the propriety of applying criminal sanctions. See Model
Penal Code and Commentaries, § 224.1, p. 298 (1980).
Consent is a defense to a charge of altering or
changing another’s writing. Also, ratification after the act
will not render the alteration or change noncriminal. See
N.J.S.A. 2C:21-1a(1).
VII. MAKING FALSE INSTRUMENT OR
SIGNATURE
The second type of proscribed conduct under the
statute is the making of a false instrument without
authorization. See N.J.S.A. 2C:21-1a(2).
Forgery cannot be committed by the making of a
genuine instrument, even though statements made
therein may be untrue. The false nature of the writing
required under N.J.S.A. 2C:21-1 is defined as a falsity
which must relate to the authenticity of the document
rather than to some extrinsic misrepresentation
contained therein. State v. Weigel, supra, 194 N.J. Super.
at 463. For example, a check drawn on an account where
the maker has no money is not a forgery where both the
maker and the account genuinely exist. State v. Berko, 75
N.J. Super. 283, 291-92 (App. Div. 1962).
Also, the falsity must change the legal operation and
effect of the instrument, or at least have the potential for
doing so. See, e.g. State v. Thrunk, supra, 157 N.J. Super.
at 271-72 (holding that alteration in a deed of the
description of land conveyed was “material” such that it
supported a charge of forgery); State v. Schultz, supra, 71
N.J. at 599-600 (holding that an intentionally false
endorsement on a check that has the capacity to have been
relied upon as legally significant constitutes forgery).
Regarding the use of fictitious persons in the making
of false instruments, it has been held that a check made
payable to a fictitious or nonexistent person is treated as
payable to the bearer when both the maker and bearer are
aware that the payee is fictitious. State v. Weigel, supra,
194 N.J. Super. at 461-62. In Weigel, defendants issued
checks payable to fictitious payees as part of a conspiracy
to illegally transport and dispose of toxic waste. Id. at
- The checks were given to a co-conspirator as
payment for illegally transporting the toxic waste. Id.
They were then endorsed in the name of the fictitious
payee and were cashed and cleared through a check
cashing service. Id. The Appellate Division held that the
Weigel defendants were not guilty of forgery against the
State because the use of the fictitious name was known to
both the maker of the check and the party cashing the
check, and because the checks were negotiable as bearer
instruments and were in fact negotiated. Id. at 461-62.A fictitious person could also be a fictitious
corporation. State v. Berko, supra, 75 N.J. Super. at 292.
In either case, the State bears the burden of proving that
the person or corporation is fictitious. Id. at 292-93.VIII. UTTERANCE OF FORGED INSTRU-
MENT
The third type of proscribed conduct is the uttering
of any writing which the defendant knows to be forged
pursuant to N.J.S.A. 2C:21-1a(1) or (2). A forged
instrument is uttered when it is offered as genuine
accompanied by words or conduct indicating that it is
genuine, without regard to whether it is so accepted.
State v. Gledhill, supra, 67 N.J. at 572. This includes a
person’s display of the instrument, such as a false medical
diploma, regardless of whether he actually issued it. State
v. Ready, 77 N.J.L. 329, 335 (Sup. Ct. 1909), reversed on
other grounds, 78 N.J.L. 599 (E. & A. 1910).If a person utters five checks at one time, it is a single
transaction constituting one offense. State v. Wright, 154
N.J. Super. 174, 177 (App. Div. 1977).IX. MULTIPLE OFFENSES: MERGER
Under pre-Code law, forgery was deemed to be a
more serious offense than theft by deception or obtaining
money under false pretenses. See State v. Wright, supra,
154 N.J. Super. at 181-82 (holding that obtaining
money under false pretenses merged with the “high
misdemeanor” of uttering forged instruments so that
defendant could only be sentenced solely on conviction
of the latter); State v. Reed, supra, 183 N.J. Super. at 189
(holding under pre-Code law that offense of attempting
to obtain money under false pretenses merged into
offense of uttering a forged instrument because “the lesser
crime should give way to the greater”).Under the Code, except where the amount involved
is less than $200, theft is the greater offense, whether it
be theft by unlawful taking or disposition, or theft by
deception. Cannel, Criminal Code Annotated, N.J.S.A.
2C:21-1, comment 2 (Gann 2000); see also N.J.S.A.
2C:20-3 and -4. Thus the Appellate Division has held
that only a single crime is committed when a theft by
deception is accomplished by uttering a forged
instrument and the latter offense should merge into the
former. See State v. Streater, 233 N.J. Super. 537, 544