Non-Payment

If a person purposely receives or retains property for which he has a legal obligation to make a specified payment or other disposition (given a different piece of property) and deals with the property as his own and doesn't make the proper payment, he commits theft governed under N.J.S.A. 2C:20-9. Similarly, paying with an illegitimate check, bill of exchange, or any other dishonored negotiable instrument is accompanied with the presumption that the accused did not intend to lawfully pay for the property and thus committed a theft. One can commit this crime even if it is impossible to prove that the victim previously owned the item in question. According to State v. Kelly (204 N.J. Super.283), for a conviction it must be shown that the accused:

• obtained or retained the property in question under some form of agreement or subject to a nonlegal obligation to make a specified payment or some other disposition.
• dealt with the property as though it were his own and failed to make the required payments or other disposition of the crime [sic] according to the agreement or his legal obligation. To be guilty of this offense the defendant may either have actually taken the property for his own use or may have failed to make the required payments or other disposition.
• purposely obtained or retained the property and failed to make the required payments or other disposition.

Government officers and employees and financial institutions are presumed:

1. to know the obligations covered in this statute
2. to have unlawfully converted the property to his ownership if he fails to pay the required amount

The most important element of this crime in order to convict is the intent to permanently deprive the victim of the payment in question. In State v. Damiano (322 N.J. Super. 22, 41-42), the court reversed convictions received under this statute. The defendant was accused of taking money which was supposed to be used to pay-off outstanding debts on cars or to purchase extended warranties, neither of which were actually done. However, it was found that the defendant was using the funds in order to prevent bankruptcy and intended to meet his obligations when he had the sufficient funds for it. Thus, he did not have the intent to permanently deprive the victims of their money and so he should not be charged under this statute. It is important to distinguish between civil liability, such as mismanagement or undercapitalization (operations are hindered because of lack of funds) and criminal liability where proof of criminal intent is needed.

The punishments for committed this offense follow the guidelines for theft punishments, found here.

If you have any questions regarding this statute please contact a NJ criminal defense lawyer at LS&P Lawyers. We are available 24/7 for consultation and provide representation for people all over New Jersey.

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