New Jersey authorities charged an out of state pair for the alleged use of bad checks to buy three homes. Indeed, a Grand Jury indicted them on second degree conspiracy, theft by deception, and passing bad checks, per the Attorney General. The man and woman allegedly presented checks drawn on a closed bank account as well as one with insufficient funds. Additionally, the closed bank account was allegedly in the name of a fictitious law firm. Two homes were in Gloucester County — Greenwich Township and Monroe Township — and one home was in Camden County — Winslow Township. Although titles changed hands, in each case the fraud was uncovered so no deeds were recorded, per the Attorney General.
Bad checks, money orders, electronic funds transfers, N.J.S.A. 2c:21-5
In order to convict, the State must prove beyond a reasonable doubt that the defendant:
- knowingly passed a check for the payment of money and
- knew the drawee would not honor the check when she passed it.
Definitions for Passing Bad Checks
“Check” means a draft payable on demand and drawn on a bank, or a cashier’s check, or a teller’s check. An instrument may be a check even though it is described on its face by another term, such as money order.1
“To issue a check” means to move the check into circulation.2
“To pass a check” means to deliver or circulate or hand the check from one person to another.3
“Drawee” means the financial institution at which the issuer had, or represented that she had, an account when she passed the check.
Statute, Passing Bad Checks
A person who issues or passes a check … for the payment of money … knowing that it will not be honored by the drawee, commits an offense as provided for in subsection c. of this section. For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check … (other than a post-dated check …) would not be paid, if:
- The issuer had no account with the drawee at the time the check or money order was issued … or
- Payment was refused by the drawee for lack of funds, or due to a closed account, after a deposit by the payee into a bank for collection or after presentation to the drawee within 46 days after issue, and the issuer failed to make good within 10 days after receiving notice of that refusal or after notice has been sent to the issuer’s last known address. Notice of refusal may be given to the issuer orally or in writing in any reasonable manner by any person.
- An offense under this section is a:
- second degree crime if the amount of the check, money order, or electronic funds transfer is $75,000.00 or more;
- third degree crime if the amount of the check, money order, or electronic funds transfer is $1,000.00 or more but is less than $75,000.00;
- fourth degree crime if the amount of the check, money order, or electronic funds transfer is $200.00 or more but is less than $1,000.00;
- disorderly persons offense if the amount of the check, money order, or electronic funds transfer is less than $200.00.
Passing Bad Checks, Case Law
A difference of opinion has emerged as to whether the State must prove that the defendant intended to defraud. For example, in State v. Passafiume, the Appellate Division held that passing a bad check requires a fraudulent intent.4 But in State v. Kelm, without citing Passafiume, the Appellate Division determined the statute did not require proof of fraudulent intent. Instead, the Kelm panel held that the statute merely required proof that the defendant issued or passed the check knowing the drawee would not honor it.
Did a bounced check result in charges for Passing Bad Checks?
New Jersey Criminal Defense Lawyer Michael A. Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations for all cases involving Passing Bad Checks under N.J.S.A. 2c:21-5.
1 N.J.S.A. 12A:3-104.
2 N.J.S.A. 12A:3-102.
3 State v. Beaver, 145 S.E.2d 330 (N.C. 1965).
4 State v. Passafiume, 184 N.J. Super. 447, 449 (App. Div. 1982).
5 State v. Kelm, 289 N.J. Super. 55 (App. Div. 1996), certif. denied, 146 N.J. 68 (1996).