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.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Tuesday, July 23, 2019

CLAIM OF RIGHT THEFT 2C:20-2c(2)) model jury charge

CLAIM OF RIGHT THEFT 2C:20-2c(2)) model jury charge

CLAIM OF RIGHT DEFENSE TO THEFT OFFENSES
(N.J.S.A. 2C:20-2c(2))model jury charge
In addition tohis/hergeneral denial of guilt, the defendant contends thathe/sheis not guilty of (insert appropriate offenses such as theft or receiving stolen property) becausehe/shewas acting pursuant to a claim of right to the property.
Our law provides that it is a defense to prosecution[1]for (insert appropriate charge such as theft or receiving stolen property) that the defendant acted under an honest claim of right to the property (or service) involved or thathe/shehad a right to acquire or dispose of the property ashe/shedid. An honest claim is one that is genuinely, though not necessarily correctly, believed by the defendant.
This defense, you should note, is not limited to situations in which a defendant believedhe/sheowned the property.[2]Rather, it includes those situations in which the defendant honestly, although not necessarily correctly, believed thathe/shehad 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 thathe/sheacted 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 (insert offense) beyond a reasonable doubt and has also proven beyond a reasonable doubt that the defendant did not honestly believe thathe/shehad 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 (insert offense).
On the other hand, if the State has failed to prove beyond a reasonable doubt one or more elements of (insert offense) or if the State has failed to prove beyond a reasonable doubt that the defendant did not honestly believehe/shehad 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.

[1]The statute literally states that a claim of right is an affirmative defense, but when the charge is given the term affirmative should be deleted in order to avoid any suggestion that the defendant bears the burden of proof. However, since the defense is an affirmative one, the charge should only be given when there is some evidence which would support it.N.J.S.A. 2C:1-13b(1).SeeState v. Ippolito, 287N.J. Super. 375 (App. Div. 1996) where the Court found an evidential basis for this charge in the defendants testimony that his co-defendant told him that the co-defendants boss had approved his taking of the property. (Id. at 378).
[2]State v. Ippolito,supra.
https://njlaws.com/right.html?id=5469&a=
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