intended for an unlawful purpose. N.J.S.A. 2C:20-1.1
(effective January 24, 1997). Purchase of property at a
price substantially below fair market value or without
reasonably inquiring as to the property’s authenticity,
unless satisfactorily explained, provides an inference of
knowledge that the property is stolen. N.J.S.A. 2C:20-
7.1e(1), e(3). A merchant who fails to provide the usual
indicia of ownership, unless satisfactorily explained,
provides an inference that the property is stolen. N.J.S.A.
2C:20-7.1e(2).
Operating a facility for the sale of stolen automobile
parts is a second-degree crime which also results in
forfeiture of the privilege to operate a motor vehicle
between three to five years. N.J.S.A. 2C:20-16. Leading
an automobile theft network is a second-degree crime
which does not merge with the object of the conspiracy.
N.J.S.A. 2C:20-18.
F. Theft of Services
The Appellate Division interpreted this subsection
to require the State to prove a verbal or physical act of
deception or fraud. Merely accepting services which the
defendant realizes he is not entitled to does not violate the
statute. State v. Kocen, 222 N.J. Super. 517, 520 (App.
Div. 1988).
This subsection is broadened to involve theft of any
public service. N.J.S.A. 2C:20-8a. The Legislature
extended inferences of an intent to defraud from
tampering and possession of devices for service
acquisition, disorderly persons offenses, to the crime of
theft of services. N.J.S.A. 2C:20-8l superseding State v.
Dixon, 114 N.J. 111, 120 (1989). The Appellate
Division has given this amendment retroactive effect.
State v. Swed, 255 N.J. Super. 228, 240 (App. Div. 1992).
This effect did not violate due process. Id.
N.J.S.A. 2C:20-8k mandates an additional $500 fine
per offense in this subsection, and instructs the court to
consider all remedial costs incurred by the victim in
establishing restitution.
G. Theft by Failure to Make a Required Disposition
When the defendant is other than an officer or
employee of a government or financial institution, to
sustain a conviction for theft by failure to make required
disposition the State must prove that the defendant
obtained or retained property, failed to make the required
payment as he knew the law required, and dealt with the
property obtained as his own. In re Hoerst, 135 N.J. 98
(1994); State v. Kelly, 204 N.J. Super. 283 (App. Div.
1985), certif. den., 103 N.J. 496-97 (1986). The fact
that any payment or other disposition was made with a
subsequently dishonored negotiable instrument is prima
facie evidence of the actor’s failure to make the required
disposition, and the trier of fact may draw a permissive
inference that the actor did not intend to make the
required payment or other disposition. N.J.S.A. 2C:20-- When the defendant is an officer or employee, there
is a permissive inference that he knew of his obligation to
make the disposition and that he dealt with property as
his own if an audit revealed a shortage or falsification of
accounts. Id.
It is especially important for the trial court in cases
involving businesses in distress to distinguish between
civil liability due to mismanagement, undercapitalization
and efforts to ward off bankruptcy versus a criminal intent
to defraud. State v. Damiano, 322 N.J. Super. 22, 36-42
(App. Div. 1999), certif. den., 163 N.J. 396 (2000).A conviction for failure to make a required disposition
will not stand for a failure to collect sales tax by falsely
listing a purchase of property as non-residents or tax-
exempt organizations, since the actor did not collect the
tax and withhold it from the State. State v. Altenberg, 223
N.J. Super. 289, 297 (App. Div.), aff’d o.b., 113 N.J. 508
(1988). Collecting the tax and withholding it from the
State suffices for a conviction. State v. Pescatore, 213 N.J.
Super. 22, 29 (App. Div. 1986), aff’d o.b., 105 N.J. 441
(1987).H. Unlawful Taking of a Means of Conveyance or
JoyridingThis offense is subsumed by burglary. State v. Jijon,
264 N.J. Super. 405 (App. Div. 1993), aff’d o.b., 135 N.J.
471 (1994). The unlawful taking of a means of
conveyance, N.J.S.A. 2C:20-10, is also a lesser included
offense of theft of movable property, N.J.S.A. 2C:20-3,
State v. Alexander, 215 N.J. Super. 522 (App. Div. 1987),
and theft by failure to make a required disposition,
N.J.S.A. 2C:20-9. State v. Dandy, 243 N.J. Super. 62, 64
(App. Div. 1990). Because theft requires an intent to
deprive the owner of the property, there was no theft of
a car under the terms of the insurance policy where the
evidence demonstrated that the insuree’s son borrowed
the car merely for a joy ride. Meissner v. Aetna Cas. and
Sur. Co., 195 N.J. Super. 462, 467-468 (Law Div. 1984).