ASSEMBLY, No. 617

STATE OF NEW JERSEY

214th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION

 


 

Sponsored by:

Assemblyman ERIK PETERSON

District 23 (Warren and Hunterdon)

 

 

 

 

SYNOPSIS

     Revises child pornography law.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act concerning child pornography and amending various parts of the statutory law.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2C:24-4 is amended to read as follows: 

     2C:24-4.  Endangering Welfare of Children. 

     a.     Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree. 

     b.    (1) As used in this subsection and subsection c. of this section

     "Child" means any person under 16 years of age. 

     “Distribute” means to sell, give, provide, lend, trade, mail, send, deliver, publish, circulate, disseminate, present, exhibit, display, make available or transfer, in any manner, including through the Internet, and it shall not be relevant that the distribution was not for compensation or any other benefit.

     "Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks. 

     “Intimate parts” shall have the meaning set forth in N.J.S.2C:14‑1. 

     "Prohibited sexual act" means

     (a)   Sexual intercourse; or

     (b)   Anal intercourse; or

     (c)   Masturbation; or

     (d)   Bestiality; or

     (e)   Sadism; or

     (f)    Masochism; or

     (g)   Fellatio; or

     (h)   Cunnilingus; or

     (i)    Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or

     (j)  Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1. 

     ["Reproduction"] Reproduce means to copy or duplicate, and includes, but is not limited to, copying or printing computer generated images or posting these images on the Internet

     (2)   (Deleted by amendment, P.L.2001, c.291). 

     (3)   A person commits a crime of the [second] first degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance.  [If the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.] 

     (4)   Any person who knowingly photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to produce, create, reproduce, or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.

     It shall be no defense to a prosecution for a violation of this paragraph that the defendant did not intend to distribute, advertise, offer or agree to offer the photograph, film, videotape, computer program or file, video game or other reproduction or reconstruction. 

     (5)   (a) Any person who knowingly possesses or receives for the purpose of [selling] distributing or who knowingly [sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes,] distributes [, circulates, disseminates, presents, exhibits], advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree. 

     (b)   Any person who knowingly possesses, [receive or knowingly] , receives or  views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the [fourth] third degree. 

     (6)   For the purposes of this subsection[, a] and subsection c. of this section:

     (a)   Any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts the face or any of the intimate parts of a child depicts a child;

     (b)   A person who is depicted as or presents the appearance of being under the age of 16 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 16[.] ;

     (c)   A person who is depicted as or presents the appearance of being an actual child in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be an actual child; and

     (d)   If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of 16, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 16, nor shall it be a defense that the actor believed that the child was 16 years of age or older, even if such a mistaken belief was reasonable.

     (e)   In any prosecution under this section, hearsay evidence may be admitted to prove the existence, identity, age or other personal identifying information of a child.  This evidence may be in the form of an affidavit, a certification, a public record or an official report by a public official, as defined in the Rules of Evidence, or a public official of a foreign jurisdiction.  This evidence shall be admissible and shall constitute a permissive inference as to the facts contained therein.  The State shall not be precluded from proving the existence, identity, age or other personal identifying information of a child by any other means.

     (7)   In a prosecution for a violation of this subsection or subsection c. of this section, a defendant who intends to offer as a defense that any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction was created or produced without using an actual person under the age of 16, or the face or any of the intimate parts of an actual person under the age of 16, or depicts the image of a person who is 16 years of age or older, shall serve notice of this intention on the prosecuting attorney in accordance with the Rules of Court.

     c.     (1) Any person who knowingly uses any device, including a computer, to produce, create or reproduce an image which appears to depict a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree if the depiction is obscene.

     It shall not be a defense to a prosecution for a violation of this paragraph that the defendant did not intend to distribute, advertise, offer or agree to offer the photograph, film, videotape, computer program or file, video game or other reproduction or reconstruction.

     (2)   (a) Any person who knowingly possesses or receives for the purpose of distributing or who knowingly distributes, advertises, offers or agrees to offer, through any means, including the Internet,
any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts an image which appears to be a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree if the depiction is obscene.

     (b)   Any person who knowingly possesses, views, or receives any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts an image which appears to be a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the third degree if the depiction is obscene.

     (3)   For purposes of this subsection, a depiction is obscene if it:

     (a)   epicts the prohibited sexual act in a patently offensive way;

     (b)   lacks serious literary, artistic, political or scientific value, when taken as a whole; and

     (c)   is a part of a work which, to the average person applying contemporary community standards, has a dominant theme, taken as a whole, which appeals to the prurient interest.

     If the depiction is obscene, the defendant shall be strictly liable and it shall not be a defense that the actor did not know that the depiction was obscene, nor shall it be a defense that the actor believed that the depiction was not obscene, even if such a mistaken belief was reasonable.

     (4)   For purposes of this subsection, “knowingly” means:

     (a)   Having knowledge of the character and content of any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts an image which appears to be a child described herein; or

     (b)   Having failed to exercise reasonable inspection which would disclose its character and content.

     d.    Sentencing.  If a person is convicted of a second or subsequent offense of engaging in sexual conduct which would impair or debauch the morals of a child in violation of subsection a. of this section, or a second or subsequent offense under subsections b. or c. of this section, the sentence imposed under this section for the second or subsequent offense shall include a fixed minimum sentence of one-third to one-half of the sentence imposed by the court, during which the defendant shall be ineligible for parole.  The court may not suspend or make any other non‑custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section.  For the purpose of this section, an offense is considered a second or subsequent offense if the actor has at any time been convicted under P.L.1993, c.291 (C.2C:13-6); N.J.S.2C:14‑2; subsection a. of N.J.S.2C:14‑3; N.J.S.2C:24-4; or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to
P.L.1993, c.291 (C.2C:13-6); N.J.S.2C:14‑2; subsection a. of N.J.S.2C:14‑3; or N.J.S.2C:24‑4.

(cf:  P.L.2001, c.291, s.1)

 

     2.    Section 2 of P.L.1994, c.133 (C.2C:7-2) is amended to read as follows: 

     2.    a. (1) A person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sex offense as defined in subsection b. of this section shall register as provided in subsections c. and d. of this section.

     (2)   A person who in another jurisdiction is required to register as a sex offender and (a) is enrolled on a full-time or part-time basis in any public or private educational institution in this State, including any secondary school, trade or professional institution, institution of higher education or other post-secondary school, or (b) is employed or carries on a vocation in this State, on either a full-time or a part-time basis, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year, shall register in this State as provided in subsections c. and d. of this section.

     (3)   A person who fails to register as required under this act shall be guilty of a crime of the third degree.

     b.    For the purposes of this act a sex offense shall include the following: 

     (1)   Aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1 or an attempt to commit any of these crimes if the court found that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior, regardless of the date of the commission of the offense or the date of conviction;

     (2)   A conviction, adjudication of delinquency, or acquittal by reason of insanity for aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (3) or (4) or subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (1) or subparagraph (a) of paragraph (2) of subsection c. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); criminal sexual contact pursuant to N.J.S.2C:14-3b. if the victim is a minor; kidnapping pursuant to N.J.S.2C:13-1, criminal restraint pursuant to N.J.S.2C:13-2, or false imprisonment pursuant to N.J.S.2C:13-3 if the victim is a minor and the offender is not the parent of the victim; knowingly promoting prostitution of a child pursuant to paragraph (3) or paragraph (4) of subsection b. of N.J.S.2C:34-1; or an attempt to commit any of these enumerated offenses if the conviction, adjudication of delinquency or acquittal by reason of insanity is entered on or after the effective date of this act or the offender is serving a sentence of incarceration, probation, parole or other form of community supervision as a result of the offense or is confined following acquittal by reason of insanity or as a result of civil commitment on the effective date of this act;

     (3)   A conviction, adjudication of delinquency or acquittal by reason of insanity for an offense similar to any offense enumerated in paragraph (2) or a sentence on the basis of criteria similar to the criteria set forth in paragraph (1) of this subsection entered or imposed under the laws of the United States, this State or another state.

     c.     A person required to register under the provisions of this act shall do so on forms to be provided by the designated registering agency as follows:

     (1)   A person who is required to register and who is under supervision in the community on probation, parole, furlough, work release, or a similar program, shall register at the time the person is placed under supervision or no later than 120 days after the effective date of this act, whichever is later, in accordance with procedures established by the Department of Corrections, the Department of Human Services, the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170) or the Administrative Office of the Courts, whichever is responsible for supervision;

     (2)   A person confined in a correctional or juvenile facility or involuntarily committed who is required to register shall register prior to release in accordance with procedures established by the Department of Corrections, the Department of Human Services or the Juvenile Justice Commission and, within 48 hours of release, shall also register with the chief law enforcement officer of the municipality in which the person resides or, if the municipality does not have a local police force, the Superintendent of State Police;

     (3)   A person moving to or returning to this State from another jurisdiction shall register with the chief law enforcement officer of the municipality in which the person will reside or, if the municipality does not have a local police force, the Superintendent of State Police within 120 days of the effective date of this act or 10 days of first residing in or returning to a municipality in this State, whichever is later;

     (4)   A person required to register on the basis of a conviction prior to the effective date who is not confined or under supervision on the effective date of this act shall register within 120 days of the effective date of this act with the chief law enforcement officer of the municipality in which the person will reside or, if the municipality does not have a local police force, the Superintendent of State Police;

     (5)   A person who in another jurisdiction is required to register as a sex offender and who is enrolled on a full-time or part-time basis in any public or private educational institution in this State, including any secondary school, trade or professional institution, institution of higher education or other post-secondary school shall, within ten days of commencing attendance at such educational institution, register with the chief law enforcement officer of the municipality in which the educational institution is located or, if the municipality does not have a local police force, the Superintendent of State Police;

     (6)   A person who in another jurisdiction is required to register as a sex offender and who is employed or carries on a vocation in this State, on either a full-time or a part-time basis, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year, shall, within ten days after commencing such employment or vocation, register with the chief law enforcement officer of the municipality in which the employer is located or where the vocation is carried on, as the case may be, or, if the municipality does not have a local police force, the Superintendent of State Police;

     (7)   In addition to any other registration requirements set forth in this section, a person required to register under this act who is enrolled at, employed by or carries on a vocation at an institution of higher education or other post-secondary school in this State shall, within ten days after commencing such attendance, employment or vocation, register with the law enforcement unit of the educational institution, if the institution has such a unit.

     d.    (1) Upon a change of address, a person shall notify the law enforcement agency with which the person is registered and shall re-register with the appropriate law enforcement agency no less than 10 days before he intends to first reside at his new address.  Upon a change of employment or school enrollment status, a person shall notify the appropriate law enforcement agency no later than five days after any such change.  A person who fails to notify the appropriate law enforcement agency of a change of address or status in accordance with this subsection is guilty of a crime of the fourth degree.

     (2) A person required to register under this act shall provide the appropriate law enforcement agency with information as to whether the person has routine access to or use of a computer or any other device with Internet capability.  A person who fails to notify the appropriate law enforcement agency of such information or of a change in the person’s access to or use of a computer or other device with Internet capability or who provides false information concerning the person’s access to or use of a computer or any other device with Internet capability is guilty of a crime of the fourth degree.

     e.     A person required to register under paragraph (1) of subsection b. of this section or under paragraph (3) of subsection b. due to a sentence imposed on the basis of criteria similar to the criteria set forth in paragraph (1) of subsection b. shall verify his address with the appropriate law enforcement agency every 90 days in a manner prescribed by the Attorney General.  A person required to register under paragraph (2) of subsection b. of this section or under paragraph (3) of subsection b. on the basis of a conviction for an offense similar to an offense enumerated in paragraph (2) of subsection b. shall verify his address annually in a manner prescribed by the Attorney General.  One year after the effective date of this act, the Attorney General shall review, evaluate and, if warranted, modify pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the verification requirement.  Any person who knowingly provides false information concerning his place of residence or who fails to verify his address with the appropriate law enforcement agency or other entity, as prescribed by the Attorney General in accordance with this subsection, is guilty of a crime of the fourth degree.

     f.     Except as provided in subsection g. of this section, a person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.

     g.     A person required to register under this section who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for more than one sex offense as defined in subsection b. of this section or who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for aggravated sexual assault pursuant to subsection a. of N.J.S.2C:14-2 or sexual assault pursuant to paragraph (1) of subsection c. of N.J.S.2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation.

(cf:  P.L.2007, c.219, s.2)

 

     3.    N.J.S.2C:14-6 is amended to read as follows:

     2C:14-6.  If a person is convicted of a second or subsequent offense under [sections] N.J.S.2C:14-2 or [2C:14-3a.] subsection a. of N.J.S.2C:14-3, the sentence imposed under those sections for the second or subsequent offense shall[, unless the person is sentenced pursuant to the provisions of 2C:43-7,] include a fixed minimum sentence of not less than 5 years, during which the defendant shall not be eligible for parole.  The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section.  For the  purpose of this section, an offense is considered a second or subsequent offense[,] if the actor has at any time been convicted under [sections] P.L.1993, c.291 (C.2C:13-6); N.J.S.2C:14-2 [or 2C:14-3a.]; subsection a. of N.J.S.2C:14-3; N.J.S.2C:24‑4; or under any similar statute of the United States, this [state] State, or any  other state for an offense that is substantially equivalent to [sections] P.L.1993, c.291 (C.2C:13-6); N.J.S.2C:14-2 [or 2C:14-3a.]; subsection a. of N.J.S.2C:14-3; or N.J.S.2C:24‑4.

(cf:  N.J.S.2C:14-6)

 

     4.    N.J.S.2C:41-1  is amended to read as follows: 

     2C:41-1.  Definitions.

     For purposes of this section and N.J.S.2C:41-2 through N.J.S.2C:41-6:

     a.     "Racketeering activity" means (1) any of the following crimes which are crimes under the laws of New Jersey or are equivalent crimes under the laws of any other jurisdiction:

     (a)   murder

     (b)   kidnapping

     (c)   gambling

     (d)   promoting prostitution

     (e)   obscenity

     (f)    robbery

     (g)   bribery

     (h)   extortion

     (i)    criminal usury

     (j)    violations of Title 33 of the Revised Statutes

     (k)   violations of Title 54A of the New Jersey Statutes and Title 54 of the Revised Statutes

     (l)    arson

     (m)  burglary

     (n)   theft and all crimes defined in chapter 20 of Title 2C of the New Jersey Statutes

     (o)   forgery and fraudulent practices and all crimes defined in chapter 21 of Title 2C of the New Jersey Statutes

     (p)   fraud in the offering, sale or purchase of securities

     (q)   alteration of motor vehicle identification numbers

     (r)    unlawful manufacture, purchase, use or transfer of firearms

     (s)   unlawful possession or use of destructive devices or explosives

     (t)    violation of sections 112 through 116 inclusive of the "Casino Control Act," P.L.1977, c.110 (C.5:12-112 through 5:12-116)

     (u)   violation of N.J.S.2C:35-4, N.J.S.2C:35-5 or N.J.S.2C:35-6 and all crimes involving illegal distribution of a controlled dangerous substance or controlled substance analog, except possession of less than one ounce of marijuana

     (v)   violation of subsection b. of N.J.S.2C:24-4 except for subparagraph (b) of paragraph (5) of subsection b.

     (w)  violation of section 1 of P.L.1995, c.405 (C.2C:39-16), leader of firearms trafficking network

     (x)   violation of section 1 of P.L.1983, c.229 (C.2C:39-14), weapons training for illegal activities

     (y)   violation of section 2 of P.L.2002, c.26 (C.2C:38-2), terrorism[.]

     (z)   violation of section 1 of P.L.2005,c.77 (C.2C:13-8), human trafficking[.]

     (aa) violation of subsection c. of N.J.S.2C:24‑4 except for subparagraph (b) of paragraph (2) of subsection c.

     (2)   any conduct defined as "racketeering activity" under Title 18, U.S.C.s.1961(1)(A), (B) and (D).

     b.    "Person" includes any individual or entity or enterprise as defined herein holding or capable of holding a legal or beneficial interest in property.

     c.     "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business or charitable trust, association, or other legal entity, any union or group of individuals associated in fact although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities.

     d.    "Pattern of racketeering activity" requires

     (1)   Engaging in at least two incidents of racketeering conduct one of which shall have occurred after the effective date of this act and the last of which shall have occurred within 10 years (excluding any period of imprisonment) after a prior incident of racketeering activity; and

     (2)   A showing that the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants or victims or methods of commission or are otherwise interrelated by distinguishing characteristics and are not isolated incidents.

     e.     "Unlawful debt" means a debt

     (1)   Which was incurred or contracted in gambling activity which was in violation of the law of the United States, a state or political subdivision thereof; or

     (2)   Which is unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury.

     f.     "Documentary material" includes any book, paper, document, writing, drawing, graph, chart, photograph, phonorecord, magnetic or recording or video tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into useable form or other tangible item.

     g.     "Attorney General" includes the Attorney General of New Jersey, his assistants and deputies.  The term shall also include a county prosecutor or his designated assistant prosecutor if a county prosecutor is expressly authorized in writing by the Attorney General to carry out the powers conferred on the Attorney General by this chapter.

     h.     "Trade or commerce" shall include all economic activity involving or relating to any commodity or service.

(cf:  P.L.2005, c.77, s.3)

 

     5.    N.J.S.2C:44-1 is amended to read as follows:

     2C:44-1. Criteria for Withholding or Imposing Sentence of Imprisonment. a. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:

     (1)   The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;

     (2)   The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;

     (3)   The risk that the defendant will commit another offense;

     (4)   A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;

     (5)   There is a substantial likelihood that the defendant is involved in organized criminal activity;

     (6)   The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;

     (7)   The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;

     (8)   The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person's status as a sports official, coach or manager;

     (9)   The need for deterring the defendant and others from violating the law;

     (10) The offense involved fraudulent or deceptive practices committed against any department or division of State government;

     (11) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;

     (12) The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and

     (13) The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle.

     b.    In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances:

     (1)   The defendant's conduct neither caused nor threatened serious harm;

     (2)   The defendant did not contemplate that his conduct would cause or threaten serious harm;

     (3)   The defendant acted under a strong provocation;

     (4)   There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;

     (5)   The victim of the defendant's conduct induced or facilitated its commission;

     (6)   The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;

     (7)   The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;

     (8)   The defendant's conduct was the result of circumstances unlikely to recur;

     (9)   The character and attitude of the defendant indicate that he is unlikely to commit another offense;

     (10) The defendant is particularly likely to respond affirmatively to probationary treatment;

     (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents;

     (12) The willingness of the defendant to cooperate with law enforcement authorities;

     (13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.

     c.     (1) A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.

     (2)   When imposing a sentence of imprisonment the court shall consider the defendant's eligibility for release under the law governing parole, including time credits awarded pursuant to Title 30 of the Revised Statutes, in determining the appropriate term of imprisonment.

     d.    Presumption of imprisonment.  The court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. Notwithstanding the provisions of subsection e. of this section, the court shall deal with a person who has been convicted of theft of a motor vehicle or of the unlawful taking of a motor vehicle and who has previously been convicted of either offense by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.

     e.     The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public under the criteria set forth in subsection a., except that this subsection shall not apply if the person is convicted of any of the following crimes of the third degree: theft of a motor vehicle; unlawful taking of a motor vehicle; eluding; if the person is convicted of a crime of the third degree constituting use of a false government  document in violation of subsection c. of section 1 of P.L.1983, c.565 (C.2C:21-2.1); if the person is convicted of a crime of the third degree constituting distribution, manufacture or possession of an item containing personal identifying  information in violation of subsection b. of section 6 of P.L.2003, c.184 (C.2C:21-17.3); or if the person is convicted of a crime of the third or fourth degree constituting bias intimidation in violation of N.J.S.2C:16-1; or if the person is convicted of a crime of the third  degree under  section  2 of P.L.1997, c.111 (C.2C:12-1.1).

     f.     Presumptive Sentences. (1) Except for the crime of murder, unless the preponderance of aggravating or mitigating factors, as set forth in subsections a. and b., weighs in favor of a higher or lower term within the limits provided in N.J.S.2C:43-6, when a court determines that a sentence of imprisonment is warranted, it shall impose sentence as follows:

     (a)   To a term of 20 years for aggravated manslaughter or kidnapping pursuant to paragraph (1) of subsection c. of N.J.S.2C:13-1 when the offense constitutes a crime of the first degree;

     (b)   Except as provided in paragraph (a) of this subsection to a term of 15 years for a crime of the first degree;

     (c)   To a term of seven years for a crime of the second degree;

     (d)   To a term of four years for a crime of the third degree; and

     (e)   To a term of nine months for a crime of the fourth degree.

     In imposing a minimum term pursuant to 2C:43-6b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

     Unless the preponderance of mitigating factors set forth in subsection b. weighs in favor of a lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(1) shall have a presumptive term of life imprisonment.  Unless the preponderance of aggravating and mitigating factors set forth in subsections a. and b. weighs in favor of a higher or lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(2) shall have a presumptive term of 50 years' imprisonment; sentences imposed pursuant to 2C:43-7a.(3) shall have a presumptive term of 15 years' imprisonment; and sentences imposed pursuant to 2C:43-7a.(4) shall have a presumptive term of seven years' imprisonment.

     In imposing a minimum term pursuant to 2C:43-7b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

     (2) In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.  If the court does impose sentence pursuant to this paragraph, or if the court imposes a noncustodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.

     g.     Imposition of Noncustodial Sentences in Certain Cases.  If the court, in considering the aggravating factors set forth in subsection a., finds the aggravating factor in paragraph a.(2) or a.(12) and does not impose a custodial sentence, the court shall specifically place on the record the mitigating factors which justify the imposition of a noncustodial sentence.

     h.     Except as provided in section 2 of P.L.1993, c.123 (C.2C:43-11), the presumption of imprisonment as provided in subsection d. of this section shall not preclude the admission of a person to the Intensive Supervision Program, established pursuant to the Rules Governing the Courts of the State of New Jersey.

(cf:  P.L. 2007, c.83, s.3.)

 

     6.    N.J.S.2C:44-6 is amended to read as follows: 

     2C:44-6.  Procedure on Sentence; Presentence Investigation and Report. 

     a.     The court shall not impose sentence without first ordering a presentence investigation of the defendant and according due consideration to a written report of such investigation when required by the Rules of Court.  The court may order a presentence investigation in any other case. 

     b.    The presentence investigation shall include an analysis of the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, family situation, financial resources, including whether or not the defendant is an enrollee or covered person under a health insurance contract, policy or plan, debts, including any amount owed for a fine, assessment or restitution ordered in accordance with the provisions of Title 2C, employment history, personal habits, the disposition of any charge made against any codefendants, the defendant's history of civil commitment, any disposition which arose out of charges suspended pursuant to N.J.S.2C:4-6 including the records of the disposition of those charges and any acquittal by reason of insanity pursuant to N.J.S.2C:4-1, and any other matters that the probation officer deems relevant or the court directs to be included.  The defendant shall disclose any information concerning any history of civil commitment.  The report shall also include a medical history of the defendant and a complete psychological evaluation of the defendant in any case in which the defendant is being sentenced for a first or second degree crime involving violence and: 

     (1)   the defendant has a prior acquittal by reason of insanity pursuant to N.J.S.2C:4-1 or had charges suspended pursuant to N.J.S.2C:4-6; or

     (2)   the defendant has a prior conviction for murder pursuant to N.J.S.2C:11-3, aggravated sexual assault or sexual assault pursuant to N.J.S.2C:14-2, kidnapping pursuant to N.J.S.2C:13-1, endangering the welfare of a child which would constitute a crime of the first or second degree pursuant to N.J.S.2C:24-4, or stalking which would constitute a crime of the third degree pursuant to P.L.1992, c.209 (C.2C:12-10); or


     (3)   the defendant has a prior diagnosis of psychosis. 

     The court, in its discretion and considering all the appropriate circumstances, may waive the medical history and psychological examination in any case in which a term of imprisonment including a period of parole ineligibility is imposed.  In any case involving a conviction of N.J.S.2C:24-4, endangering the welfare of a child; N.J.S.2C:18-3, criminal trespass, where the trespass was committed in a school building or on school property; section 1 of P.L.1993, c.291 (C.2C:13-6), attempting to lure or entice a child with purpose to commit a criminal offense; section 1 of P.L.1992, c.209 (C.2C:12-10), stalking; or N.J.S.2C:13-1, kidnapping, where the victim of the offense is a child under the age of 18, the investigation shall include a report on the defendant's mental condition. 

     The presentence report shall also include a report on any compensation paid by the Victims of Crime Compensation Board as a result of the commission of the offense and, in any case where the victim chooses to provide one, a statement by the victim of the offense for which the defendant is being sentenced.  The statement may include the nature and extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss to include loss of earnings or ability to work suffered by the victim and the effect of the crime upon the victim's family.  The probation department shall notify the victim or nearest relative of a homicide victim of his right to make a statement for inclusion in the presentence report if the victim or relative so desires.  Any such statement shall be made within 20 days of notification by the probation department. 

     The presentence report shall specifically include an assessment of the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance. 

     c.     If, after the presentence investigation, the court desires additional information concerning an offender convicted of an offense before imposing sentence, it may order any additional psychological or medical testing of the defendant. 

     d.    Disclosure of any presentence investigation report or psychiatric examination report shall be in accordance with law and the Rules of Court, except that information concerning the defendant's financial resources shall be made available upon request to the Victims of Crime Compensation Board or to any officer authorized under the provisions of section 3 of P.L.1979, c.396 (C.2C:46-4) to collect payment on an assessment, restitution or fine and that information concerning the defendant's coverage under any health insurance contract, policy or plan shall be made available, as appropriate to the Commissioner of the Department of Corrections and to the chief administrative officer of a county jail in accordance with the provisions of P.L.1995, c.254 (C.30:7E-1 et al.). 

     e.     The court shall not impose a sentence of imprisonment for an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed.  The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue. 

     f.     (Deleted by amendment, P.L.1986, c.85). 

(cf:  P.L.1997, c.216, s.2)

 

     7.    N.J.S.2C:47-1 is amended to read as follows: 

     2C:47-1.  Referral to Adult Diagnostic and Treatment Center;  Commitment; Examination. 

     Whenever a person is convicted of the offense of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1, luring or enticing pursuant to P.L.1993, c.291 (C.2C:13-6), endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4, endangering the welfare of a child pursuant to paragraph (3), paragraph (4) or subparagraph (a) of paragraph (5) of subsection b. or paragraph (1) or subparagraph (a) of paragraph (2) of subsection c. of N.J.S.2C:24-4, or an attempt to commit any such crime, the judge shall order the Department of Corrections to complete a psychological examination of the offender, except the judge shall not require a psychological examination if the offender is to be sentenced to a term of life imprisonment without eligibility for parole.  The examination shall include a determination of whether the offender's conduct was characterized by a pattern of repetitive, compulsive behavior and, if it was, a further determination of the offender's amenability to sex offender treatment and willingness to participate in such treatment.  The court's order shall contain a determination of the offender's legal settlement in accordance with subdivision D of article 3 of chapter 4 of Title 30 of the Revised Statutes. 

(cf:  P.L.1998, c.72, s.1)

 

     8.    N.J.S.2C:52-2 is amended to read as follows: 

     2C:52-2.  Indictable Offenses.  a.  In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in [section] N.J.S.2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged. 

     Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought. 

     b.    Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged. 

     Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: [Section] N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in [section] N.J.S. 2C:11-5; [section] N.J.S.2C:13-1 (Kidnapping); [section] P.L.1993, c.291 (C.2C:13-6) (Luring or Enticing); [section] N.J.S. 2C:14-2 (Aggravated Sexual Assault); [section 2C:14-3a] subsection a. of N.J.S.2C:14-3 (Aggravated Criminal Sexual Contact); if the victim is a minor, [section 2C:14-3b] subsection b. of N.J.S.2C:14-3 (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, [section] N.J.S.2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); [section 2C:24-4a] subsection a. of N.J.S.2C:24-4; (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); [section 2C:24-4b(4)] paragraphs (3) or (4) of subsection b. or paragraph (1) of subsection c. of N.J.S.2C:24-4 (Endangering the welfare of a child); [section] N.J.S.2C:28-1 (Perjury); [section] N.J.S.2C:28-2 (False Swearing) and conspiracies or attempts to commit such crimes. 

     Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment. 

     c.     In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to: 

     (1)   Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or

     (2)   Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less. 

     d.    In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto. 

(cf:  P.L.1994, c.133, s.6)

 

     9.    Section 1 of P.L.1998, c.68 (C.30:4-91.8) is amended to read as follows: 

     1.    a.  Whenever an inmate who has been convicted of murder; manslaughter; vehicular homicide; aggravated sexual assault; sexual assault; aggravated assault; aggravated criminal sexual contact; robbery; kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (3) or paragraph (4) of subsection b. or paragraph (1) of subsection c. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); or any crime of the first or second degree involving serious bodily injury is subject to a review by an Institutional Classification Committee which may result in participation in any residential community release program, the Department of Corrections shall provide written notice of that review in accordance with the provisions of subsection b. of this section. 

     b.    (1) Upon the scheduling of a review subject to the notification requirement of this section, the Department of Corrections shall so notify the prosecutor of the county in which the inmate was convicted or, if the matter was prosecuted by the Attorney General, the Attorney General. 

     Upon receipt of such notice, the county prosecutor or Attorney General, as the case may be, shall have 10 working days in which to submit comments.  If the county prosecutor or Attorney General does not provide comments within those 10 working days, the Department of Corrections may presume that the prosecutor or Attorney General, as the case may be, does not wish to submit any comments on the matter.  The notice shall include the inmate's name, identifying factors and offense history. 

     (2)   Immediately upon receipt of such notice, the county prosecutor or Attorney General in accordance with the provisions of paragraph (1) of this subsection shall notify the Office of Victim and Witness Advocacy of the county in which the inmate was convicted and that office shall use any reasonable means available to it to give notice within 10 working days to the victim of the crime or the victim's nearest relative if the crime resulted in death. 

     The notice required under this paragraph shall be given only if a request for such notification has been made by the victim or the victim's nearest relative, as the case may be, to the county prosecutor or Attorney General, as the case may be, at the time the inmate was sentenced. 

     Upon receipt of such notice, the victim or the victim's nearest relative, as the case may be, shall have 10 working days in which to submit comments.  If the victim or the victim's nearest relative, as the case may be, does not provide comments within those 10 working days, the Department of Corrections may presume that the victim or victim's nearest relative, as the case may be, does not wish to submit any comments on the matter. 

     (3)   Any comments provided pursuant to paragraph (1) or (2) of this subsection shall be in writing and shall be delivered to the Department of Corrections. 

     Comments submitted pursuant to this subsection shall be deemed confidential and shall not be disclosed to any person who is not authorized to receive or review them. 

     c.     Whenever the Department of Corrections receives comments from a prosecutor or the Attorney General, as the case may be, or from a victim or a victim's nearest relative, as the case may be, concerning the participation of an inmate in accordance with this act, it shall give all due consideration to the information contained in those comments when considering the participation of that inmate. 

     d.    The Commissioner of Corrections, in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), may promulgate rules and regulations to effectuate the provisions of this act.

(cf:  P.L.1998, c.68, s.1)

 

     10.  Section 1 of P.L.1994, c.135 (C.30:4-123.53a) is amended to read as follows: 

     1.    a.  As used in this act:  "Prosecutor" means the county prosecutor of the county in which the defendant was convicted unless the matter was prosecuted by the Attorney General, in which case "prosecutor" means the Attorney General. 

     "Office of Victim Witness Advocacy" means the Office of Victim Witness Advocacy of the county in which the defendant was convicted. 

     b.    Notwithstanding any other provision of law to the contrary, the State shall provide written notice to the prosecutor of the anticipated release from incarceration in a county or State penal institution or the Adult Diagnostic and Treatment Center of a person convicted of murder; manslaughter; aggravated sexual assault; sexual assault; aggravated assault; aggravated criminal sexual contact; kidnaping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (3) or paragraph (4) of subsection b. or paragraph (1) of subsection c. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); any other offense involving serious bodily injury or an attempt to commit any of the aforementioned offenses.  In cases involving a release on parole, the State Parole Board shall provide the notice required by this subsection.  In all other cases, including but not limited to release upon expiration of sentence or release from incarceration due to a change in sentence, the Department of Corrections shall provide the notice required by this subsection. 

     c.     Notwithstanding any other provision of law to the contrary, the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170) shall provide written notice to the prosecutor of the anticipated release from incarceration of a juvenile adjudicated delinquent on the basis of an offense which, if committed by an adult, would constitute murder; manslaughter; aggravated sexual assault; sexual assault; aggravated assault; aggravated criminal sexual contact; kidnaping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to  paragraph (3) or paragraph (4) of subsection b. or paragraph (1) of subsection c. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); any other offense involving serious bodily injury or an attempt to commit any of the aforementioned offenses. 

     d.    If available, the notice shall be provided to the prosecutor 90 days before the inmate's anticipated release; provided however, the notice shall be provided at least 30 days before release.  The notice shall include the person's name, identifying factors, offense history, and anticipated future residence.  The prosecutor shall notify the Office of Victim and Witness Advocacy and that office shall use any reasonable means available to them to notify the victim of the anticipated release unless the victim has requested not to be notified. 

     e.     Upon receipt of notice, the prosecutor shall provide notice to the law enforcement agency responsible for the municipality where the inmate will reside, the municipality in which any victim resides, and such other State and local law enforcement agencies as appropriate for public safety.

(cf:  P.L.2001, c.79, s.8)

 

     11.  Section 10 of P.L.1979, c.441 (C.30:4-123.54) is amended to read as follows: 

     10.  a.  At least 120 days but not more than 180 days prior to the parole eligibility date of each adult inmate, a report concerning the inmate shall be filed with the appropriate board panel, by the staff members designated by the superintendent or other chief executive officer of the institution in which the inmate is held. 

     b.    (1) The report filed pursuant to subsection a. shall contain preincarceration records of the inmate, including any history of civil commitment, any disposition which arose out of any charges suspended pursuant to N.J.S.2C:4-6 including records of the disposition of those charges and any acquittals by reason of insanity pursuant to N.J.S.2C:4-1, state the conduct of the inmate during the current period of confinement, include a complete report on the inmate's social and physical condition, include an investigation by the Division of Parole of the inmate's parole plans, and present information bearing upon the likelihood that the inmate will commit a crime under the laws of this State if released on parole.  The report shall also include a complete psychological evaluation of the inmate in any case in which the inmate was convicted of a first or second degree crime involving violence and: 

     (a)   the inmate has a prior acquittal by reason of insanity pursuant to N.J.S.2C:4-1 or had charges suspended pursuant to N.J.S.2C:4-6; or

     (b)   the inmate has a prior conviction for murder pursuant to N.J.S.2C:11-3, aggravated sexual assault or sexual assault pursuant to N.J.S.2C:14-2, kidnapping pursuant to N.J.S.2C:13-1, endangering the welfare of a child which would constitute a crime of the first or second degree pursuant to N.J.S.2C:24-4, or stalking which would constitute a crime of the third degree pursuant to P.L.1992, c.209 (C.2C:12-10); or

     (c)   the inmate has a prior diagnosis of psychosis. 

     The inmate shall disclose any information concerning any history of civil commitment. 

     The preincarceration records of the inmate contained in the report shall include any psychological reports prepared in connection with any court proceedings. 

     (2)   At the time of sentencing, the prosecutor shall notify any victim injured as a result of a crime of the first or second degree or the nearest relative of a murder victim of the opportunity to present a written or videotaped statement for the parole report to be considered at the parole hearing or to testify to the parole board concerning his harm at the time of the parole hearing.  Each victim or relative shall be responsible for notifying the board of his intention to submit such a statement and to provide an appropriate mailing address. 

     The report may include a written or videotaped statement concerning the continuing nature and extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss of earnings or ability to work suffered by the victim and the continuing effect of the crime upon the victim's family.  At the time public notice is given that an inmate is being considered for parole pursuant to this section, the board shall also notify any victim or nearest relative who has previously contacted the board of the availability to provide a written or videotaped statement for inclusion in the parole report or to present testimony at the parole hearing. 

     The board shall notify such person at his last known mailing address. 

     c.     A copy of the report filed pursuant to subsection a. of this section, excepting those documents which have been classified as confidential pursuant to rules and regulations of the board or the Department of Corrections, shall be served on the inmate at the time it is filed with the board panel.  The inmate may file with the board panel a written statement regarding the report, but shall do so within 105 days prior to the primary parole eligibility date. 

     d.    Upon receipt of the public notice pursuant to section 1 of P.L.1979, c.441 (C.30:4-123.45), a county prosecutor may request from the parole board a copy of the report on any adult inmate prepared pursuant to subsection a. of this section, which shall be expeditiously forwarded to the county prosecutor by the parole board by mail, courier, or other means of delivery.  Upon receipt of the report, the prosecutor has 10 working days to review the report and notify the parole board of the prosecutor's comments, if any, or notify the parole board of the prosecutor's intent to provide comments.  If the county prosecutor does not provide comments or notify the parole board of the prosecutor's intent to provide comments within the 10 working days, the parole board may presume that the prosecutor does not wish to provide comments and may proceed with the parole consideration.  Any comments provided by a county prosecutor shall be delivered to the parole board by the same method by which the county prosecutor received the report.  The confidentiality of the contents in a report which are classified as confidential shall be maintained and shall not be disclosed to any person who is not authorized to receive or review a copy of the report containing the confidential information. 

     e.     Any provision of this section to the contrary notwithstanding, the board shall by rule or regulation modify the scope of the required reports and time periods for rendering such reports with reference to county penal institutions. 

     f.     Notwithstanding any provision of this section, the board may modify the time periods for submitting the reports required pursuant to this section in processing an inmate whose parole eligibility date is accelerated pursuant to section 11 of P.L.1979, c.441 (C.30:4-123.55).

(cf:  P.L.2001, c.141, s.3)

 

     12.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill revises the State’s laws governing child pornography. 

     The bill modifies subsection b. of N.J.S.2C:24-4, concerning “real” child pornography to include:

     (1)   upgrading to a first degree crime for all persons, not just parents and guardians, causing or permitting a child to engage in or simulation of a prohibited sexual act knowing that the act would be photographed or reproduced;

     (2)   explicitly stating that an intent to distribute, advertise, offer or agree to offer is not an element of creating or reproducing child pornography and clarifying that the elements of this offense include producing, creating, copying or duplicating images of child pornography, or posting those images on the Internet;

     (3)   clarifying that possessing child pornography for the purpose of distributing it is a second degree crime and streamlining the definition of “distribute”;

     (4)   upgrading possession of child pornography to a crime of the third degree; and

     (5)   establishing a rebuttable presumption that a person appearing to be a child in a photo, video, or computer file, is in fact an actual child;

     (6)   requiring defendants who intend to defend a charge of child pornography by claiming that it was created without using an actual child, or the face or any of the intimate parts of an actual child, or depicts the image of a person who is not a child, to notify the prosecutor of that claim in accordance with the Rules of Court; and

     (7)   allowing the admissibility of hearsay evidence to be used to establish the existence, identity and age of an actual child depicted in child pornography. 

     The bill also adds a new subsection c. to N.J.S.2C:24-4 to establish the crime of “virtual” child pornography, the provisions of which parallel the provisions of subsection b. concerning “real” child pornography.  This new subsection:

     (1)   makes it a crime of the second degree to use any device, including a computer, to produce, create, or reproduce an image which appears to depict a child in a obscene prohibited sexual act or in a simulation of such an act;  

     (2)   makes it a crime of the second degree to knowingly distribute obscene virtual child pornography;

     (3)   makes it a crime of the third degree to knowingly possess obscene virtual child pornography; 

     (4)   defines an “obscene” depiction to be one in which:  a sexual act is patently offensive; lacks serious literary, artistic, political or scientific value when taken as a whole; and is part of a work which, taken as a whole in light of contemporary community standards, appeals to the prurient interest; and

     (5)   specifies that when virtual child pornography is obscene, the defendant is strictly liable;

     Other provisions of the bill:  require defendants to be reviewed for referral to the Adult Diagnostic and Treatment Center if convicted of certain real and virtual child pornography crimes; prohibit expungement of criminal records; provide for notification to the prosecuting agency and victim when a defendant is placed in a community release program or released from incarceration; and require certain repeat offender’s presentence and parole eligibility report to include a complete psychological evaluation for repeat offenders.  The bill also eliminates the presumption of nonincarceration, normally applicable to third degree crimes, for the crime of possessing real or virtual child pornography. 

     The bill includes a fixed mandatory minimum term of imprisonment for certain recidivists who violate N.J.S.2C:24-4.  Defendants convicted of engaging in sexual conduct which would impair or debauch the morals of a child in violation of subsection a. of N.J.S.2C:24‑4 or of child pornography crimes under subsection b. or c. of N.J.S.2C:24-4 must be sentenced to prison and serve one‑third to one-half of their sentences before being eligible for parole if they have previously been convicted of other sex crimes including luring or enticing a child, sexual assault, aggravated criminal sexual contact, or child endangerment.  The bill also makes a prior conviction under N.J.S.2C:24-4 the basis for a mandatory minimum term of imprisonment pursuant to N.J.S.2C:14-6, and provides that the minimum term must be imposed regardless of whether the defendant is sentenced to an extended term of imprisonment.

     Finally, the bill amends various other statutes to ensure that virtual child pornographers are subject to the same penalties as real child pornographers.  Thus, wherever a statute specifically refers to a provision of subsection b. of N.J.S.2C:24-4, this bill adds subsection c. to the statute.