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

Approved 3/5/07

PROMOTING GAMBLING – LOTTERY/POLICY

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

Count of the indictment charges defendant with promoting gambling through a

[lottery/policy] scheme or enterprise. 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 [defendant] is guilty of

promoting gambling when he/she 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. In th is case, the gambling activ ity that defendant is

accused of promoting is alleged to be an unlawful [lottery/policy] scheme or enterprise.

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

doubt each of the following elements:

1. That defendant accepted or rece ived money or other property from

another person;

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

an agreement or understanding where by the other person participates or

will participate in the proceeds of a gambling operation; and

3. That defendant acted knowingly 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 proceeds of gambling activity. Under the statute, “gambling”

means staking or risking something 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 ag reement or understanding

that he will receive something of va lue in the event of a certain outcome.

1 The type of gambling

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

PROMOTING GAMBLING – LOTTERY/POLICY

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

activity that defendant stands accused of prom oting is the operation of an unlawful [lottery/policy]

scheme or enterprise.

[CHARGE AS APPLICABLE]

“Lottery” means an unlawful 2 gambling scheme in which (a) the players pay or agree to

pay something of value for chances, represented and differentiated by numbers or by combinations

of numbers or by some other me dia, one or more of which ch ances are to be designated the

winning ones; and (b) the winning chances are to be determined by a drawing or by some other

method based upon the element of chance; and (c) the holders of the winning chances are to

receive something of value.

3

[OR]

“Policy” or “the numbers game” means a form of lottery in which the winning chances or

plays are not determined upon the basis of a drawing or other act on the part of persons conducting

or connected with the scheme, but upon the basi s of the outcome or outcomes of a future

contingent event or events otherwise unrelated to the particular scheme.4

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 na ture of his/her conduct or th e attendant circumstances if

defendant is aware that his/her co nduct is of that nature, or that such circumstances exist, or

defendant is aware of a high probability of th eir existence. A defendant acts knowingly with

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

conduct will cause such a result.

5 In this case, it is alleged that when defendant allegedly accepted

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

participate in the proceeds of a [lottery/policy] 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

2 As used in the statute, the term "unlawful" means not specifically authorized by law. See N.J.S.A. 2C:37-1k.

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

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

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

PROMOTING GAMBLING – LOTTERY/POLICY

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

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

with knowledge when he/she did a particular 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 circumstan ces. 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 a

[lottery/policy] scheme or enterprise because he/she was a player rather than a participant in the

[lottery/policy] scheme or enterprise. Under the statute, it is a defense to th e charge of promoting

gambling that defendant was a player rather than a participant in the [lottery/policy] scheme or

enterprise.

A "player" means a person who engages in any form of gambling as a contestant or bettor,

without receiving or becoming enti tled to receive any profit ther efrom other than his/her personal

gambling winnings and who does not otherwise render any material assistance to the

establishment, conduct or operation of the particular gambling activity.

6

Defendant must prove this defens e by clear and convincing evidence. 7 This is to be

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

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

to the truth of the fact sought to be established and is evidence 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.

8

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

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

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

8 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).

PROMOTING GAMBLING – LOTTERY/POLICY

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

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, th e 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 th at defendant was a player rath er than a participant in a

[lottery/policy] 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 th e State has proved each

of the elements of promoting gambling through a [lottery/policy] scheme or enterprise beyond a

reasonable doubt, you must find defendant guilty of that offense.

* * * * *

If you conclude that defendant has promoted gambling through a [lottery/policy] scheme

or enterprise, you must then determine whet her the State has proved the following beyond a

reasonable doubt in connection with that [lottery/policy] scheme or operation:

a. defendant received money or written records from a person

whose chances or plays are represented by such money or

records.

YES ________ NO ________

[OR]

b. defendant received more than $100 in any one day of money

played in the [lottery

/policy] scheme or enterprise.9

YES ________ NO ________

9 Promoting gambling to the extent noted above is a third degree offense. Otherwise, promoting gambling

through an unlawful lottery/policy scheme or enterprise is a disorderly person’s offense. See N.J.S.A. 2C:37-2b(2). If

both of the above questions are submitted to the jury, the verdict sheet should specify the jury's determination

regarding each of them.