[181 NJSuper Page 560] Defendant Ott pleaded guilty to 15 counts of forgery, N.J.S.A. 2C:21-1(a)(2), and five counts of theft by failure to make required disposition of property, N.J.S.A. 2C:20-9. Those charges were part of a 58-count indictment involving charges of forgery, uttering a forgery, theft by deception, embezzlement and theft by failure to make required disposition of property. They all arose from the business operation of the American Automobile and Travel Club, Inc., a corporation owned by defendant through which he engaged in the business of placing automobile insurance coverage and of providing auxiliary travel services to club members. The cash flow problems of the corporation led defendant into two types of criminal conduct: (1) he would advise clients that he had placed insurance coverage for them, would accept the required premium and then delay placing the coverage until the company had ready cash to do so; in the case of some clients that never came to pass; (2) in some cases rebate-of-premium checks were received from insurance carriers made out to the corporation and to the client. Defendant forged the client's name and deposited the checks in the corporate account.
Ott is before the court for sentencing on his guilty pleas. The issue here focuses on the forgery charges. The question is whether they shall be sentenced as third degree or fourth degree offenses. That question has been addressed by the three-judge Resentencing Panel created by the Supreme Court. State v. Reed , 174 N.J. Super. 407 (Resent. Panel 1980); State v. Young , 174 N.J. Super. 489 (Resent. Panel 1980). In those cases it was held, for the purposes of N.J.S.A. 2C:1-1(d)(2), that forgery of a check was a crime of the third degree if the check was for $500 or more, and one of the fourth degree if the check was for less than $500 and more than $200. For the purpose of an original sentencing under the Code I conclude otherwise.
N.J.S.A. 2C:21-1, in pertinent part, provides as follows:
a. Forgery. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1) Alters or changes any writing of another without his authorization or ratification.
(2) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act. . . .
(3) Utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2).
"Writing" includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.
b. Grading of forgery. Forgery is a crime of the third degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments, certificates or licenses issued by the government, or part of an issue of stock, bonds or other instruments representing interest in or claims against any property or enterprise.
Otherwise forgery is a crime of the fourth degree.
It is apparent, and surprising, that the Legislature, in enacting the grading section of the forgery statute, did not clearly include forgery of checks and other bank instruments such as withdrawal slips. It is in that context that the crime of forgery usually occurs. Unless a check or a withdrawal slip constitutes an "issue of money," forgery of a ...