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

Revised 3/5/07

PROMOTING GAMBLING – BY CONDUCT THAT

MATERIALLY AIDS GAMBLING ACTIVITY

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

Count _____ of the indictment charges defendant with the offense of promoting

gambling. In pertinent part, the indictment alleges that:

(Read material part of Count ____ to jury)

The statute that defendant is accused of violat ing states that: A [defendant] is guilty of

promoting gambling when he knowingly engages in conduct which materially aids any form

of gambling activity.

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

doubt each of the following elements:

1. That defendant engaged in conduct that materially aided

unlawful gambling activity; and

2. 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 engaged in conduct that materially aided unlawful gambling activity. As used in

the statute, the term “unlawful” m eans not specifically authorized by law.

1 The term

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

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

agreement or understanding that he/she will receive something of value in the event of a

certain outcome.

2 The form of gambling allege dly involved in this case is [bookmaking or

lottery/policy].

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

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

PROMOTING GAMBLING – BY CONDUCT THAT

MATERIALLY AIDS GAMBLING ACTIVITY

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

[CHARGE AS APPLICABLE]

The term "bookmaking" means advanci ng gambling activity by unlawfully accepting

bets from members of the public [based] upon the outcome of future contingent events as a

business.3

[OR]

The term “lottery” means an unlawful ga mbling scheme in which (a) the players pay

or agree to pay something of value for chances , represented and differe ntiated by numbers or

by combinations of numbers or by some other media, one or more of which chances 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 elemen t of chance; and (c) the holders of the

winning chances are to receive something of value.4

[OR]

The term “policy” or “the numbers gam e” 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 basis of the outcome

or outcomes of a future contingent event or events otherwise unrelated to the particular

scheme.5

The term materially aids gambling activ ity includes but is not limited to conduct

directed toward the creating or establishment of the particular game, contest, scheme, device

or activity involved; toward the acquisition or maintenance of premises, paraphernalia,

equipment or apparatus therefor e; toward the solicitation or inducement of persons to

participate therein; toward the actual conduct of the playing phases thereof; toward the

arrangement of any of its financial or record ing phases, or toward any other phase of its

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

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

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

PROMOTING GAMBLING – BY CONDUCT THAT

MATERIALLY AIDS GAMBLING ACTIVITY

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

operation.6 It is not necessary, however, for the St ate to prove that defendant received any

compensation for his/herconduct.7

The second element that the State mu st 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 hi s/her conduct or the attendant

circumstances if defendant is aware that his/ her conduct is of that nature, or that such

circumstances exist, or defendant is aware of a high probability of their 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.8 In this case, it is alleged

that defendant knew that he/s he was providing material ai d to a gambling activity when

he/she [insert act[s] alleged.]

You should understand that knowledge is a c ondition of the mind. It cannot be seen.

It can only be determined by inferences from c onduct, words or acts. Therefore, it is not

necessary for the State to produce witnesses to te stify 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 furn ished beyond a reasonable doubt by inference

which may arise from the nature of the acts and the surrounding circumstances. 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 because he/she

was a player rather than a provider of material aid to the gambling activity. Under the statute,

6 See N.J.S.A. 2C:37-2a(2). As noted therein, the examples provided in the statute are not to be

considered exhaustive of the ways in which a defendant can materially aid gambling activity.

7 See 33A New Jersey Practice (Miller), § 572 at 7.

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

PROMOTING GAMBLING – BY CONDUCT THAT

MATERIALLY AIDS GAMBLING ACTIVITY

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

it is a defense to the charge of promoting gamb ling that defendant was a player rather than a

participant in the [bookmaking/lottery/policy] scheme or enterprise.

A "player" means a person w ho engages in any form of ga mbling as a contestant or

bettor, without receiving or be coming entitled to receive any profit therefrom 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.9

Defendant must prove this defense by clear and convincing evidence. 10 This is to be

distinguished from the State's burden of provi ng 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 evidence so clear, direct, weighty and

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

the matter in issue.11

Regarding the "player" defense asserted in this 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 fi rm belief or conviction that defendant's

contention that he/she participated only as a pl ayer is true. In othe r words, the law does not

require absolute certainty that defendant particip ated as a player, but re asonable certainty that

it is true. If you find by clear and convincing evidence that defendant was a player rather than

a participant in a [bookmaking/lottery/policy] scheme or enterprise, he/she must be found not

guilty of Count ____.

* * * * * *

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

elements of the offense, you must find defendan t not guilty. But if you determine that the

State has proved each of the elements of pr omoting gambling through providing material aid

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

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

11 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 – BY CONDUCT THAT

MATERIALLY AIDS GAMBLING ACTIVITY

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

to gambling activity beyond a reasonable doubt , you must find defendant guilty of that

offense.

If you conclude that defendant is guilty of the offense, you must then determine

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

[CHARGE AS APPLICABLE]

In providing material aid to a bookmaking scheme or operation,

1. That defendant aided a bookmaking scheme or operation that

received or accepted in any one da y more than five bets totaling

more than $1,000.

12

YES ________ NO ________

2. If the answer to the above question is NO, determine whether the

State has proved beyond a reasonab le doubt that defendant aided a

bookmaking scheme or operation that received or accepted three or

more bets in any two week period.13

YES ________ NO ________

[OR]

In providing material aid to a [lottery/policy] scheme or operation,

1. That defendant aided a [lottery/policy] scheme or operation that

received money or written records from a person whose chances or

plays are represented by such money or records.

YES ________ NO ________

[OR]

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

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

13 Conviction on 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.

PROMOTING GAMBLING – BY CONDUCT THAT

MATERIALLY AIDS GAMBLING ACTIVITY

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

2. That defendant aided a [lottery/policy] scheme or operation that

received more than $100 in any on e day of money played in that

[lottery/policy] scheme or enterprise.14

YES ________ NO ________

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

gambling through materially aiding an unlawful lottery/policy scheme or enterprise is a disorderly person’s

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