Bad Checks, or Bounced Checks in New Jersey--Basic Facts
Bad checks are also called “bounced checks.” The New Jersey statute that discusses bad (or bounced) checks is N.J.S. 2C:21-5. That statute is in Chapter 21 of the New Jersey Code of Criminal Justice. Chapter 21 relates to forgery and fraudulent practices.
Under N.J.S. 2C:21-5, a person who issues or passes a check for the payment of money, knowing that it will not be honored by the bank, commits an offense. In order to obtain a conviction, the State of New Jersey must prove that the defendant knew at the time they issued or passed the check that it would not be honored by the bank on which it was drawn. The seriousness of the offense of issuing a bad check depends on the amount of the check:
Amount of Check
Seriousness of Offense
|$75,000.00 or more||Second Degree|
|At least $1,000.00, but less than $75,000.00||Third Degree|
|At least $200.00, but less than $1,000.00||Fourth Degree|
|Less than $200.00||Disorderly Persons Offense|
New Jersey law allows a jury to presume that the issuer knew that the check would bounce under the following circumstances:
1. The person who issued the check had no account with the bank upon which the check was drawn at the time he issued the check; or
2. Payment was refused by the bank for lack of funds, upon presentation within forty-six days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal or after notice has been sent to the issuer's last known address.
Post Dated Checks in New Jersey
The bad checks statute applies to post dated checks. Post dated checks, in themselves, are completely legal. It sometimes happens that an account upon which a post dated check is drawn will lack sufficient funds to cover the check when the indicated date arrives. Whether that situation violates the bad check statute depends on what the person who issued the check knew at the time they issued the check. If the issuer knew that the account would have insufficient funds, they violated the statute. However, if they believed the funds would be in the account on the designated date, even though that belief was incorrect, they have not violated the bad checks law. The fate of the defendant in a bad checks trial sometimes rises or falls on how persuasive their New Jersey lawyer is in creating reasonable doubt for the jury concerning what the issuer believed.
Stop Payment Orders in New Jersey
Sometimes a dispute arises after a check is issued, and the issuer gives their bank a stop payment order. The stop payment order, in and of itself, does not violate the bad checks statute. So long as the issuer believed when they issued the check that their bank would honor the check, they have not commited the bad checks crime. On the other hand, if the issuer at the time they issued the check intended to instruct the bank to stop payment, they have violated the bad check statute. In that situation, the amount of funds in the account may not matter.
Checks Issued for Prior Debts
There is a body of law that holds that checks that bounce, when issued in full or partial satisfaction of prior debts, cannot support a successful bad debt prosecution. This body of law is sometimes referred to as the “antecedent debt rule.” The reasoning that supports this antecedent debt rule is that since the prior debt is not extinguished by the bounced check, issuance of that bounced check does not support a necessary element of the offense, namely, intent to defraud.
New Jersey does not recognize this antecedent debt rule. Neither do most other states. To understand the reason the antecedent debt rule is disfavored, one need look no further than what how N.J.S. 2C:21-5 is defined. Quite simply, intent to defraud is not an element of the crime. Thus, so long as the elements of the offense are satisfied, intent to defraud is irrelevant. Those elements, as indicated above, are issuing (or passing) a check, while knowing the bank upon which it is issued will not pay it.
Bad Check Lawyers in New Jersey
Despite inability to rely upon the antecedent debt rule, numerous defenses to bounced check charges still exist. Criminal Lawyers in New Jersey™ has forty-five years experience defending charges such as these. In fact, the very first court case that Mr. Marain ever handled, in 1976, was for client K.H, accused of issuing a bad check. The judge dismissed the complaint.
Persons charged with, or who may be charged with issuing a bad check should speak with an experienced New Jersey criminal defense lawyer immediately. Time is a precious resource. Criminal Lawyers in New Jersey can use this time effectively on their behalf.