Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

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Kenneth Vercammen & Associates, P.C,

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Thursday, February 3, 2011

2C:20-7. Receiving stolen property

2C:20-7. Receiving stolen property

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

2C:20-7. Receiving stolen property

2C:20-7. Receiving Stolen Property. a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.

b. Presumption of knowledge. The requisite knowledge or belief is presumed in the case of a person who:

(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or

(2) Has received stolen property in another transaction within the year preceding the transaction charged; or

(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it ;or

(4) Is found in possession of two or more defaced access devices.

Amended 1979, c.178, s.35; 1981, c.290, s.19; 1997, c.6, s.3.

AT THE END OF THE TRIAL, THE JUDGE WILL READ THE FOLLOWING INSTRUCTIONS AND LAW TO THE JURY:

RECEIVING STOLEN PROPERTY

(N.J.S.A. 2C:20-7(a))

The defendant is charged with the crime of receiving stolen property. [Describe the property allegedly involved] This charge is based on a statute which reads:

"A person is guilty of theft if he knowingly receives (or brings into this State) movable property of another knowing that it has been stolen, or believing that it has probably been stolen."1

Under this statute the State must prove 3 elements to establish that a defendant is guilty of receiving stolen property. These elements are: 1. That the defendant received (or brought into this State) movable property of another; 2. That the defendant acted knowingly when he/she received (or brought into this State) the movable property of another; 3. That the defendant either knew that the property had been stolen or believed that it had probably been stolen2 at the time he/she received the property (or brought the property into this State).

The first element that the State must prove beyond a reasonable doubt is that the defendant received (or brought into this State) movable property of another. The term "receive" means toacquire possession, control, or title (or to lend on the security) of the property.3

(Charge Model Charge on Possession, N.J.S.A. 2C:2-1c)

The term "movable property" means property, the location of which can be changed (including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location).4 The term "property" means anything of value.5 "Property of another" means property in which the defendant does not have a lawful interest.6 The State need not, however, prove the identity of the owner, the identity of the original thief,7 or the identity of the person from whom the defendant received the property. The second element that the State must prove beyond a reasonable doubt is that the defendant acted knowingly when (he/she) received (or brought into this State) the movable property of another.

A person acts knowingly with respect to the nature of (his/her) conduct or the attendantcircumstances 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 their 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.8

The third element that the State must prove beyond a reasonable doubt is that the defendant either knew that the property had been stolen or believed that it had probably been stolen at the time the defendant received the property (or brought the property into this State). Stolen property means property that has been the subject of any unlawful taking. An unlawful taking occurs when a person takes or exercises unlawful control over the property of another with the purpose, that is, the conscious object, of depriving the other of it permanently or for so extended a period as to appropriate a substantial portion of its economic value.9 I have already defined the term "knowing" to you in discussing the second element and I will not repeat it here. The State is not required to prove that the property, in fact, had been stolen. On the other hand, mere proof that the property was stolen is not sufficient to establish this element. Rather, what the State must prove is that the defendant either knew that the property was stolen or believed that it had probably been stolen. A belief that property has probably been stolen is a belief that it is more likely than not that the property had been stolen. You must realize that knowledge and belief are states of mind which cannot be seen but can only be determined by drawing inferences from one's conduct, words or actions, and from all of the surrounding circumstances. It therefore is not necessary that the State produce witnesses to testify that the defendant said (he/she) knew or believed the property was stolen. (His/her) state of mind is to be determined by you after you examine (his/her) conduct and actions, all that was said or doneat that particular time and place, and all the surrounding circumstances.10

To reiterate, the three elements which the State must prove are: 1. That the defendant received (or brought into this State) movable property of another; 2. That in so doing the defendant acted knowingly; and 3. That the defendant either knew that the property had been stolen or believed that it had probably been stolen when (he/she) received it (or brought it into this State).11

If you conclude the State has proven all three elements of this offense beyond a reasonable doubt, you must find the defendant guilty. On the other hand, if you find that the State has failed to prove any element beyond a reasonable doubt, you must find the defendant not guilty.

(NOTE: Do not charge the following for certain types of property such as an automobile or

firearm. See N.J.S.A. 2C:20-2b(2)(b) and (c).)

Since the value of the property involved determines the degree or severity of the crime, the State must also prove its value beyond a reasonable doubt. If you find the defendant guilty, then youmust indicate whether you find the value of the property involved:

(1) exceeds $500, (2) is at least $200 but does not exceed $500, or (3) is less than $200.

Value is to be determined by the fair market value of the property at the time the defendant is alleged to have received or brought into this State the movable property of another. Fair market value means 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.

1 The language "or brings into this State" is placed in parentheses to suggest that in a case where there is nothing to indicate that this language applies, consideration might be given to deleting the language and thereby eliminating unnecessary verbiage.

2 Where the defendant is also the person who took the property, the third element must be modified. State v. Underwood, 286 N.J. Super. 129 (App. Div. 1995). In such cases, "the State must prove that the defendant intended an unlawful taking," id. at 135; that is, the defendant acted with the purpose to permanently deprive the owner of the property. Id. at 138. Thus, in such cases the third element could be phrased as follows: "The property was stolen by the defendant. In order for you to find that the defendant stole the property, the State must prove that the defendant acted with the purpose to deprive the owner of the property. To deprive means to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value..." (N.J.S.A. 2C:20-1a) A person acts purposely with respect to the nature of his conduct or a result thereof if it is his or her conscious object to engage in conduct of that nature or cause such a result. (N.J.S.A. 2C:2-2b(1)).

3 N.J.S.A. 2C:20-7a. It is suggested that the language "or to lend on the security" only be charged when it applies to the facts of the case.

4 N.J.S.A. 2C:20-1e. It is suggested that the language relating to things on land or documents be charged only when it applies to the facts of the case.

5 N.J.S.A. 2C:20-1g. The statutory definition gives examples of various types of property as being included in the definition, such as trade secrets and choses in action. Reference should be made to the statutory definition in particular cases to determine whether additional language should be charged.

6 N.J.S.A. 2C:20-1h. This is not the complete definition of "property of another," but should be sufficient in the usual case. The definition goes on to address joint ownership issues, contraband, and security interests. When applicable under the facts of a case, this language should be included.

7 Consideration should be given to deleting the language as to the identity of the thief in an Underwood situation. See fn. 2, supra.

8 N.J.S.A. 2C:2-2b(2).

9 N.J.S.A. 2C:20-1a and p; State v. Underwood, supra, 286 N.J. Super. at 135-136.

10 In the appropriate case, the jury may be advised that such knowledge or belief may be inferred from the presence of the factors set forth in N.J.S.A. 2C:20-7b if the evidence provides a factual basis for such an instruction. See State v. Humphrey, 183 N.J. Super. 580 (Law Div. 1982); N.J.R.E. 303; N.J.S.A. 2C:1-13e.

If the jury is instructed as to an inference permitted by N.J.S.A. 2C:20-7b, care should be taken to avoid the use of the term "presumption" and it should be clearly stated that the inference is only permissive in nature. Thus, language such as the following should be charged:

However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish.



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