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State v. Burks

Decided: January 25, 1983.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN A. BURKS, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Essex County.

Botter, Polow and Brody. The opinion of the court was delivered by Brody, J.A.D.

Brody

This appeal presents the novel problem of determining "the amount involved" in the theft of a negotiable instrument for the purpose of grading the offense under the Code of Criminal Justice. Before adoption of the Code, grading was not required because larceny of a negotiable instrument was a high misdemeanor regardless of its value. N.J.S.A. 2A:119-3.

Defendant was convicted of theft by obtaining a $3,000 check by deception. N.J.S.A. 2C:20-4. A theft is a third degree crime if "the amount involved exceeds $500.00 but is less than $75,000.00." N.J.S.A. 2C:20-2(b)(2)(a). Defendant received a sentence of imprisonment for a term of four years, the presumptive custodial sentence for a third degree crime. His major argument rests on the claim that the check was worthless because it was drawn on an account with insufficient funds to pay it. As a result he contends that the judge erred in denying his motion for acquittal. Alternatively, he contends that the judge committed plain error in failing to direct the jury to determine the amount of the theft and to instruct them with regard to that issue.

Louis Tosoni, the alleged victim, gave the following uncontradicted account of the crime. Tosoni was seeking venture capital when he responded to defendant's ad announcing the availability

of business loans. Defendant encouraged him to believe that a $35,000 loan would be forthcoming. After sustaining Tosoni's hopes for over a year and a half, defendant finally reported that he had arranged the loan. He told Tosoni the money would come through only if Tosoni gave him $3,000 to hold as a "good faith binder" until the loan closed, at which time he would keep the $3,000 as his commission.

Tosoni had no checking account. He borrowed a blank unsigned check from his friend Phillip Kotar, telling him only that he wanted to show it to someone. Kotar mentioned to Tosoni that there was practically no money in the account. Tosoni made out the check to defendant in the amount of $3,000 and signed Kotar's name as the drawer. When he later gave defendant the check he told him there were no funds in Kotar's account. Defendant assured Tosoni it made no difference because he would return the check and pay himself the commission out of the proceeds of the loan.

Defendant promptly deposited the check in his checking account in New York, wrote checks totaling $2,000 against this deposit which the New York bank paid, and fled. Kotar's bank refused to pay the check because the account had a negligible balance. All claims and charges were resolved by Tosoni's reimbursing the New York bank $2,000 and by this prosecution.

Before adoption of the Criminal Code, the grading of larcenies generally depended upon "the price or value" of the property stolen. N.J.S.A. 2A:119-2. In cases where the grading statute applied, the judge was required to instruct the jury to determine by its verdict the statutory range within which the price or value fell. Failure to do so constituted plain error, State v. Romero, 95 N.J. Super. 482, 488 (App.Div.1967), even though the evidence of price or value was uncontradicted. See State v. Fungone, 134 N.J. Super. 531, 535 (App.Div.1975), certif. den. 70 N.J. 526 (1976).

A check is a negotiable instrument. N.J.S.A. 12A:3-104(2)(b). The Code no longer has a special category for theft of negotiable instruments. Its grading section applies to all thefts of "property,"

defined as "anything of value." N.J.S.A. 2C:20-1(g). Once it is established that the thing stolen has value, grading turns on the manner in which the theft was committed, the nature of the property stolen or "the amount involved." N.J.S.A. 2C:20-2(b).*fn1 The present case falls under the last ...


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