N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-5

Revised 3/26/01

BAD CHECKS

(N.J.S.A. 2C:21-5)

Count of the indictment charges defendant with issuing (or pa ssing) bad checks.

That section of our statutes provides in pertinent part that

A person who issues [or passes] a check or similar sight order for

the payment of money, knowing that it will not be honored by the

drawee, commits an offense.

In order to obtain a convict ion, the State must prove each of the following elements

beyond a reasonable doubt

(1) That defendant knowingly issued [or passed] a check [or sight order] for the

payment of money and

(2) That defendant knew at the time he/s he issued [or passed] the check [or sight

order] that it would not be honored by the drawee.

The first element which the State must prove beyond a reasonable doubt is that defendant

knowingly issued [or passed] a ch eck [or sight order] for the pa yment of money. A check is a

draft payable on demand and drawn on a bank [or a cashier’s check or a teller’s check]. An

instrument may be a check even though it is desc ribed on its face by another term, such as

money order.

1 A sight order is an instrument for the immediate collection of money.2

To issue a check [or sight order] means to move the check [or sight order] into

circulation.3 To pass a check [or sight order] means to deliver or circulate or hand the check [or

sight order] from one person to another.4

A drawee is the financial institution at which the issuer had, or made representation that

he/she had, an account at the time the check [or sight order] was issued [or passed].

The second element which the State must prove beyond a reasonable doubt is that the

1 See N.J.S.A. 12A:3-104.

2 United Benefit Fire Insurance Co. v. First Natio nal Bank of Arizona, 405 P.2d 488 (Ariz. l965).

3 N.J.S.A. 12A:3-102.

4 State v. Beaver, 145 S.E.2d 330 (N.C. 1965).

BAD CHECKS

(N.J.S.A. 2C:21-5)

defendant knew at the time he/she issued [or passed it] the check [or sight order] that it would

not be honored by the drawee.5

A person acts knowingly with respect to the nature of his/her conduct or the attendant

circumstances if he/she is aware th at 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 practica lly certain that his/her

conduct will cause such a result. “Knowing,” “with knowledge,” or equivalent terms have the

same meaning. Knowingly is a state of mind and cannot be seen and can only be determined by

inference from conduct, words or acts. Therefore, it is not necessary that witnesses be produced

by the State to testify that a defendant said that he/she knowingly did something. His/Her

knowledge may be gathered from his/her acts an d his/her conduct and from all he/she said and

did at the particular time and place and from all the surrounding circumstances.

[CHARGE IF APPROPRIATE]

You may infer

6 that the issuer knew that the check [or sight order] would not be paid if

(1) The issuer had no account with the drawee at the time the check [or sight

order] was issued

OR

(2) Payment was refused by the drawee for lack of funds, upon presentation

within 30 days after issue, a nd the issuer failed to make good within 10 days after receiving

notice of that refusal or after notice has been sent to the issuer's last known address. Notice of

refusal may be given to the issuer orally or in writing in any reasonable manner by any person.

An inference is a deduction of fact that may be drawn logically and reasonably from

another fact or group of facts established by the evidence. Whether or not an inference should be

5 There is a difference of opinion as to whether the State must prove that the defendant intended to defraud

the victim. In State v. Passafiume , 184 N.J. Super . 447, 449 (App. Div. 1982), the Appellate Division held that

passing a bad check requires a fraudulent intent. However, in State v. Kelm, 289 N.J. Super. 55 (App. Div. 1996),

certif. denied, 146 N.J . 68 (1996), without citing to Passafiume, the Appellate Division determined that the statute

merely required the State to prove that at the time the check was issued or passed, the defendant knew it would not

be honored by the drawee.

6 These inferences do not apply to a post-dated check or sight order.

BAD CHECKS

(N.J.S.A. 2C:21-5)

drawn is for you to decide using your own co mmon sense, knowledge and everyday experience.

Ask yourselves is it probable, logical and reasonable. Howeve r, you are never required or

compelled to draw an inference. You alone decide whether the facts and circumstances shown by

the evidence support an inference and you are always free to draw or not to draw an inference. If

you draw an inference, you should weigh it in co nnection with all the other evidence in the case,

keeping in mind that the burden of proof is upon th e State to prove all the elements of the crime

beyond a reasonable doubt.

If you find that the State has proven both elements beyond a reasonable doubt, then you

must find the defendant guilty. If you find that the State has failed to prove any of the elements

beyond a reasonable doubt, then you must find the defendant not guilty.

If you find that the State has proven each of the elements of this crime beyond a

reasonable doubt, then the State has the burden of proving beyond a reasonable doubt the amount

of the check [or sight order]. You must specify if the amount of the check [or sight order] is:

(a) $75,000 or more;

(b) $1,000 or more but less than $75,000;

(c) $200 or more but less than $1,000; or

(d) less than $200.