Passing a Bad Check is punishable under N.J.S.A. 2C:21-5. This is one of the most commonly charged theft offenses. As an Essex County criminal defense lawyer, I have defended those facing a complaint in the various New Jersey courts for this offense and have had continued success. Passing a bad check can also be charged as theft by deception under N.J.SA. 20-4. Either way, the proofs needed for conviction are similar. The main difference is the grading (degree of offense). As you will see below, a violation of N.J.S.A. 2C:21-5 becomes a third degree offense when the amount involved is between $1000 and $75,000. A third degree theft offense starts at $500.
The following sections will provide important information, including the actual statute, passing a bad check defenses, penalties, and grading of offense provisions. As always, the facts of every case are different. If you have been arrested and charged with passing a bad check or a related theft by deception offense, you should contact a NJ criminal defense attorney who offers free consultations.
N.J.S.A 2C:21-5. Bad checks Statute
2C:21-5. A person who issues or passes a check or similar sight order 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 or money order (other than a post-dated check or order) would not be paid, if:
a. The issuer had no account with the drawee at the time the check or order was issued; or
b. 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.
c. An offense under this section is:
(1) a crime of the second degree if the check or money order is $75,000.00 or more;
(2) a crime of the third degree if the check or money order is $1,000.00 or more but is less than $75,000.00;
(3) a crime of the fourth degree if the check or money order is $200.00 or more but is less than $1,000.00;
(4) a disorderly persons offense if the check or money order is less than $200.00.
In order to convict under this statute, the State must prove that the defendant issued or passed the a check knowing that it would be dishonored at that time. Proof of fraudulent intent is not required.
This means that even a post dated check could fall under the protections of the bad check statute if the State can prove that the defendant knew that the check would not be honored at that later date.
There are certain presumptions that may applied by the finder of fact in bad check prosecutions. First, if the defendant wrote a check, but did not have a checking account with the institution, the judge or jury can make the permissive inference that the defendant knew it was a bad check at the time it was passed. Secondly, if the defendant has an account, and the alleged victim tries to draw on the check but is unable to do so, and puts the defendant on notice, who in turn does nothing, then the judge may infer that the defendant knew it was a bad check at the time of passing. Once again, these are permissive inferences and can be rebutted by the defense. The presumptions do not apply to post dated checks.
For example, I recently defended a client charged with passing a bad check in a Bergen County municipality. The individual had passed a post-dated check, with the understanding that the check would not be deposited for 3 weeks, and not deposited at all if cash was paid in satisfaction of the debt prior to. Before the three weeks had passed, my client offered to pay a portion of the money owed in cash. The complainant had not provided all the products agreed upon. There was some hard feelings, but in the end the complainant accepted the payment.
Thereafter, my client canceled the check and the complainant, nonetheless, attempted to cash it. The check was refused and a complaint was filed. After speaking with the prosecutor, he agreed that the act of canceling the check subsequently did not prove that the defendant knew it would not be honored at the time of passing. In addition, I had proof that a payment had in fact been made to the complainant. Moreover, the complainant provided no notice. It was agreed that this was a dispute as to how much money was owed, and should be heard by the special civil section of the Superior Court. The NJ criminal system was not the proper place for adjudication.
The criminal case was dismissed and the complainant never filed a complaint with the civil section.
NJ bad check charges range in degree of offense from disorderly persons offense up to a crime of the second degree. The amounts involved will be the determining factor. Please see the statute to determine your degree of offense.
A disorderly persons offense carries up to 6 months in jail. A 4th degree offense carries up to 18 months, 3rd degree between 3 and 5 years, 2nd degree between 5 and 10 years in prison.
It should be noted that these cases can be resolved frequently pre-trial. Even in seemingly bad situations, I have been able to achieve excellent results for my clients, and in many cases helped to avoid criminal convictions, heavy fines, and years of embarrassment for my clients by avoiding a criminal record.
Remember, if you are not a citizen, you could be facing deportation for a bad check conviction. If you are a teacher you could lose your job. If you are looking for employment, you may be passed over if a theft offense appears on your record. This is considered a crime of moral turpitude, so it is imperative that you do all that you can to avoid a conviction for this charge.