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Theft By Deception in New Jersey Home Improvement Contractors Unfairly Treated?

Wall New Jersey Criminal Defense Attorneys serving Monmouth County, Ocean County, Middlesex County and all surrounding NJ areas.

Posted: September 25, 2009

There are real theft by deception cases in New Jersey that unquestionably fit the language of the theft by deception criminal statute. Recently, a Monmouth County local newspaper, The Hub, wrote a story about a Fair Haven New Jersey man who has been charged by the Monmouth County Prosecutor’s Office with, among other charges, theft by deception. As an employee of Merrill Lynch, he is alleged to have taken investors money, and converted the money to his own use without ever having made the investment.

More and more, however, I have seen home improvement contractors in New Jersey charged and indicted for the crime of theft by deception even when the case seems more like a civil “breach of contract” than a criminal theft.  Generally, a person is guilty of theft by deception “if he purposely obtains property of another” – you guessed it – “by deception” (NJSA 2C: 20-4). The problem is that the language is so broad New Jersey prosecutors often criminally indict breaches of contract by home improvement contractors where, historically, they were resolved in Civil Court.

I’ll give you an example of what I believe is a questionable application of the theft by deception statute that is all too often applied to a breach of a civil contract. A home improvement contractor may agree to build an addition on a house for 100,000 dollars. A contract is signed, money exchanges hands and the work begins. For whatever reason, the contractor fails to finish the work. Maybe he does 75,000 dollars worth of work and then stops. Maybe the home owner is not satisfied with his work and tells him to stop because his performance is sub-standard. You would expect that a civil suit would follow for breach of contract and it would end.

The problem for contractors is that when the home owner does not get quick results civilly, they often call their county prosecutor’s office in New Jersey demanding a criminal investigation. Often times, these investigations involve little more than the home owner providing paper work to the prosecutor and then testifying at grand jury.

We now have a civil lawsuit and a criminal case for the exact same breach of contract but where is the criminal intent? In order to prove theft by deception in New Jersey, the Prosecutor is going to have to prove beyond a reasonable doubt that the contractor purposely obtained money from the homeowner by deception when he received payment. In other words, at the time of the signing of the contract, the contractor would have to have the purpose to keep money without ever intending on performing the work. But, how can that be proven when a good percentage of the work is actually completed? In a few words – it cannot- and the cases should never get indicted in the first place.

If you have been charged with Theft by Deception in New Jersey call one of our lawyers at Clark, Clark & Noonan, LLC today at 732-303-7857 for a free consultation. We are former Prosecutors who have the experience and ability to exploit the weaknesses often associated with theft by deception cases.

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Categories: Theft and Property Crimes

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