Embezzlement - New articles, ABA newsletters and Community events

Embezzlement

New Jersey does not have a specific embezzlement law. In New Jersey, the statutes uses the word "theft", rather than embezzlement or larceny. If someone is criminally indicted for theft, at trial the judge will read to the jurors the following jury instructions of the law: The following charge is to be used when the factual circumstances indicate an unlawful taking of personal property, and the value of the property is in dispute. In other instances, reference must be made to 2C:20-2b to determine the degree of theft. See Charge #2.291 on GRADATION OF THEFT OFFENSES. (Note that 2C:20-2b(2) makes some offenses of the third degree regardless of the value of the property). The statute, on which the indictment is based is, 2C:20-3a, which reads in its pertinent part as follows: A person is guilty of theft if he unlawfully takes, or exercises control over movable property of another with purpose to deprive him thereof. The jury cannot find the defendant guilty unless the jury determines that the State has proven the following two elements beyond a reasonable doubt: First, the State must prove that the defendant unlawfully took (here describe property listed in indictment). In order to prove an unlawful taking, the State need not prove that the property was carried out of the place in which it was kept, but only that it was moved or taken from its original location. If the defendant is found with the stolen property shortly after it was taken, charge the jury that it may draw an inference that the defendant took the property. Second, the State must prove that at the time the defendant took this property (his/her) purpose was to deprive the owner of the (here describe property) With regard to the requirement of proof of a purpose to deprive another of (his/her) property, you are instructed that 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. In other words, in order for the jury to find that the defendant acted purposely, the State must prove beyond a reasonable doubt that at the time the defendant took the property it was (his/her) conscious object to deprive (the owner) of (describe property). (If appropriate, insert relevant portions of the following definition.) "Deprive" means (1) 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...or, (2) to dispose (or cause disposal) of the property so as to make it unlikely that the owner will recover it). Thus, if the jury finds, after careful consideration of all of the evidence that the State has proven beyond a reasonable doubt each of the elements as I have explained them, then your verdict should be guilty. However, if the State has not proven each of the elements described above to the jury's satisfaction beyond a reasonable doubt, then the jury's verdict should be not guilty. The following are the theft statutes in New Jersey: 2C:20-1. Definitions. In chapters 20 and 21, unless a different meaning plainly is required: a. "Deprive" means: (1) 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, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it. b. "Fiduciary" means an executor, general administrator of an intestate, administrator with the will annexed, substituted administrator, guardian, substituted guardian, trustee under any trust, express, implied, resulting or constructive, substituted trustee, executor, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent or officer of a corporation, public or private, temporary administrator, administrator, administrator pendente lite, administrator ad prosequendum, administrator ad litem or other person acting in a similar capacity. c. "Financial institution" means a bank, insurance company, credit union, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment. d. "Government" means the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government. e. "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. "Immovable property" is all other property. f. "Obtain" means: (1) in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof. g. "Property" means anything of value, including real estate, 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. h. "Property of another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor 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. Property in 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. i. "Trade secret" means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula or improvement which is secret and of value. A trade secret shall be presumed to be secret when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes. j. "Dealer in property" means a person who buys and sells property as a business. k. "Traffic" means: (1)To sell, transfer, distribute, dispense or otherwise dispose of property to another person; or (2)To buy, receive, possess, or obtain control of or use property, with intent to sell, transfer, distribute, dispense or otherwise dispose of such property to another person. l. "Broken succession of title" means lack of regular documents of purchase and transfer by any seller except the manufacturer of the subject property, or possession of documents of purchase and transfer by any buyer without corresponding documents of sale and transfer in possession of seller, or possession of documents of sale and transfer by seller without corresponding documents of purchase and transfer in possession of any buyer. m. "Person" includes any individual or entity or enterprise, as defined herein, holding or capable of holding a legal or beneficial interest in property. n. "Anything of value" means any direct or indirect gain or advantage to any person. o. "Interest in property which has been stolen" means title or right of possession to such property. p. "Stolen property" means property that has been the subject of any unlawful taking. q. "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities. r. "Attorney General" includes the Attorney General of New Jersey, his assistants and deputies. The term shall also include a county prosecutor or his designated assistant prosecutor, if a county prosecutor is expressly authorized in writing by the Attorney General to carry out the powers conferred on the Attorney General by this chapter. s. "Access device" means property consisting of any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number, personal identification number, or any other data intended to control or limit access to telecommunications or other computer networks in either human readable or computer readable form, either copy or original, that can be used to obtain telephone service. t. "Defaced access device" means any access device, in either human readable or computer readable form, either copy or original, which has been removed, erased, defaced, altered, destroyed, covered or otherwise changed in any manner from its original configuration. u. "Domestic companion animal" means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes. v. "Personal identifying information" means any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual and includes, but is not limited to, the name, address, telephone number, date of birth, social security number, official State issued identification number, employer or taxpayer number, place of employment, employee identification number, demand deposit account number, savings account number, credit card number, mother's maiden name, unique biometric data, such as fingerprint, voice print, retina or iris image or other unique physical representation, or unique electronic identification number, address or routing code of the individual. 2C:20-1.1. Offense involving access device; presumption of unlawful purpose 6. In any prosecution for an offense enumerated in chapter 20 of Title 2C of the New Jersey Statutes involving a defaced access device, any removal, erasure, defacement, alteration, destruction, covering or other change in such access device from its original configuration performed by any person other than an authorized manufacturer of, or service provider to access devices shall be presumed to be for an unlawful purpose. 2C:20-2. Consolidation of Theft Offenses; Grading; Provisions Applicable to Theft Generally. a. Consolidation of Theft and Computer Criminal Activity Offenses. Conduct denominated theft or computer criminal activity in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of theft or computer criminal activity may be supported by evidence that it was committed in any manner that would be theft or computer criminal activity under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise. b. Grading of theft offenses. (1)Theft constitutes a crime of the second degree if: (a)The amount involved is $75,000.00 or more; (b)The property is taken by extortion; (c)The property stolen is a controlled dangerous substance or controlled substance analog, as defined in N.J.S. 2C:35-2 and the quantity is in excess of one kilogram; (d)The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is $75,000 or more; or (e)The property stolen is human remains or any part thereof. (2)Theft constitutes a crime of the third degree if: (a)The amount involved exceeds $500.00, but is less than $75,000.00; (b)The property stolen is a firearm, motor vehicle, vessel, boat, horse, domestic companion animal or airplane; (c)The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S. 2C:35-2 and the amount involved is less than $75,000.00 or is undetermined and the quantity is one kilogram or less; (d)It is from the person of the victim; (e)It is in breach of an obligation by a person in his capacity as a fiduciary; (f)It is by threat not amounting to extortion; (g)It is of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant; (h)The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is less than $75,000; (i)The property stolen is any real or personal property related to, necessary for, or derived from research, regardless of value, including, but not limited to, any sample, specimens and components thereof, research subject, including any warm-blooded or cold-blooded animals being used for research or intended for use in research, supplies, records, data or test results, prototypes or equipment, as well as any proprietary information or other type of information related to research; (j)The property stolen is a New Jersey Prescription Blank as referred to in R.S. 45:14-14; or (k)The property stolen consists of an access device or a defaced access device. (3)Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00. If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense. (4)The amount involved in a theft or computer criminal activity shall be determined by the trier of fact. The amount shall include, but shall not be limited to, the amount of any State tax avoided, evaded or otherwise unpaid, improperly retained or disposed of. Amounts involved in thefts or computer criminal activities committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense. c. Claim of right. It is an affirmative defense to prosecution for theft that the actor: (1)Was unaware that the property or service was that of another; (2)Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did; or (3)Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented. d. Theft from spouse. It is no defense that theft or computer criminal activity was from or committed against the actor's spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft or computer criminal activity only if it occurs after the parties have ceased living together. 2C:20-2.1. Additional penalties for theft or unlawful taking of motor vehicle 1. a. In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle shall be subject: (1) For the first offense, to a penalty of $500.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of one year. (2) For a second offense, to a penalty of $750.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of two years. (3) For a third or subsequent offense, to a penalty of $1,000.00, and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for 10 years. b. The suspension or postponement of the person's license to operate a motor vehicle pursuant to subsection a. of this section shall commence on the day the sentence is imposed. In the case of any person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of one year for a first offense, two years for a second offense or 10 years for a third offense calculated from the day after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement. Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include, the complete name, address, date of birth, eye color, and sex of the person, and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S. 39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S. 39:3-40. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving privileges in this State. c. All penalties provided for in this section shall be collected as provided for the collection of fines and restitutions in section 3 of P.L. 1979, c.396 (C. 2C: 46-4), and shall be distributed in accordance with the provisions of N.J.S. 2C:64-6 as if the collected monies were the proceeds of property forfeited pursuant to the provisions of chapter 64. However, the distributed monies are to be used for law enforcement activities related to auto theft. 2C:20-2.2. Additional fine for auto theft Notwithstanding the provisions of N.J.S. 2C:43-3, if the fair market value of the automobile and its contents at the time it was stolen exceeds $7,500.00 and the automobile is not recovered, the court may sentence the defendant to pay a fine for that higher amount. 2C:20-3. Theft by unlawful taking or disposition a. Movable property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof. b. Immovable property. A person is guilty of theft if he unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto.