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socrateaser
socrateaser, Lawyer
Category: Criminal Law
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Experience:  Retired (mostly)
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A deceptive business practice is committed when the defendant

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"A deceptive business practice is committed when the defendant intentionally, knowingly, or recklessly fails to deliver property or services that he has a duty to deliver. It is not necessary to prove that the defendant intended to steal the consumer’s money at the time of the initial sale. It is the “failure to deliver” that constitutes the crime. Criminal intent can attach before the defendant has a duty to deliver or at the time he has a duty to deliver." Is this true under New Jersey law? ($127,500 deposit taken by new home builder - builder refused to proceed on house, ultimately sold to another person for more money and kept our deposit - we got nothing). If so, and a prosecutor decides not to prosecute a case because the surrounding business practices appear to be legitamite on the face (contractor has other civil suits, but no other criminal charges) does a contractor get immunity because of the surrounding circumstances that appear to be legit even if a crime took place?

If so, and a prosecutor decides not to prosecute a case because the surrounding business practices appear to be legitamite on the face (contractor has other civil suits, but no other criminal charges) does a contractor get immunity because of the surrounding circumstances that appear to be legit even if a crime took place?

 

A: Immunity: no. Not really a free pass, either.

 

The situation is typical of white collar crime. The local prosecutor must prove a criminal claim beyond all reasonable doubt. Frequently, the case is sufficiently complex such that the prosecutor doubts that 12 jurors will understand what took place sufficient to find guilt beyond all reasonable doubt, so the prosecutor will "nolle prosequi" (not prosecute). This doesn't mean that the prosecutor may not file charges in the future (he has 5 years from the date of the commission of the crime).

 

What it means is that the prosecutor hopes that a plaintiff will file a civil case and attempt to prove the fraud, which requires clear and convincing evidence. If that occurs, then the prosecutor can use the judgment and evidence discovered in the civil case to prosecute the defendant criminally, and suddenly, the cost of prosecution goes down, thanks to the free info obtained in the civil action, and the likelihoold of a conviction increases.

 

It's not fair -- in fact it's a disgusting practice. But, it happens every day in every county and federal jurisdiction, because the government simply doesn't have sufficient financial resources to prosecute everyone, and the bulk of resources are dedicated to prosecute violent crimes.

 

Hope this helps.

 

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