N.J. Model Criminal Jury Charge, N.J.S.A. 2C:37-2a(1

Revised 3/5/07

PROMOTING GAMBLING – BOOKMAKING

(N.J.S.A. 2C:37-2a(1))

Count of the indictment charges defendant with committing the offense of

promoting gambling through bookmaking. In pertinent part, the indictment alleges that

(Read material part of Count to jury)

The statute that defendant is accused of violating states that: a [def endant] is guilty of

promoting gambling when he knowingly accepts or receives money or other property pursuant to

an agreement or understanding with [another] person whereby [that person] participates or will

participate in the proceeds of gambling activity. In this case, the form of gambling activity that

defendant is accused of promoting is alleged to be bookmaking.

In order to convict defendant of this offense, the State must prove beyond a reasonable

doubt each of the following elements:

1. That defendant accepted or received money or other

property from another person;

2. That the money or other property was accepted or received

pursuant to an agreement or understanding whereby the

other person participates or wi ll participate in the proceeds

of gambling activity, and

3. That defendant acted knowi ngly when he/she engaged in

such conduct.

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

accepted or received money or other property from another person.

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

money or other property was accepted pursuant to an agreement or understanding that the other

person participates or will participate in the pr oceeds of gambling activity. Under the statute,

“gambling” means staking or risking somethi ng of value upon the outcome of a contest of

chance or a future contingent event not under the actor’s control or influence, upon an agreement

or understanding that he/she will receive someth ing of value in the event of a certain outcome.

1

1 See N.J.S.A. 2C:37-1b.

PROMOTING GAMBLING - BOOKMAKING

(N.J.S.A. 2C:37-2a(1)

The type of gambling activity that defendant stands accused of promoting is bookmaking. The

statute defines bookmaking as advancing gamb ling activity by the unlawful accepting of bets

from members of the public [based] upon the outcome of future contingent events as a business.2

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

acted knowingly when he/she engaged in such conduct. A defendant acts knowingly or with

knowledge with respect to the nature of his/ her conduct or the attendant circumstances if

defendant is aware that hi s/her conduct is of that nature, or that such circumstances exist, or

defendant is aware of a high probability of thei r existence. A defendant acts knowingly with

respect to a result of his/her conduct if defendant is aware that it is practically certain that his/her

conduct will cause such a result. 3 In this case, it is allege d that when defendant allegedly

accepted or received ( money/property) from ( person), defendant knew that ( person) would

thereby participate in the proceeds of a bookmaking scheme or enterprise.

You should understand that knowledge is a cond ition of the mind. It cannot be seen. It

can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary

for the State to produce witnesses to testify that defendant stated, for example, that he/she acted

with knowledge when he/she did a pa rticular thing. It is within your power to find that proof of

knowledge has been furnished beyond a reasonable doubt by inference which may arise from the

nature of the acts and the surrounding circumst ances. The place where the acts occurred and all

that was done or said by defendant preceding, connected with, and immediately succeeding the

events in question are among the circumstances to be considered.

* * * * *

[STATUTORY DEFENSE – CHARGE IF APPLICABLE]

Defendant contends that he/she is not guilty of promoting gambling through bookmaking

because he/she was a "player" ra ther than a participant in the bookmaking scheme or enterprise.

Under the statute, it is a defense to the charge of promoting gambling that defendant was a player

rather than a participant in the bookmaking scheme or enterprise. A "player" means a person

who engages in any form of gambling as a contestant or bettor, without receiving or becoming

entitled to receive any profit therefrom othe r than his/her personal gambling winnings and who

2 See N.J.S.A. 2C:37-1g.

3 See N.J.S.A. 2C:2-2b (2).

PROMOTING GAMBLING - BOOKMAKING

(N.J.S.A. 2C:37-2a(1)

does not otherwise render any material assistan ce to the establishm ent, conduct or operation of

the particular gambling activity.4

Defendant must prove this defens e by clear and convincing evidence. 5 T h i s i s t o b e

distinguished from the State's burden of proving defendant's guilt beyond a reasonable doubt.

Clear and convincing evidence is that which produces in your mind a firm belief or conviction as

to the truth of the fact sought to be established and is eviden ce so clear, direct, weighty and

convincing as to enable you to come to a clear conviction, without hesitancy, of the truth of the

matter in issue.6

Regarding the "player" defense asserted in th is case, defendant need not prove that he/she

was a player beyond a reasonable doubt, but rather , the evidence admitted in support of this

defense should produce in your mind a firm belief or conviction that defendant's contention that

he/she participated only as a play er is true. In other words, the law does not require absolute

certainty that defendant participated as a player, but reasonable certainty that it is true. If you

find by clear and convincing evidence that defendant was a player rather th an a participant in a

bookmaking scheme or enterprise, he/she must be found not guilty of Count ____.

* * * * *

If you find that the State has failed to prove beyond a reasonable doubt any of the

elements of the offense, you must find defendant not guilty. But if you find that the State has

proved each of the elements of promoting gambling thr ough bookmaking beyond a reasonable

doubt, you must find defendant guilty of that offense.

* * * * *

If you conclude that defendant has promoted gambling through bookmaking, you must

then determine whether the State has proved the following beyond a reasonable doubt:

1. That defendant promoted bookmaking to the extent that he/she received or accepted in

any one day more than five bets totaling more than $1,000.

7

YES ________ NO ________

4 See N.J.S.A. 2C:37-1c.

5 See N.J.S.A. 2C:37-2c.

6 See In re Boardwalk Regency Casino License Application , 180 N.J. Super . 324, 339 (App. Div. 1981),

mod. o.g. and aff'd 90 N.J. 361 (1982), cert. den. sub nom. Perlman v. Attorney General of New Jersey , 459 U.S.

1081 (1982).

7 Conviction of this form of promoting gambling through bookmaking is a third degree offense. See

N.J.S.A. 2C:37-2b(1).

PROMOTING GAMBLING - BOOKMAKING

(N.J.S.A. 2C:37-2a(1)

2. If the answer to the above question is NO, determ ine whether the State has proved

beyond a reasonable doubt that defendant receive d or accepted three or more bets in any

two week period.8

YES ________ NO ________

8 Conviction of this form of promoting gambling through bookmaking is a fourth degree offense. Otherwise,

promoting gambling is a disorderly person’s offense. See N.J.S.A. 2C:37-2b (2). If a verdict sheet is to be

submitted to the jury, the jury's findings on these gradation of offense issues should be indicated on it.