| 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.
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 defendant's 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 defendant's 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 defendant's 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.
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