Contracts and Criminal Liability (Part 6)

The second principal issue presented in the case was whether false representations made during contract negotiations or in furtherance of obtaining a mortgage constitute a theft by deception under New Jersey’s criminal code. The court held in relevant part as follows: We next consider the State’s challenge to the court’s dismissal of count two, which charged second-degree theft by deception, N.J.S.A. 2C:20-4(a). The indictment alleges defendants committed a theft of the contract, the ACO, by deceiving the NJDEP as to SEP’s financial condition and ability to generate revenue through solar power generation. The court dismissed count two, finding that theft of a contract was inconsistent with the grading of theft offenses and therefore a charge of theft of the ACO by deception “does not fit.”

Defendants are charged in count two, which provides: A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely: a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind . . . but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

“A person cannot be convicted of theft by deception unless he has obtained the property of another by purposely creating a false impression.” In pertinent part, “property” is defined as “anything of value, including contract rights.” The “‘property of another’ includes property in which any person other than the actor has an interest which the actor is not privileged to infringe.” “Obtain” means “in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another.”

The citation to the “does not fit” language used by the trial court foreshadows another reversal. It is only in the rarest of circumstances that indictments should be dismissed. To hold up on appeal, the analysis in support of dismissal would have to be a lot more detailed and sophisticated.