SENATE, No. 1316

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 8, 2010

 


 

Sponsored by:

Senator  SHIRLEY K. TURNER

District 15 (Mercer)

 

 

 

 

SYNOPSIS

     Authorizes the court to issue restraining orders to defendants charged with a crime as a condition of release on bail.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning certain restraining orders and supplementing Title 2A of the New Jersey Statutes.

 

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

 

     1.    As used in this act:

     a.     "Person" means any person charged with or convicted of a crime or any juvenile charged with delinquency or adjudicated delinquent for an act which, if committed by an adult, would be a crime.

     b.    "Place" includes any premises, residence, business establishment, location or specified area including all buildings and all appurtenant land, in which or at which a crime occurred or is alleged to have occurred or is affected by the crime with which the person is charged or where a witness to the crime or a member of the family of the witness resides, is employed, or attends school. "Place" does not include public rail, bus or air transportation lines or limited access highways which do not allow pedestrian access.

 

     2.    a.  When a person is charged with a crime on a warrant and the person is released from custody before trial on bail or personal recognizance, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 4 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill) and except as provided in subsection e. of this section, shall as a condition of release issue an order prohibiting the person from entering any place defined by section 1 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     b.    When a person is charged with a crime on a summons, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 4 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill) and except as provided in subsection e. of this section, shall, at the time of the defendant's first appearance, issue an order prohibiting the person from entering any place defined by section 1 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     c.     When a person is charged with a crime on a juvenile delinquency complaint and is released from custody at a detention hearing pursuant to section 19 of P.L.1982, c.77 (C.2A:4A-38), the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 4 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill) and except as provided in subsection e. of this section, shall issue an order prohibiting the person from entering any place defined by section 1 of P.L.    , c.     (C.       ) (pending before the Legislature as this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     d.    When a person is charged with a crime on a juvenile delinquency complaint and is released without being detained pursuant to section 15 or 16 of P.L.1982, c.77 (C.2A:4A-34 or C.2A:4A-35), the law enforcement officer or prosecuting attorney shall prepare an application pursuant to section 4 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill) for filing on the next court day.

     The law enforcement officer releasing the juvenile shall serve the juvenile and his parent or guardian with written notice that an order shall be issued by the Family Part of the Superior Court on the next court day prohibiting the juvenile from entering any place defined by section 1 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     The court shall issue such order on the first court day following the release of the juvenile.  If the restraints contained in the court order differ from the restraints contained in the notice, the order shall not be effective until the third court day following the issuance of the order.  The juvenile may apply to the court to stay or modify the order on the grounds set forth in subsection e. of this section.

     e.     The court may forego issuing a restraining order for which application has been made pursuant to this act only if the defendant establishes by clear and convincing evidence that:

     (1)  the defendant lawfully resides at or has legitimate business on or near the place, or otherwise legitimately needs to enter the place. In such an event, the court shall not issue an order pursuant to this section unless the court is clearly convinced that the need to bar the person from the place in order to protect the public safety and the rights, safety and health of the residents and persons working in the place outweighs the person's interest in returning to the place.  If the balance of the interests of the person and the public so warrants, the court may issue an order imposing conditions upon the person's entry at, upon or near the place; or

     (2)   the issuance of an order would cause undue hardship to innocent persons and would constitute a serious injustice which overrides the need to protect the rights, safety and health of persons residing in or having business in the place.

     f.     A restraining order issued pursuant to subsection a., b., c., d. or h. of this section shall describe the place from which the person has been barred and any conditions upon the person's entry into the place, with sufficient specificity to enable the person to guide his conduct accordingly and to enable a law enforcement officer to enforce the order.  The order shall also prohibit the person from entering an area of up to 500 feet surrounding the place, unless the court rules that a different buffer zone would better effectuate the purposes of this act.  In the discretion of the court, the order may contain modifications to permit the person to enter the area during specified times for specified purposes, such as attending school during regular school hours.  When appropriate, the court may append to the order a map depicting the place.  The person shall be given a copy of the restraining order and any appended map and shall acknowledge in writing the receipt thereof.

     g.     (1)  The court shall provide notice of the restraining order to the local law enforcement agency where the arrest occurred and to the county prosecutor.

     (2)   Notwithstanding the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60), prior to the person's conviction or adjudication of delinquency for a crime, the local law enforcement agency may post a copy of any orders issued pursuant to this section, or an equivalent notice containing the terms of the order, upon one or more of the principal entrances of the place or in any other conspicuous location.  Such posting shall be for the purpose of informing the public, and the failure to post a copy of the order shall in no way excuse any violation of the order.

     (3)   Notwithstanding the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60), prior to the person's conviction or adjudication of delinquency for a crime, any law enforcement agency may publish a copy of any orders issued pursuant to this section, or an equivalent notice containing the terms of the order, in a newspaper circulating in the area of the restraining order.  Such publication shall be for the purpose of informing the public, and the failure to publish a copy of the order shall in no way excuse any violation of the order.

     (4)   Notwithstanding the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60), prior to the person's conviction or adjudication of delinquency for a crime, any law enforcement agency may distribute copies of any orders issued pursuant to this section, or an equivalent notice containing the terms of the order, to residents or businesses located within the area delineated in the order or, in the case of a school or any government-owned property, to the appropriate administrator, or to any tenant association representing the residents of the affected area.  Such distribution shall be for the purpose of informing the public, and the failure to publish a copy of the order shall in no way excuse any violation of the order.

     h.     When a person is convicted of or adjudicated delinquent for any crime, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 4 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill) and except as provided in subsection e. of this section, shall, by separate order or within the judgment of conviction, issue an order prohibiting the person from entering any place defined by section 1 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section. Upon the person's conviction or adjudication of delinquency for a crime, a law enforcement agency, in addition to posting, publishing, and distributing the order or an equivalent notice pursuant to paragraphs (2), (3) and (4) of subsection g. of this section, may also post, publish and distribute a photograph of the person.

     i.      When a juvenile has been adjudicated delinquent for an act which, if committed by an adult, would be a crime, in addition to an order required by subsection h. of this section or any other disposition authorized by law, the court may order the juvenile and any parent, guardian or any family member over whom the court has jurisdiction to take such actions or obey such restraints as may be necessary to facilitate the rehabilitation of the juvenile or to protect public safety or to safeguard or enforce the rights of residents of the place.  The court may commit the juvenile to the care and responsibility of the Department of Human Services until such time as the juvenile reaches the age of 18 or until the order of removal and restraint expires, whichever first occurs, or to such alternative residential placement as is practicable.

     j.     An order issued pursuant to subsection a., b., c. or d. of this section shall remain in effect until the case has been adjudicated or dismissed, or for not less than two years, whichever is less.  An order issued pursuant to subsection h. of this section shall remain in effect for such period of time as shall be fixed by the court but not longer than the maximum term of imprisonment or incarceration allowed by law for the underlying offense or offenses.  When the court issues a restraining order pursuant to subsection h. of this section and the person is also sentenced to any form of probationary supervision or participation in the Intensive Supervision Program, the court shall make continuing compliance with the order an express condition of probation or the Intensive Supervision Program.  When the person has been sentenced to a term of incarceration, continuing compliance with the terms and conditions of the order shall be made an express condition of the person's release from confinement or incarceration on parole.  At the time of sentencing or, in the case of a juvenile, at the time of disposition of the juvenile case, the court shall advise the defendant that the restraining order shall include a fixed time period in accordance with this subsection and shall include that provision in the judgment of conviction, dispositional order, separate order or order vacating an existing restraining order, to the law enforcement agency that made the arrest and to the county prosecutor.

     k.    All applications to stay or modify an order issued pursuant to this act, including an order originally issued in municipal court, shall be made in the Superior Court. The court shall immediately notify the county prosecutor in writing whenever an application is made to stay or modify an order issued pursuant to this act.  If the court does not issue a restraining order, the sentence imposed by the court for a crime as defined in subsection b. of this section shall not become final for ten days in order to permit the appeal of the court's findings by the prosecution.

     l.      Nothing in this section shall be construed in any way to limit the authority of the court to take such other actions or to issue such orders as may be necessary to protect the public safety or to safeguard or enforce the rights of others with respect to the place.

     m.    Notwithstanding any other provision of this section, the court may permit the person to return to the place to obtain personal belongings and effects and, by court order, may restrict the time and duration and provide for police supervision of such a visit.

 

     3.    Violation of any order issued pursuant to this act shall subject the person to civil contempt, criminal contempt, revocation of bail, probation or parole, or any combination of these sanctions and any other sanctions authorized by law.  A violation of any order issued pursuant to this act shall not result in the forfeiture of a bond posted for the underlying offense.  A law enforcement officer may arrest an adult or take into custody a juvenile when an officer has probable cause to believe that the person has violated the terms of any removal and restraining order issued pursuant to section 2 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill).

 

     4.    The court shall issue a restraining order pursuant to this act only upon request by a law enforcement officer or prosecuting attorney and submission of a certification describing the location of the offense.

 

     5.    A law enforcement officer or prosecuting attorney shall have discretion to not seek a restraining order pursuant to this act if the defendant is charged with an offense resulting from the stop of a motor vehicle, if the defendant was using public transportation, or if the provisions of paragraph (1) or (2) of subsection e. of section 2 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill) are applicable.

 

     6.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill authorizes the court to issue restraining orders against defendants charged with a crime as a condition of release on bail. Under the bill, when a person is charged with a crime on a warrant and is released from custody before trial on bail or personal recognizance, the court, upon application of a law enforcement officer or prosecutor, shall as a condition of release issue an order prohibiting the person from entering a particular place.  The bill defines “place” to include any premises, residence, business establishment, location or specified area including all buildings and all appurtenant land, in which or at which a crime occurred or is alleged to have occurred or is affected by the crime with which the person is charged or where a witness to the crime or a member of the family of the witness resides, is employed, or attends school. The definition of “place” does not include public rail, bus or air transportation lines or limited access highways which do not allow pedestrian access.

     Under the bill, the court may forego issuing a restraining order if the defendant establishes by clear and convincing evidence that:

     (1)   the defendant lawfully resides at or has legitimate business on or near the place, or otherwise legitimately needs to enter the place. In such an event, the bill provides that the court shall not issue an order unless the court is clearly convinced that the need to bar the person from the place in order to protect the public safety and the rights, safety and health of the residents and persons working in the place outweighs the person's interest in returning to the place.  If the balance of the interests of the person and the public so warrants, the court may issue an order imposing conditions upon the person's entry at, upon or near the place; or

     (2)   the issuance of an order would cause undue hardship to innocent persons and would constitute a serious injustice which overrides the need to protect the rights, safety and health of persons residing in or having business in the place.

     Violation of a restraining order under the bill would not result in the forfeiture of a bond posted for the underlying offense.

     This bill is modeled on the “Drug Offender Restraining Order Act of 1999,” P.L.1999, c.334 (C.2C:35-5.4 et seq.).