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State v. Kelm

March 21, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELDEGARD KELM, DEFENDANT-APPELLANT.



On appeal from Superior Court, Law Division, Camden County.

Approved for Publication March 21, 1996.

Before Judges Long, Muir, Jr. and Bilder. The opinion of this court was delivered by Bilder, J.A.D. (temporarily assigned on recall).

The opinion of the court was delivered by: Bilder

The opinion of this court was delivered by

BILDER, J.A.D. (temporarily assigned on recall).

Following a jury trial defendant was found guilty of issuing a bad check, N.J.S.A. 2C:21-5, and theft by deception, N.J.S.A. 2C:20-4. She was sentenced to concurrent custodial terms of four years consecutive to any sentence imposed by the State of Delaware for violation of probation. A VCCB penalty of $100 was imposed; the State concedes that this penalty should only have been $60.

The State's evidence depicted the following account. In early February 1991, through a local attorney, defendant sought a short term loan of a few thousand dollars which she said she needed to complete an escrow for an absent buyer in a real estate transaction in which defendant was the broker. Based on information obtained from the attorney, Ms. Joan Williams, believing the amount to be $2500, agreed to meet with defendant to make such a loan. When the parties met on February 10, 1991, Ms. Williams was told by defendant that she was involved in a real estate deal for a manufacturing plant and that she would lose a real estate commission if she did not obtain sufficient money to complete an escrow, the buyer she represented being out of town and unavailable. She said she needed $6000 and would repay the loan either from a reimbursement from the buyer or from commissions from a Florida sale. On that day Ms. Williams loaned defendant $6000, in the form of a check for $3500 and $2500 in cash. Five days later, on February 15, 1991, she went to the attorney's office and found an envelope addressed to her which contained a check from the defendant for $6000. Later that day in a phone conversation, defendant requested Ms. Williams to delay depositing the check to permit uncollected funds to clear. The following week Ms. Williams learned the check was uncollectible. There followed assurances from defendant and unsuccessful efforts to obtain money from the drawee bank. Finally Ms. Williams went to the police and was advised to deposit the check and let it be dishonored. When it was returned with a notation that it should not be presented again, that no account was on file, Ms. Williams filed a criminal complaint against defendant. Records of the bank, testified to at trial, showed that defendant's account had negative balances from February 10, 1991 until is was closed on March 8, 1991.

For her part defendant admitted the making and delivery of the check for $6000 but claimed it was delivered on February 10, 1991 and had been post-dated. She denied any intention to defraud Ms. Williams. In her brief on appeal defendant contends:

POINT I.

THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT THE STATE IS NOT REQUIRED TO PROVE INTENT TO DEFRAUD AS AN ELEMENT OF ITS CASE UNDER N.J.S.A. 2C:21-5. (partially raised below)

1. The statute includes intent to defraud as an element of the State's case.

2. Case law includes intent to defraud as an element of the State's case.

3. The trial court's instructions were erroneous.

4. Public policy considerations require that intent to defraud be a required ...


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