A theft offense that is a variation of receiving stolen property is fencing. While this is not the most common form of theft charge in South Toms River, Plumsted, Beachwood, Toms River, Brick or Ocean County generally, fencing does arise in the region. If you happen to be one of the limited number of individuals charged with fencing, you definitely need to that you risk being sent to prison if you fail to successfully defend this violation. Most fencing charges are felony offenses (e.g. any incident involving property with a value of $200 or more) so hiring the best lawyer to defend your case is important.Beachwood NJ Fencing Offense Lawyer
Our Toms River criminal firm, Law Offices of Jonathan F. Marshall is well fitted to defend you against a fencing offense. We are a eight attorney boutique defense firm that has been defending charges in Ocean County for over 100 years between us. Several attorneys on our staff are former prosecutors, including Matthew Dorry who has served in approximately 15 Ocean County municipalities in the past, including Toms River, Jackson, Berkeley, Stafford, Lacey and Brick. One of the lawyers is available immediately to review the facts of your case and to formulate a comprehensive plan for defending your offense. These services are provided for free as part of your initial consultation. Contact our Toms River Office at (732) 286-6500 for the assistance you need.Fencing Charge in Ocean County
The offense of fencing is set forth at N.J.S.A. 2C:20-7.1. This law targets two separate varieties of conduct, namely, possession of altered property and dealings in stolen property. Each pedigree of this charge are discussed in the headings that follow.
I. Dealings in Altered Property. The first of these offenses makes it a crime for dealers in property to possess altered property. A dealer in property is defined as someone who buys and sells property as a business. Therefore a person who possesses altered property, but is not a dealer in property would not be guilty of this offense. Altered property, within the meaning of this offense, is property in which the identifying features, such as serial numbers and permanently affixed labels, have been removed or changed without the consent of the manufacturer.In addition to proving that the offender purposefully possessed the property, the state must also prove that the possessor knew or should have known that the identifying features have been removed or altered. What this should have known language really means in terms of the state of mind requirement is that the person must have acted negligently, where negligently is defined as they must be aware of a substantial and unjustifiable risk that the property has been altered. Nevertheless, the prosecution is entitled to three presumptions in regards to the knew or should have known requirement. The first of these allows the state to create the presumption that the person knew or should have known if the defendant is found in possession or control of two or more items of property stolen on two or more separate occasions. The second of these allows the state to create the presumption that the person knew or should have known if they have dealt in altered property on more than one occasion. The third of these allows the state to create the presumption that the person knew or should have known if the possessor is in the business of buying and selling that type of property and the defendant acquired the property without making reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it. There are other circumstances that allow these presumption too, such as the transaction is done outside the regular course of business, the product was purchased substantially below fair market value, or there was no reasonable inquiry into whether the source had legal right to possess or control the item.
However, there are several affirmative defenses that exist for a person that is found with altered property. The first of these defenses is that the person who is charged possesses the usual indicia of ownership, meaning that they possess whatever documents are typically associated with ownership of a particular item. The second affirmative defense is that the defendant was unaware that the property in his possession was property of another. The test under this defense is based on the honest of the defendant and not the reasonableness of that belief. The last affirmative defense is that the defendant acted under an honest claim of right to the property involved or that he or she had a right to acquire or dispose of it as he did.
So, to recap, there are really five material elements related to this offense. First the state must prove that you are dealer in property. Second, the state must prove that the identifying features of the property have been removed or altered. Third, it must be proved that the defendant possessed the altered property. Fourth, it must be proved that the defendant intended purposefully to possess the property. Lastly, the state must prove that the defendant knew or should have known that the property had been altered.Dealings in Stolen Property
The second offense that came out of this law regards dealing property that has been unlawfully taken. The offense encompasses anyone who traffics in, or initiates, organizes, plans, finances, directs, manages or supervises trafficking in stolen property. Traffic means to sell, transfer, distribute, dispense or otherwise dispose of property to another person. It also means to buy, receive, possess or obtain control of or use property, with intent to sell, transfer, distribute, dispense or otherwise dispose of such property to another person. This offense is complete even if there is no actual sale, or transfer, purchase, receipt, possession, obtaining of control or other disposition of the property. The offense is complete if the defendant initiates, organizes, plans, or finances the trafficking.
Unlike the culpability requirement for altered property, the state must simply prove that the defendant acted knowingly. The prosecution for this offense is entitled to the same presumptions as those listed above for altered property. The defendant is also entitled to the same affirmative defenses, with the minor adjustment that it is no defense to have the usual indicia of ownership for stolen property.
So, to recap, the state must prove three material elements in a prosecution for dealing in stolen property. First, it must be proved that the defendant traffics in, initiates, organizes, plans, finances, directs, manages or supervises the trafficking in property. Second, it must be proved that the property in question is stolen. Third, it must be proved that the defendant knows the property is stolen.
Degree of Offense & Penalties for Fencing. The general theft provisions relating to grading are applied to these fencing offenses. If the issue for the degree is the value of the property involved, this must be determined by the trier of the fact. The value of the property involved in the offense may be aggregated in determining the grade of the offense where the acts or conduct constituting the violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons engaged in the same scheme. Fencing can result in a second degree crime, third degree crime, fourth degree crime or disorderly perosns offense under 2C:20-7.1. The grading of a fencing offense, along with the related maximum penalties, are as follows:
- Second Degree Crime (i.e. property with value of $75,000 or more) carries a fine of up to $150,000 and 5-10 years in prison;
- Third Degree Crime ($500 to $74,999) results in a fine that can reach $15,000 and up to 5 years in prison;
- Fourth Degree Crime ($200 to $499) triggers a maximum fine of $10,000 fine and up to 18 months in prison;
- Disorderly Persons Offense ($1-$199) can result in your being sentenced to 6 months in jail and fined up to $1,000.
If you need further assistance regarding a fencing or any other theft offense in Brick Township, Ocean Township, Seaside Park, Tuckerton, Lakehurst, Ship Bottom or another town, contact our Toms River Office at (732) 286-6500. An attorney on our defense team will be more than happy to give you the time and attention you need to fully understand nature of your charge and what can be accomplished in your defense. Lawyers at Law Offices of Jonathan F. Marshall are available to assist you 24/7.Additional Theft Offense Resources on This Site