cdTOCtest

committed a crime under this section only if he never
intended to pay off the liens. Id. at 48-51.

The court in Damiano also noted that a conviction for
theft under N.J.S.A. 2C:20-4 and a conviction under this
section may merge. Id. at 51.

C. Defenses

It is an affirmative defense to prosecution under this
section if the defendant proves by a preponderance of the
evidence that his conduct was not knowingly or recklessly
deceptive.

XII. SALE OF KOSHER FOOD

In 1988, the Legislature revised the statutes relating
to the sale of kosher food. N.J.S.A. 2C:21-7.2; N.J.S.A.
2C:21-7.3; and N.J.S.A. 2C:21-7.4.

The words and phrases “advertise,” “food,” “food
product,” “food commodity,” “food commodity in
packaged form,” “Kosher,” and “false representation” are
defined under the statute. N.J.S.A. 2C:21-7.2; N.J.S.A.
2C:21-7.3a.

The presence of any non-kosher food or food product
in any place of business that advertises or represents itself
in any manner as selling, offering for sale, preparing or
serving kosher food or food product only, is presumptive
evidence that the person in possession offers the same for
sale in violation of the statute. N.J.S.A. 2C:21-7.3b.

It is a complete defense to a prosecution under this
act that the defendant relied in good faith upon the
representations of a slaughterhouse, manufacturer,
processor, packer or distributor, or any person or
organization which certifies or represents any food or food
product at issue to be kosher, kosher for Passover, or as
having been prepared under or sanctioned by Orthodox
Jewish religious requirements. N.J.S.A. 2C:21-7.3c.

Four categories of disorderly persons offenses are
created under this statute, prohibiting the false
advertising, mislabeling, and improper sale, or display for
sale of non-kosher food as kosher food. N.J.S.A. 2C:21-
7.4.

However, commentators question whether a
prosecution under this section of the Code can withstand
constitutional attack. See Cannel, supra, N.J.S.A. 2C:21-
7.4; see also Ran-Dav’s County Kosher, Inc. v. State, 129
N.J. 141, 145 (1992), cert. denied, 507 U.S. 952 (1993).

In the Ran-Dav’s case, certain purveyors of kosher food

attacked the constitutionality of a consumer fraud statute

which, like this section, regulated the sale of kosher foods.

Id. The New Jersey Supreme Court held that the statute

violated the establishment clause because it involved the

state in deciding what practices were required by

religious law and in enforcing them. Id. There appears

to be no material difference between the statute at issue

in the Ran-Dav’s case and this section. Cannel, supra,

N.J.S.A. 2C:21-7.4, comment 3. However, the effect of

loss of this section would be small, since prosecutions for

selling non-kosher food as kosher food can be brought

under the deceptive business practices statute, N.J.S.A.

2C:21-7. Id.

XIII. MISREPRESENTATION OF MILEAGE OF

MOTOR VEHICLE

It is a disorderly persons offense to sell, exchange,

offer for sale or exchange or expose for sale or exchange a

used motor vehicle on which the actor has changed or

disconnected the mileage registering instrument on the

vehicle to show a lesser mileage reading than that actually

recorded on the vehicle or on the instrument with the

purpose to misrepresent the mileage of the vehicle.

N.J.S.A. 2C:21-8.

This statute does not prevent the servicing, repair or

replacement of a mileage registering instrument which

by reason of normal wear or through damage requires

service, repair or replacement if the instrument is then set

at zero or at the actual previously recorded mileage. Id.

This statute applies to individuals as well as dealers.

A dealer who violates this statute is subject to having his

license revoked, after notice and a hearing, in addition to

other penalties assessed under this section. See N.J.S.A.

2C:2C:21-8.

An acquittal in a prosecution under this section will

not bar a civil suit by the attorney general for consumer

fraud. Kugler v. Banner Pontiac-Buick Opel, Inc., 120 N.J.

Super. 572, 580 (Ch. Div. 1972).

XIV. DEFINITION AND DETERMINATION

OF DEGREE OF CHAPTER 21 OFFENSES

A. Definition

As used in Chapter 21, unless a different meaning

plainly is required, “benefit derived” means the loss

resulting from the offense or any gain or advantage to the