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 ones 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. It should also be noted that aside from the inference authorized by the statute, there is a question as to whether recent unexplained possession of stolen property permits an inference of guilty knowledge. The former receiving stolen property statute (N.J.S.A. 2A:139-1) provided for such an inference (see State v. DiRienzo, 53 N.J. 360 (1969) and one trial level court has held that a common law inference still may be drawn even in the absence of a specific statutory authorization. State in the Interest of L.L.A., 178 N.J. Super. 555 (J. & D.R. Ct. 1980); cf. State v. Burch, 179 N.J. Super. 336 (App. Div. 1981) certif. den. 89 N.J. 396 (1981) (applying inference in theft by unlawful taking prosecution under N.J.S.A. 2C:20-3.); see also State v. Ippolito, 287 N.J. Super. 375, 383 (App. Div. 1996) (holding in theft by unlawful taking case that {t}he inference charge is given when there is a dispute concerning the identity of the person who physically took the property, but is inappropriate where . . . defendant admits that he took the property and possessed it from the time it was taken until it was recovered but he has explained his possession as a claim of right.) In contrast, one commentator has suggested that the common law inference does not appear to have survived the enactment of the Code, at least with respect to receiving, as opposed to unlawful taking, prosecutions. Cannel, Title 2C: CRIMINAL CODE ANNOTATED, COMMENT TO N.J.S.A. 2C:20-7 at p. 437. If the inference of guilty knowledge from recent, unexplained possession of stolen property is to be charged, care should be taken not to charge it in such a manner or under such circumstances as to violate a non-testifying defendants right to remain silent. This issue is discussed in State v. Burch, supra, 179 N.J. Super. 336. There, the court stated that when it isclear from the record that defendant is the only source to supply (an) explanation, the instruction is prejudicial and should not be given. Id. However, the court also noted that in a stolen property case some evidence, other than the defendants testimony, such as a sales slip or sales clerk, is usually available to the defense to account for innocent possession. Id. at 343. Thus, the court concluded that the instruction concerning the inference was proper even though there (was) an absence of a specific showing in the record as to the availability of an evidence source other than the defendants own testimony . . . Id. at 343-44; see also State v. DiRienzo, 53 N.J. 360 (1969) and State v. Dent, 51 N.J. 428 (1968) which are discussed in Burch. 11 If the evidence requires, any affirmative defenses should be charged at this point. See e.g. N.J.S.A. 2C:20-2c. With respect to a claim of right defense pursuant to N.J.S.A. 2C:20-2c(2), see State v. Ippolito, supra, 287 N.J. Super. 375 and separate model jury charge. NOTE ALSO that N.J.S.A. 2C:20-7a specifically says that it is an affirmative defense that the property was received with the purpose to restore it to the owner. This defense must be charged when there is a basis for it in the evidence. State v. Underwood, supra, 286 N.J. Super. at 138. 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:
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 drivers 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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Monday, October 17, 2011
Receiving Stolen Property
