N.J. Model Criminal Jury Charge, N.J.S.A. 2C:20-9

Approved 2/22/93

THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION

OF PROPERTY RECEIVED

(N.J.S.A. 2C:20-9)

The indictment charges the defendant with the offense of theft by failure to make

required disposition of property received. That section of our statute reads in pertinent part:

A person who purposely obtains or retains property upon

agreement or subject to a known legal obligation to make specified

payments or other disposition whether from such property or its

proceeds or from his own property to be reserved in equivalent

amount, is guilty of theft if he de als with the property obtained as

his own and fails to make the required payment or disposition.

In order to find the defendant guilty of this th eft offense, the State must prove each of the

following elements beyond a reasonable doubt:

(1) That the defendant purposely obtained or retained the property;

(2) That the defendant did so upon agreem ent, or subject to legal obligation;

(3) That this agreement or legal obligati on required the defendant to make specified

payment or other disposition from the pr operty itself or its proceeds, or from

his/her own property to be reserved in equivalent amount;

(4) That this legal obligation was known to the defendant;

(5) That the defendant purposely dealt with the property as if it were his/her own; and

(6) That the defendant purposely failed to make the required payment or disposition.

(Charge the following only if applicable to the facts of the case)

Any payment made with a subsequently dis honored negotiable instrument, for example, a

bad check, shall constitute evidence of the ac tor's failure to make the required payment or

disposition. You may infer therefrom that the actor did not intend to make the required payment

or other disposition.

OR

If you find that the defendant is an officer or employee of the government or of any

financial institution then you may infer;

(a) That he/she had knowledge of hi s/her legal obligation to make the

specified payment or other disposition. And

Theft By Failure To Make Required Disposition

Of Property Received

(N.J.S.A. 2C:20-9)

(b) If you find that he/she failed to pay or account upon lawful demand or if

an audit revealed a shortage or falsification of accounts then you may infer

that he/she dealt with the property as his/her own.

However, you are never required or compelled to draw an inference. It is your exclusive

province to determine whether the facts and circumstances s hown by the evid ence support any

inferences and you are always free to accept or reject them if you wish.

CONTINUE WITH THE CHARGE

With respect to some of the words used in defining the elements, I instruct you as

follows:

The word "obtain" means to bring about a transf er or purported transfer of a legal interest

in the property, either to the defendant himself/herself or another person.

A person acts purposely with respect to the nature of his/her conduct or a result thereof if

it is his/her conscious object to engage in conduct of that nature or to cause such a result. A

person acts purposely with respect to attendant circumstances if the person is aware of the

existence of such circumstances or believes or hopes that they exist. "With purpose",

"Designed", "With Design", or equivalent terms have the same meaning.

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", "W ith knowledge" or equivalent terms have the

same meaning.

The word "Property" is defined as anything of value including tangible or intangible

personal property.

I further instruct you that the foregoing applies even though it may be impossible to

identify particular property as belonging to the victim at the tim e the defendant allegedly failed

to make the required payment or disposition beca use the victim's property may have been mixed

with or joined with other property.

Theft By Failure To Make Required Disposition

Of Property Received

(N.J.S.A. 2C:20-9)

If after a review of all the evidence you fi nd that the State has failed to prove any one of

the elements of this offense beyond a reasona ble doubt, then you must find the defendant not

guilty of the charge.

If you find that the State ha s proved all of the elements above beyond a reasonable doubt.

Then you must find the defendant guilty of the charge.