ASSEMBLY, No. 2249

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 11, 2010

 


 

Sponsored by:

Assemblywoman  JOAN M. VOSS

District 38 (Bergen)

Assemblyman  THOMAS P. GIBLIN

District 34 (Essex and Passaic)

 

 

 

 

SYNOPSIS

     Increases certain sentences and imposes bail restrictions on persons who violate domestic violence restraining orders under certain circumstances; authorizes the court to order evaluation and treatment.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning domestic violence and supplementing and amending various parts of the statutory law.

 

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

 

     1.    Section 1 of P.L.1994, c.144  (C.2A:162-12) is amended to read as follows:

     1.    a.  As used in this section:

     “Crime with bail restrictions” means a crime of the first or second degree charged under any of the following sections:

     (1)   Murder 2C:11-3.

     (2)   Manslaughter 2C:11-4.

     (3) Kidnapping 2C:13-1.

     (4) Sexual Assault 2C:14-2.

     (5) Robbery 2C:15-1.

     (6) Carjacking P.L.1993, c.221, s.1 (C.2C:15-2).

     (7) Arson and Related Offenses 2C:17-1.

     (8) Causing or Risking Widespread Injury or Damage 2C:17-2.

     (9) Burglary 2C:18-2.         

     (10) Theft by Extortion 2C:20-5.

     (11) Endangering the Welfare of Children 2C:24-4. 

     (12) Resisting Arrest; Eluding Officer 2C:29-2.

     (13) Escape 2C:29-5.

     (14) Corrupting or Influencing a Jury 2C:29-8.

     (15) Possession of Weapons for Unlawful Purposes 2C:39-4.

     (16) Weapons Training for Illegal Activities P.L.1983, c.229, s.1 (C.2C:39-14).

     (17) Soliciting or Recruiting Gang Members P.L.1999, c.160, s.1 (C.2C:33-28).

     “Crime with bail restrictions” also includes any first or second degree drug-related crimes under chapter 35 of Title 2C of the New Jersey Statutes and any first or second degree racketeering crimes under chapter 41 of Title 2C of the New Jersey Statutes.  “Crime with bail restrictions” also includes any crime or offense involving  domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19), where the defendant was subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.), and is charged with a crime committed against a person protected under that order.

     b.    Subject to the provisions of subsection c. of this section, a person charged with a crime with bail restrictions may post the required amount of bail only in the form of:

     (1)   Full cash;

     (2)   A surety bond executed by a corporation authorized under chapter 31 of Title 17 of the Revised Statutes; or

     (3)   A bail bond secured by real property situated in this State with an unencumbered equity equal to the amount of bail undertaken plus $20,000.

     c.     There shall be a presumption in favor of the court designating the posting of full United States currency cash bail to the exclusion of other forms of bail when a defendant is charged with an offense as set forth in subsection a. of this section and:

     (1)   has two other indictable cases pending at the time of the arrest; or

     (2)   has two prior convictions for a first or second degree crime or for a violation of section 1 of P.L.1987, c.101 (C.2C:35-7) or any combination thereof; or

     (3)   has one prior conviction for murder, aggravated manslaughter, aggravated sexual assault, kidnapping or bail jumping; or

     (4)   was on parole at the time of the arrest; or

     (5)   was subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.), was charged with a crime committed against a person protected under that order and either: (a) is charged with commission of a domestic violence offense that resulted in serious bodily injury to the victim; or (b) has at least one prior conviction for a crime or offense involving domestic violence against the same victim or has previously violated a final restraining order protecting the same victim,

     unless the court finds on the record that another form of bail authorized in subsection b. of this section will ensure the defendant’s presence in court when required.

     d.    When bail is posted in the form of a bail bond secured by real property, the owner of the real property, whether the person is admitted to bail or a surety, shall also file an affidavit containing:

     (1) A legal description of the real property;

     (2) A description of each encumbrance on the real property;

     (3) The market value of the unencumbered equity owned by the affiant as determined in a full appraisal conducted by an appraiser licensed by the State of New Jersey; and

     (4)   A statement that the affiant is the sole owner of the unencumbered equity.

     e.     Nothing herein is intended to preclude a court from releasing a person on the person’s own recognizance when the court determines that such person is deserving.

(cf: P.L.2007, c.46, s.1)

 

     2.    Section 13 of P.L.1991, c.261 (C.2C:25-29) is amended to read as follows:

     13.  a.  A hearing shall be held in the Family Part of the Chancery Division of the Superior Court within 10 days of the filing of a complaint pursuant to section 12 of P.L.1991, c.261 (C.2C:25-28) in the county where the ex parte restraints were ordered, unless good cause is shown for the hearing to be held elsewhere.  A copy of the complaint shall be served on the defendant in conformity with the Rules of Court. If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261 (C.2C:25-17 et seq.) has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.  At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence.  The court shall consider but not be limited to the following factors:

     (1)   The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

     (2)   The existence of immediate danger to person or property;

     (3)   The financial circumstances of the plaintiff and defendant;

     (4)   The best interests of the victim and any child;

     (5)   In determining custody and parenting time the protection of the victim's safety; and

     (6)   The existence of a verifiable order of protection from another jurisdiction; and

     (7) Any previous conviction against the defendant involving domestic violence.

     An order issued under this act shall only restrain or provide damages payable from a person against whom a complaint has been filed under this act and only after a finding or an admission is made that an act of domestic violence was committed by that person.  The issue of whether or not a violation of this act occurred, including an act of contempt under this act, shall not be subject to mediation or negotiation in any form.  In addition, where a temporary or final order has been issued pursuant to this act, no party shall be ordered to participate in mediation on the issue of custody or parenting time.

     b.    In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse.  In addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.  At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:

     (1)   An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.

     (2)   An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties.  This order shall not in any manner affect title or interest to any real property held by either party or both jointly.  If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.

     (3)   An order providing for parenting time.  The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant.  Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.

     (a)   The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with parenting time rights to a child in the parent's custody for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order.  Any denial of such a request must be on the record and shall only be made if the judge finds the request to be arbitrary or capricious.

     (b)   The court shall consider suspension of the parenting time order and hold an emergency hearing upon an application made by the plaintiff certifying under oath that the defendant's access to the child pursuant to the parenting time order has threatened the safety and well-being of the child.

     (4)   An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence.  The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine.  Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.

     (5)   An order requiring the defendant to receive professional domestic violence counseling or other counseling or psychiatric treatment from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling.  The court may order the defendant to pay for the [professional] counseling or treatment.  No application by the defendant to dissolve a final order which contains a requirement for attendance at [professional] counseling or treatment pursuant to this paragraph shall be granted by the court unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such counseling or treatment. The court may require that attendance at such counseling or treatment is a condition of bail.

     (6)   An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

     (7)   An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.

     (8)   An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.

     (9)   An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.

     (10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any.  An ongoing obligation of support shall be determined at a later date pursuant to applicable law.

     (11) An order awarding temporary custody of a minor child.  The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.

     (12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued.  This order shall be restricted in duration.

     (13) (Deleted by amendment, P.L.1995, c.242).

     (14) An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.

     (15) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.

     (16) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.  The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.

     (17) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.  Behavior prohibited under this act includes, but is not limited to, behavior prohibited under the provisions of P.L.1992, c.209 (C.2C:12-10).

     (18) An order requiring the defendant to undergo a psychiatric evaluation.

     c.     Notice of orders issued pursuant to this section shall be sent by the clerk of the Family Part of the Chancery Division of the Superior Court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency.

     d.    Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.

     e.     Prior to the issuance of any order pursuant to this section, the court shall order that a search be made of the domestic violence central registry.

(cf: P.L.2003, c.277, s.2)

 

     3.    Section 14 of P.L.1991, c.261 (C.2C:25-30) is amended to read as follows:

     14.  a.(1) Except as provided below, a violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection b. of N.J.S.2C:29-9 and each order shall so state. All contempt proceedings conducted pursuant to N.J.S.2C:29-9 involving domestic violence orders, other than those constituting indictable offenses, shall be heard by the Family Part of the Chancery Division of the Superior Court.  All contempt proceedings brought pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) shall be subject to any rules or guidelines established by the Supreme Court to guarantee the prompt disposition of criminal matters. Additionally, and notwithstanding the term of imprisonment provided in N.J.S.2C:43-8 and except as otherwise provided in paragraph  (2) of this subsection, any person convicted of a [second or subsequent] nonindictable domestic violence contempt offense shall serve a minimum term of [not less than 30 days.] not less than 48 hours; any person convicted of a second nonindictable domestic violence contempt offense shall serve a minimum term of not less than 45 days; and any person convicted of a third or subsequent nonindictable domestic violence contempt offense shall serve a minimum term of not less than 60 days. 

     (2)   Notwithstanding the term of imprisonment provided in N.J.C.2C:43-8, any person who:

     (a)   Is convicted of an indictable domestic violence contempt offense that resulted in serious bodily injury to the victim, or

     (b)   Is convicted of an indictable domestic violence contempt offense and was previously convicted, on one or more occasions, of a domestic violence offense against the same victim,

     shall serve a minimum term of not less than 60 days unless the court finds on the record that, 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.

     c.     Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of this act shall be excluded from enforcement under subsection b. of N.J.S.2C:29-9; however, violations of these orders may be enforced in a civil or criminal action initiated by the plaintiff or by the court, on its own motion, pursuant to applicable court rules. 

(cf: P.L.1994, c.94, s.6)

     4.    N.J.S.2C:29-9 is amended to read as follows:

     2C:29-9. Contempt. a. A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or protective order, pursuant to section 1 of P.L.1985, c.250 (C.2C:28-5.1), or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.

     b.    Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.  In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.  Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the provisions of this subsection.

     Notwithstanding the term of imprisonment provided in N.J.C.2C:43-8, any person convicted of an indictable domestic violence contempt offense under this subsection shall serve a minimum term of imprisonment of not less than 48 hours for the first offense, a minimum term of imprisonment of not less than 45 days for a second offense, and a minimum term of not less than 60 days for a third or subsequent offense; provided, however, that any person who:

     (a)   Is convicted of an indictable or nonindictable domestic violence contempt offense that resulted in serious bodily injury to the victim, or

     (b)   Is convicted of an indictable or nonindictable domestic violence contempt offense and was previously convicted, on one or more occasions, of a domestic violence offense against the same victim,

     shall serve a minimum term of not less than 60 days unless the court finds on the record that, 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.

     As used in this subsection, "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.  The term includes an Indian tribe or band, or Alaskan native village, which is recognized by a federal law or formally acknowledged by a state.

(cf: P.L.2008, c.81, s.3)

 

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

     2C:44-1. 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; and

     (14) The defendant was subject to an order entered under the provisions of the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.) and committed the offense against a person protected under that order.

     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, or a crime of the third degree where the court finds that the aggravating factor in paragraph (5) or paragraph (14) of subsection a. applies, 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 court finds that the aggravating factor in paragraph (5) of subsection a. applies 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); 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); or if the person is convicted of a crime of the third or fourth degree under the provisions of section 1 or 2 of P.L.2007, c.341 (C.2C:33-29 or C.2C:33-30); or if the person is convicted of a crime of the third or fourth degree and the court finds that the aggravating factor in paragraph (14) of subsection a. applies.

     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), a.(5), [or] a.(12), or a.(14) 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.341, s.7)

 

     6.    Section 10 of P.L.1991, c.261 (C.2C:25-26) is amended to read as follows:

     10.  a.  When a defendant charged with a crime or offense involving domestic violence is released from custody before trial on bail or personal recognizance, the court authorizing the release may as a condition of release issue an order prohibiting the defendant from having any contact with the victim including, but not limited to, restraining the defendant from entering the victim's residence, place of employment or business, or school, and from harassing or stalking the victim or victim's relatives in any way.  The court may enter an order prohibiting the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located.  The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.  The Superior Court or municipal court  may, as a condition of release, order  the defendant to undergo  a domestic violence risk assessment, a psychiatric evaluation, or an alcohol and substance abuse evaluation. The Superior Court or municipal court may order counseling, treatment, or attendance at a psychiatric treatment facility or other treatment facility for any necessary recommended treatment. The Superior Court or municipal court may require periodic updates from the treatment provider.

     b.    The written court order releasing the defendant shall contain the court's directives specifically restricting the defendant's ability to have contact with the victim or the victim's friends, co-workers or relatives.  The clerk of the court or other person designated by the court shall provide a copy of this order to the victim forthwith.

     c.     The victim's location shall remain confidential and shall not appear on any documents or records to which the defendant has access.

     d.    Before bail is set, the defendant's prior record shall be considered by the court.  The court shall also conduct a search of the domestic violence central registry.  Bail shall be set as soon as is feasible, but in all cases within 24 hours of arrest.

     e.     Once bail is set it shall not be reduced without prior notice to the county prosecutor and the victim.  Bail shall not be reduced by a judge other than the judge who originally ordered bail, unless the reasons for the amount of the original bail are available to the judge who reduces the bail and are set forth in the record.

     f.     A victim shall not be prohibited from applying for, and a court shall not be prohibited from issuing, temporary restraints pursuant to this act because the victim has charged any person with commission of a criminal act.

(cf:  1999, c.421, s.2)

 

     7.    (New section)  Any order of the Superior Court or municipal court pursuant to paragraph (5) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or subsection a. of section 10 of P.L.1991, c.261 (C.2C:25-26) requiring a person  subject to a domestic violence restraining order to receive counseling or treatment shall be maintained as part of the criminal history record of such person.

 

     8.    This act shall take effect immediately. 

 

 

STATEMENT

 

     This bill would increase certain sentences and impose bail restrictions on persons who violate domestic violence restraining orders. The bill would also authorize the court to order the defendant to undergo evaluation and treatment under certain circumstances.

     This bill amends N.J.S.A.2A:162-12 to impose bail restrictions on persons who were subject to a restraining order and are charged with committing a crime against the person protected by the order. Currently, N.J.S.A.2A:162-12 provides that a person charged with certain crimes of the first or second degree may only use full cash, certain surety bonds or certain bail bonds as a means of posting bail. Persons charged with these enumerated crimes cannot use the 10% cash option for posting bail.

     In addition, this bill provides a presumption in favor of posting full cash bail when the defendant was subject to a temporary or permanent restraining order issued, was charged with a crime committed against a person protected under that order and either: (a) is charged with commission of a domestic violence offense that resulted in serious bodily injury to the victim; or (b) has at least one prior conviction for a predicate domestic violence offense against the same victim or has previously violated a final restraining order protecting the same victim.

     Currently, there is a presumption in favor of the court designating the posting of full United States currency cash bail to the exclusion of other forms of bail when a defendant is charged with an enumerated offense and the defendant: (1) has two other indictable cases pending at the time of the arrest; or (2) has two prior convictions for a first or second degree crime or for a violation of NJSA 2C:35-7, drugs near or on school property, or any combination thereof; or  (3) has one prior conviction for murder, aggravated manslaughter, aggravated sexual assault, kidnapping or bail jumping; or (4) was on parole at the time of the arrest.

     The bill amends N.J.S.A.2C:25-29 to provide that, in determining whether to impose a final restraining order against a person alleged to have committed domestic violence, the family court would be required to consider, among other factors, any previous conviction against the defendant involving domestic violence.  The bill would also authorize the court to order counseling or treatment.  In addition, the bill provides that the court may require attendance at such counseling as a condition of bail.

     This bill would also impose increased sentences on domestic violence offenders who violate restraining orders. Currently N.J.S.A.2C:25-30 provides that a person convicted of a second or subsequent nonindictable domestic violence contempt offense must serve a minimum term of imprisonment of at least 30 days. 

     The bill amends N.J.S.A.2C:25-30 and N.J.S.A.2C:29-9 to provide that a person convicted of a first offense of an indictable or nonindictable domestic violence contempt offense would serve a minimum term of at least 48 hours, a person convicted of an indictable or nonindictable second offense would serve a minimum term of at least 45 days, and a person convicted of an indictable or nonindictable third or subsequent offense would serve a minimum term of at least 60 days.  The bill also requires that a person convicted of an indictable or nonindictable domestic violence contempt offense would be a required to serve a minimum term of at least 60 days if the offense resulted in serious bodily injury to the victim or if the person has one or more previous convictions for a domestic violence offense against the same victim, unless the court finds on the record that, 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.

     In addition, the bill amends N.J.S.A.2C:44-1 to add as an aggravating factor whether the defendant was subject to a domestic violence restraining order and committed the offense against a person protected under that order. The court would be required to weigh this factor in determining sentencing.  Generally, crimes of the third or fourth degree carry a presumption that the defendant will not be sentenced to imprisonment.  However, the bill provides that if the defendant was convicted of a crime of the third degree and the domestic violence aggravating factor was present, the court would sentence the defendant to imprisonment unless, having regard to the character and condition of the defendant, the court is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. 

     The bill also amends N.J.S.A.2C:25-26 to provide that the Superior Court or municipal court would be permitted, as a condition of release, to order the defendant to undergo a domestic violence risk assessment, a psychiatric evaluation, or an alcohol and substance abuse evaluation. Under the bill the Superior Court or municipal court would also be permitted to order counseling, treatment, or attendance at a psychiatric treatment facility or other treatment facility for any necessary recommended treatment. The Superior Court or municipal court would also be permitted to require periodic updates from the treatment provider.

     In addition, under the bill any order of the Superior Court or municipal court that requires a person subject to a domestic violence restraining order to receive counseling or treatment would be required to be maintained as part of the criminal history record of such person.