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State v. Turetsky

Decided: February 4, 1963.


Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.


[78 NJSuper Page 206] Defendants were found guilty by a jury in the Union County Court of having issued a worthless

check on November 18, 1960, payable to the order of County Plumbing, Inc. in the amount of $1,000, in violation of N.J.S. 2A:111-15. They were duly sentenced and now appeal from the judgment of conviction.

Defendants contend in their argument for reversal that the State failed to establish a violation of N.J.S. 2A:111-15; that the trial court erred in (1) not ruling as a matter of law that there was no intent to defraud on the part of the defendant Lillian Turetsky; (2) refusing to charge the defendants' requests; and (3) in its evidentiary rulings; and that the verdict was against the weight of the evidence and a product of prejudice, passion, bias or mistake.

N.J.S. 2A:111-15 provides as follows:

"Any person who, for himself or as agent or representative of another person, or as an officer or agent of any corporation, or as a member of a partnership, with intent to defraud, makes, draws, utters or delivers a check, draft or order for the payment of money, upon any bank or other depository, knowing at the time of so doing that the maker, or drawer, has no funds or insufficient funds in, or credit with, such bank or other depository for the payment of such instrument, in full, upon its presentation, although no express representation is made in reference thereto, is guilty of a misdemeanor and shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 1 year, or both."

Under that provision, in order to justify the conviction of a defendant, it is necessary for the State to prove beyond a reasonable doubt three essential elements, to wit: (1) the making, issuance or delivery of a check; (2) with knowledge that the maker has insufficient funds for its payment in full upon its presentation, and (3) with intent to defraud.

Under their first point defendants concede the making and delivery of the check to an officer of the payee, but they contend that the State presented no evidence showing that they knew there would not be sufficient funds to honor the check, and that the State's evidence itself established that no fraud was committed upon the payee.

N.J.S. 2A:111-16 provides that the making, drawing, uttering or delivery of a check as stated in N.J.S. 2A:111-15

"shall be prima facie evidence of intent to defraud." The other provision in N.J.S. 2A:111-16, to the effect that the certificate of protest of nonpayment shall be presumptive evidence that there were insufficient funds in the bank and that the person making, drawing, uttering or delivering the instrument knew that there were insufficient funds in the bank, is not applicable to this case, because the check in issue did not have any certificate of protest annexed to it pursuant to a request by the payee's bank upon the drawee bank that the check be not protested.

To evaluate the several contentions made by the defendants, we now summarize the evidence as presented by the State and as presented by the defendants.

On July 7, 1959 Nappo Construction, Inc. (hereinafter "Nappo") opened a checking account in the Irvington office of the National State Bank. The corporate resolution authorizing the opening of the account provided that checks could be signed by any two of its three officers. The officers were listed as Jack Turetsky, president, Lillian Turetsky, vice-president, and Leo Turetsky, secretary. At no time after November 14, 1960 was there a balance in this corporate account in excess of $742.22.

Edward Saladino, an officer of County Plumbing and Heating Company, Inc. (hereinafter "County"), which had done work for Nappo Construction, Inc. in connection with several houses Nappo had built and was building in Mountainside, N.J., testified that on November 18, 1960, in the morning, he told the defendant Jack Turetsky that County needed money to buy materials to complete the work in some of the unfinished houses. At that time, according to Saladino, Nappo was indebted to County for work already done to the extent of "roughly $5,000 or $6,000." This conversation took place in front of one of the buildings in Mountainside, about five or six feet from an automobile in which Lillian Turetsky was then seated. She did not participate in the conversation. Saladino stated that Jack Turetsky then and there gave him the $1,000 check in issue, signed by Jack and

his mother Lillian, so that County could purchase materials to complete the job.

Saladino had misgivings as to whether this check was any good, because he had previously received two worthless checks from Nappo. So, he forthwith, on the same day, took the check to Nappo's bank in Irvington and presented it for payment. However, payment was refused on such presentation. Saladino says that he was then and there told by a bank official that there were not sufficient funds to honor the check. In his words,

"The man laughed at me and said: 'You are about 100 on the list. If you can find Mr. Turetsky tell ...

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