Understanding New Jersey Section 2C:21-8.1 – Definition and Determination of Degree of Offense

New Jersey Section 2C:21-8.1 is part of the state’s criminal code that deals with the definition and determination of the degree of certain offenses related to forgery and fraud. This section provides important definitions and guidelines for assessing the severity of offenses under Chapter 21 of the criminal code.

Key Definitions

Section 2C:21-8.1 starts by providing key definitions that apply throughout Chapter 21[1]:

• “Benefit derived” means the loss resulting from the offense or any gain or advantage to the actor, co-conspirators, or any person in whom the actor has a pecuniary interest. This relates to calculating the benefit obtained through an offense when determining its degree.
• “Government” includes the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.
• “Value” means the fair market value of the property or services at the time and place of the offense or, if the fair market value cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the offense.

Determining the Degree of Offense

The degree of an offense under Chapter 21 depends on the value of the benefit derived or sought to be derived from the offense[1]. Section 2C:21-8.1 lays out how to determine the degree:

• If the benefit is $75,000 or more, the offense is a crime of the second degree.
• If the benefit is $500 or more but less than $75,000, the offense is a crime of the third degree.
• If the benefit is less than $500, the offense is a crime of the fourth degree.

There are some exceptions:

• If the benefit derived involves a structure used for religious worship, then the offense is one degree higher than it would otherwise be.
• Forgery of items like credit cards or personal identifying information is a third degree crime regardless of the benefit derived.
• Forgery of government documents and currency are crimes of the third degree if the benefit is $500 or more, and fourth degree if less than $500.

Interpreting “Benefit Derived”

The definition of “benefit derived” is important because it determines the degree of the offense. Some key points[1][2][3]:

• It includes not just direct gains to the defendant, but also losses avoided through the criminal act.
• For theft and fraud crimes, it is the fair market value of property or services unlawfully obtained.
• For forgery involving altering documents, it is the amount by which the document’s value increased.
• For identity theft, it includes the value of products/services obtained plus costs incurred by the victim.
• It is based on the intended loss, even if the actual loss was less.

There has been litigation over how to calculate benefit derived in certain cases. Defense attorneys may argue for a lower degree based on a narrow reading of benefit, while prosecutors seek a higher degree. The precise determination can significantly impact the sentence.

Defenses

For offenses under Chapter 21, possible defenses include[4][5]:

• Lack of intent – the defendant did not knowingly or purposefully commit the criminal act. This could apply if someone was unaware goods were stolen when receiving them.
• Entrapment – the offense was induced by law enforcement officials.
• Duress – the defendant was coerced into committing the act by threat of harm.
• Intoxication – the defendant was too impaired to form the requisite intent.
• Mistake – the defendant had a mistaken belief that his actions were lawful. For example, using a credit card he mistakenly thought he was authorized to use.
• Consent – for identity theft, the victim consented to the use of identifying information.

The burden is on the prosecution to prove all elements of the offense beyond a reasonable doubt. An experienced criminal defense attorney can argue against applying Section 2C:21-8.1 in borderline cases, or for a lower degree of offense based on the specific circumstances. They may also raise affirmative defenses like entrapment or mistake to fight the charges.

With severe penalties on the line, those facing charges related to fraud or forgery should consult counsel to craft the strongest defense. Thorough investigation and advocacy can help achieve the most favorable outcome under Section 2C:21-8.1.