if the person is aware that (his/her) conduct is of that nature, or that such circumstances exist, or the person is aware , of a high

probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if the person is aware that it is practically certain that (his/her) conduct will cause such a result.

You may infer that the issuer knew that the check [or, where appropriate, "sight order"] would not be paid, if you , find, either:

(a) The issuer had no account with the drawee at the time the check [or, where appropriate, "sight order"] , was issued; or (b) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and , the issuer failed to make good within 10 days after receiving notice of that refusal or after notice has been , sent to the issuer's last known address. Notice of refusal may be given to the issuer orally or in writing in , any reasonable manner by any person.6

That is, if you find that the issuer had no account with the drawee at the time the check [or, where appropriate, "sight order"] was issued, or payment was refused by the drawee for lack of funds, upon presentation of the check , [or, where appropriate, "order"] within 30 days of issue, and the issuer failed to make good within 10 days after , receiving reasonable written or oral notice of that refusal or after reasonable notice has been sent to the issuer's last , known address, you may then conclude, but are not required to conclude, that the issuer had knowledge the check , [or, where appropriate, "sight order"] would not be paid., If you find that the State has proven all these elements beyond a reasonable doubt, then you may return a verdict of, guilty. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable , doubt, then you must return a verdict of not guilty., If you find that the State has proven each of the elements of the crime beyond a reasonable doubt, then the State has , the burden of proving beyond a reasonable doubt, the amount of the check [or, where appropriate, "sight order"]. , You must specify if the amount of the check [or, where appropriate, "sight order"] is: (a) $75, 000.00 or more;

(b) $1, 000.00 or more but less than $75, 000.00; (c) $200.00 or more but less than $1, 000.00; or (d) Less than $200.00."

1 N.J.S.A. 12A:3-102.

2 Black's Law Dictionary.

3 N.J.S.A. 12A:3-104.

4 United Benefit Fire Insurance Co. v. First National Bank of Arizona, Phoenix, 405 P.2d 488 (l965).

5 These inferences do not apply in the case of a post-dated check or similar sight order.

6 Contrary to pre-Code law, the State is not required to prove that the defendant intended to defraud the victim. The State need only prove that the defendant knew that the check (or similar sight order) would not be honored. See, Commonwealth v. Frank, 468 A.2d 1131 (Pa. Super. 1983) and Commonwealth v. Mutnik, 486 Pa. 428, 406 A.2d 516 (1979) which define the Pennsylvania bad check statute which, as the Code statute, is based upon the Model Penal Code. See, also, State v. Passafiume, 184 N.J. Super. 447, 449 (App. Div. 1982).

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

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© Kenneth Vercammen & Associates, P.C. Last Revised May 14, 2008