ASSEMBLY, No. 4016

STATE OF NEW JERSEY

216th LEGISLATURE

 

INTRODUCED DECEMBER 15, 2014

 


 

Sponsored by:

Assemblyman  JOSEPH A. LAGANA

District 38 (Bergen and Passaic)

Assemblyman  VINCENT MAZZEO

District 2 (Atlantic)

Assemblywoman  GABRIELA M. MOSQUERA

District 4 (Camden and Gloucester)

Assemblywoman  VALERIE VAINIERI HUTTLE

District 37 (Bergen)

 

 

 

 

SYNOPSIS

     Upgrades assault against domestic violence victims; revises Pretrial Intervention procedures in domestic violence cases.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning domestic violence and pretrial intervention 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:12-1 is amended to read as follows:

     2C:12-1.     Assault. a. Simple assault. A person is guilty of assault if he:

     (1)   Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

     (2)   Negligently causes bodily injury to another with a deadly weapon; or

     (3)   Attempts by physical menace to put another in fear of imminent serious bodily injury.

     Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.

     b.    Aggravated assault.  A person is guilty of aggravated assault if he:

     (1)   Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

     (2)   Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

     (3)   Recklessly causes bodily injury to another with a deadly weapon; or

     (4)   Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in [section 2C:39-1f.] subsection f. of N.J.S.2C:39-1, at or in the direction of another, whether or not the actor believes it to be loaded; or

     (5)   Commits a simple assault as defined in paragraph (1), (2) or (3) of subsection a. [(1), (2) or (3)] of this section upon:

     (a)   Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer; or

     (b)   Any paid or volunteer fireman acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of the duties of a fireman; or

     (c)   Any person engaged in emergency first-aid or medical services acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of emergency first-aid or medical services; or

     (d)   Any school board member, school administrator, teacher,
school bus driver or other employee of a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a member or employee of a public or nonpublic school or school board or any school bus driver employed by an operator under contract to a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a school bus driver; or

     (e)   Any employee of the Division of Child Protection and Permanency while clearly identifiable as being engaged in the performance of his duties or because of his status as an employee of the division; or

     (f)   Any justice of the Supreme Court, judge of the Superior Court, judge of the Tax Court or municipal judge while clearly identifiable as being engaged in the performance of judicial duties or because of his status as a member of the judiciary; or

     (g)   Any operator of a motorbus or the operator's supervisor or any employee of a rail passenger service while clearly identifiable as being engaged in the performance of his duties or because of his status as an operator of a motorbus or as the operator's supervisor or as an employee of a rail passenger service; or

     (h)   Any Department of Corrections employee, county corrections officer, juvenile corrections officer, State juvenile facility employee, juvenile detention staff member, juvenile detention officer, probation officer or any sheriff, undersheriff, or sheriff's officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority; or

     (i)    Any employee, including any person employed under contract, of a utility company as defined in section 2 of P.L.1971, c.224 (C.2A:42-86) or a cable television company subject to the provisions of the "Cable Television Act," P.L.1972, c.186 (C.48:5A-1 et seq.) while clearly identifiable as being engaged in the performance of his duties in regard to connecting, disconnecting or repairing or attempting to connect, disconnect or repair any gas, electric or water utility, or cable television or telecommunication service; or

     (j)    Any health care worker employed by a licensed health care facility to provide direct patient care, any health care professional licensed or otherwise authorized pursuant to Title 26 or Title 45 of the Revised Statutes to practice a health care profession, except a direct care worker at a State or county psychiatric hospital or State developmental center or veterans' memorial home, while clearly identifiable as being engaged in the duties of providing direct patient care or practicing the health care profession; or

     (k)   Any direct care worker at a State or county psychiatric hospital or State developmental center or veterans' memorial home, while clearly identifiable as being engaged in the duties of providing direct patient care or practicing the health care profession, provided that the actor is not a patient or resident at the facility who is classified by the facility as having a mental illness or developmental disability; or

     (6)   Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10.  Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this [subsection] paragraph upon proof of a violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10 which resulted in bodily injury to another person; or

     (7)   Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury; or

     (8)   Causes bodily injury by knowingly or purposely starting a fire or causing an explosion in violation of N.J.S.2C:17-1 which results in bodily injury to any emergency services personnel involved in fire suppression activities, rendering emergency medical services resulting from the fire or explosion or rescue operations, or rendering any necessary assistance at the scene of the fire or explosion, including any bodily injury sustained while responding to the scene of a reported fire or explosion.  For purposes of this [subsection] paragraph, "emergency services personnel" shall include, but not be limited to, any paid or volunteer fireman, any person engaged in emergency first-aid or medical services and any law enforcement officer.  Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this paragraph upon proof of a violation of N.J.S.2C:17-1 which resulted in bodily injury to any emergency services personnel; or

     (9)   Knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer; or

     (10)  Knowingly points, displays or uses an imitation firearm, as defined in subsection v. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer with the purpose to intimidate, threaten or attempt to put the officer in fear of bodily injury or for any unlawful purpose; or

     (11)  Uses or activates a laser sighting system or device, or a system or device which, in the manner used, would cause a reasonable person to believe that it is a laser sighting system or device, against a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.  As used in this paragraph, "laser sighting system or device" means any system or device that is integrated with or affixed to a firearm and emits a laser light beam that is used to assist in the sight alignment or aiming of the firearm;

     (12)  Attempts to cause significant bodily injury or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly causes significant bodily injury to a person who, with respect to the actor, meets the definition of a victim of domestic violence, as defined in subsection d. of section 3 of P.L.1991, c. 261 (C.2C:25-19).

     Aggravated assault under [subsections b. (1) and b. (6)] paragraphs (1) and (6) of subsection b. of this section is a crime of the second degree; under [subsections b. (2), b. (7), b. (9) and b. (10)] paragraphs (2), (7), (9) and (10) of subsection b. of this section is a crime of the third degree; under [subsections b. (3) and b. (4)] paragraphs (3) and (4) of subsection b. of this section  is a crime of the fourth degree; and under [subsection b. (5)] paragraph (5) of subsection b. of this section is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree. Aggravated assault under [subsection b.(8)] paragraph (8) of subsection b. of this section is a crime of the third degree if the victim suffers bodily injury; if the victim suffers significant bodily injury or serious bodily injury it is a crime of the second degree. Aggravated assault under [subsection b. (11)] paragraph (11) of subsection b. of this section is a crime of the third degree. Aggravated assault under paragraph (12) of subsection b. of this section is a crime of the third degree but the presumption of non-imprisonment set forth in subsection e. of N.J.S.2C:44-1 for a first offense of a crime of the third degree shall not apply.

     c.  (1)  A person is guilty of assault by auto or vessel when the person drives a vehicle or vessel recklessly and causes either serious bodily injury or bodily injury to another.  Assault by auto or vessel is a crime of the fourth degree if serious bodily injury results and is a disorderly persons offense if bodily injury results. Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) may give rise to an inference that the defendant was driving recklessly.

     (2)   Assault by auto or vessel is a crime of the third degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and serious bodily injury results and is a crime of the fourth degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and bodily injury results.

     (3)   Assault by auto or vessel is a crime of the second degree if serious bodily injury results from the defendant operating the auto or vessel while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) while:

     (a)   on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

     (b)   driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

     (c)   driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

     Assault by auto or vessel is a crime of the third degree if bodily injury results from the defendant operating the auto or vessel in violation of this paragraph.

     A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of paragraph (3) of this subsection.

     It shall be no defense to a prosecution for a violation of subparagraph (a) or (b) of paragraph (3) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing.  Nor shall it be a defense to a prosecution under subparagraph (a) or (b) of paragraph (3) of this subsection that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

     (4)   Assault by auto or vessel is a crime of the third degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and serious bodily injury results and is a crime of the fourth degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and bodily injury results. For purposes of this paragraph, "driving a vehicle in an aggressive manner" shall include, but is not limited to, unexpectedly altering the speed of the vehicle, making improper or erratic traffic lane changes, disregarding traffic control devices, failing to yield the right of way, or following another vehicle too closely.

     As used in this [section] subsection, "vessel" means a means of conveyance for travel on water and propelled otherwise than by muscular power.

     d.    A person who is employed by a facility as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) who commits a simple assault as defined in paragraph (1) or (2) of subsection a. of this section upon an institutionalized elderly person as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) is guilty of a crime of the fourth degree.

     e.     (Deleted by amendment, P.L.2001, c.443).

     f.     A person who commits a simple assault as defined in paragraph (1), (2) or (3) of subsection a. of this section in the presence of a child under 16 years of age at a school or community sponsored youth sports event is guilty of a crime of the fourth degree.  The defendant shall be strictly liable upon proof that the offense occurred, in fact, in the presence of a child under 16 years of age.  It shall not be a defense that the defendant did not know that the child was present or reasonably believed that the child was 16 years of age or older.  The provisions of this subsection shall not be construed to create any liability on the part of a participant in a youth sports event or to abrogate any immunity or defense available to a participant in a youth sports event.  As used in this act, "school or community sponsored youth sports event" means a competition, practice or instructional event involving one or more interscholastic sports teams or youth sports teams organized pursuant to a nonprofit or similar charter or which are member teams in a youth league organized by or affiliated with a county or municipal recreation department and shall not include collegiate, semi-professional or professional sporting events.

(cf: P.L.2012, c.22, s.2)

 

     2.    Section 3 of P.L.1991, c.261 (C.2C:25-19) is amended to read as follows:

     3.    As used in this act:

     a.     "Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor: 

     (1)   Homicide    N.J.S.2C:11-1 et seq.

     (2)   Assault    N.J.S.2C:12-1

     (3)   Terroristic threats  N.J.S.2C:12-3

     (4)   Kidnapping    N.J.S.2C:13-1

     (5)   Criminal restraint    N.J.S.2C:13-2

     (6)   False imprisonment    N.J.S.2C:13-3

     (7)   Sexual assault    N.J.S.2C:14-2

     (8)   Criminal sexual contact  N.J.S.2C:14-3

     (9)   Lewdness    N.J.S.2C:14-4

     (10) Criminal mischief    N.J.S.2C:17-3

     (11)  Burglary    N.J.S.2C:18-2

     (12)  Criminal trespass    N.J.S.2C:18-3

     (13)  Harassment    N.J.S.2C:33-4

     (14)  Stalking    P.L.1992, c.209 (C.2C:12-10)

     (15)  Criminal coercion    N.J.S.2C:13-5

     (16)  Robbery    N.J.S.2C:15-1

     (17) Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense

     (18)  Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.)

      When one or more of these acts is inflicted by an unemancipated minor upon a person protected under this act, the occurrence shall not constitute "domestic violence," but may be the basis for the filing of a petition or complaint pursuant to the provisions of section 11 of P.L.1982, c.77 (C.2A:4A-30). 

     b.    "Law enforcement agency" means a department, division, bureau, commission, board or other authority of the State or of any political subdivision thereof which employs law enforcement officers. 

     c.     "Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest and conviction of offenders against the laws of this State. 

     d.    "Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or [former] was at any time a household member. "Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.  "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship. 

     e.     "Emancipated minor" means a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant or has been previously declared by a court or an administrative agency to be emancipated. 

(cf: P.L.1994, c.94, s.1) 

 

     3.    N.J.S.2C:13-5 is amended to read as follows:

     2C:13-5.     Criminal Coercion.

     a.     Offense defined.  A person is guilty of criminal coercion if, with purpose unlawfully to restrict another's freedom of action to engage or refrain  from engaging in conduct, he threatens to:

     (1)   Inflict bodily injury on anyone or commit any other offense, regardless of the immediacy of the threat;

     (2)   Accuse anyone of an offense;

     (3)   Expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;

     (4)   Take or withhold action as an official, or cause an official to take or  withhold action;

     (5)   Bring about or continue a strike, boycott or other collective action, except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group  in whose interest the actor acts;

     (6)   Testify or provide information or withhold testimony or information with  respect to another's legal claim or defense;  or

     (7)   Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

     It is an affirmative defense to prosecution based on paragraphs (2), (3), (4), (6) and (7) that the actor believed the accusation or secret to be true or  the proposed official action justified and that his purpose was limited to compelling the other to behave in a way reasonably related to the circumstances  which were the subject of the accusation, exposure or proposed official action,  as by desisting from further misbehavior, making good a wrong done, or  refraining from taking any action or responsibility for which the actor  believes the other disqualified.

     b.    Grading.  Criminal coercion is a crime of the fourth degree unless the threat is to commit a crime more serious than one of the fourth degree or the actor's purpose is criminal, in which cases the offense is a crime of the third degree.

(cf: P.L.1978, c.95, s.2C:13-5)

 

     4.    N.J.S.2C:43-12 is amended to read as follows:

     2C:43-12.   Supervisory Treatment--Pretrial Intervention.

     a.     Public policy. The purpose of N.J.S.2C:43-12 through N.J.S.2C:43-22 is to effectuate a Statewide program of Pretrial Intervention.  It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:

     (1)   Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or

     (2)   Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or

     (3)   Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or

     (4)   Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or

     (5)   Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.

     b.    Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense.  There shall be a presumption against admission into a program of supervisory treatment for a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment.

     c.     The decision and reasons therefor made by the designated judges (or assignment judges), prosecutors and program directors in granting or denying applications for supervisory treatment, in recommending and ordering termination from the program or dismissal of charges, in all cases shall be reduced to writing and disclosed to the applicant.

     d.    If an applicant desires to challenge the decision of the prosecutor or program director not to recommend enrollment in a program of supervisory treatment the proceedings prescribed under N.J.S.2C:43-14 and in accordance with the Rules of Court shall be followed.

     e.     Referral.  At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:

     (1)   The nature of the offense;

     (2)   The facts of the case;

     (3)   The motivation and age of the defendant;

     (4)   The desire of the complainant or victim to forego prosecution;

     (5)   The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

     (6)   The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;

     (7)   The needs and interests of the victim and society;

     (8)   The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

     (9)   The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

     (10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;

     (11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

     (12) The history of the use of physical violence toward others;

     (13) Any involvement of the applicant with organized crime;

     (14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

     (15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

     (16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and

     (17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

     The prosecutor and the court, in formulating their recommendations or decisions regarding an applicant’s participation in a supervisory treatment program, shall give added weight to the victim’s position on whether the defendant should be admitted.

     f.     Review of Supervisory Treatment Applications; Procedure Upon Denial. Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application.  If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial.  If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the rules of court to enter orders.

     g.    Limitations.  (1) Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), a conditional discharge pursuant to N.J.S.2C:36A-1, or a conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.) shall not be eligible for supervisory treatment under this section.

     [However,]  (2)  Except as otherwise provided in paragraph (3) of this subsection, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.

     (3)   Admission into supervisory treatment shall be available to  the following defendants only upon entering a plea of guilty: (a) a defendant charged with a first or second degree crime; (b) a defendant charged with any crime if the defendant had previously been convicted of a first or second degree crime; (c) a defendant charged with a third or fourth degree crime involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); (d) a defendant charged with 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) if the defendant committed the crime or offense while 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); or (e) a defendant charged with a fourth degree crime of contempt pursuant to subsection b. of N.J.S.2C:29-9.  For any such defendant, following the plea of guilty the plea shall be held in an inactive status pending termination of supervisory treatment pursuant to subsection d. or e. of N.J.S.2C:43-13. Upon successful completion of the program of supervisory treatment the charges shall be dismissed.

     h.    Termination.  Termination of supervisory treatment under this section shall be immediately reported to the assignment judge of the county who shall forward such information to the Administrative Director of the Courts.

     i.     Appointment of Program Directors; Authorized Referrals. Programs of supervisory treatment and appointment of the program directors require approval by the Supreme Court with the consent of the assignment judge and prosecutor. Referrals of participants from supervisory treatment programs may be to any public or private office or agency, including but not limited to, programs within the probation service of the court, offering counseling or any other social service likely to aid in the rehabilitation of the participant and to deter the commission of other offenses.

     j.     Health Care Professional Licensing Board Notification.  The program director shall promptly notify the State Board of Medical Examiners when a State licensed physician or podiatrist has been enrolled in a supervisory treatment program after he has been charged with an offense involving drugs or alcohol.

(cf: P.L.2013, c.158, s.11)

 

     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;

     (14)  The offense involved an act of domestic violence, as that term is defined in subsection a. of section 3 of P.L.1991, c. 261 (C.2C:25-19), committed in the presence of a child under 16 years of age; and

     (15) The offense involved an act of domestic violence, as that term is defined in subsection a. of section 3 of P.L.1991, c. 261 (C.2C:25-19) and the defendant committed at least one act of domestic violence on more than one occasion.

     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), (14) or (15) 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), (14) or (15)  of subsection a. applies  or  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;  if the person is convicted of a crime of the third degree under paragraph (12) of subsection b. of N.J.S.2C:12-1 or 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).

     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] subparagraph (a) of this [subsection] paragraph 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.] subsection b. of N.J.S.2C:43-6, 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)] paragraph (1) of subsection a. of N.J.S.2C:43-7 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)] paragraph (2) of subsection a. of N.J.S.2C:43-7 shall have a presumptive term of 50 years' imprisonment; sentences imposed pursuant to [2C:43-7a.(3)] paragraph (3) of subsection a. of N.J.S.2C:43-7 shall have a presumptive term of 15 years' imprisonment; and sentences imposed pursuant to [2C:43-7a.(4)] paragraph (4) of subsection a. of N.J.S.2C:43-7 shall have a presumptive term of seven years' imprisonment.

     In imposing a minimum term pursuant to [2C:43-7b.] subsection b. of N.J.S.2C43-7, 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), a.(10), or a.(12)] paragraph (2), (5), (10), or (12) of subsection a.  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.2010, c.30, s.1)

 

     6.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would upgrade assault against a victim of domestic violence under certain circumstances. Under current law, it is a crime of the third degree to attempt to cause significant bodily injury to another; to cause significant bodily injury purposely or knowingly; or, under circumstances manifesting extreme indifference to the value of human life, to recklessly cause such significant bodily injury. A crime of the third degree is ordinarily punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both.  Under N.J.S.2C:44-1 there is a presumption of non-imprisonment for a first offense of a crime of the third degree. Under the bill, if the victim, with respect to the actor, meets the definition of a victim of domestic violence, as defined in subsection d. of section 3 of P.L.1991, c.261 (C.2C:25-19), there would be no presumption of non-imprisonment.

     In addition, this bill would add the following offenses to the list of predicate offenses enumerated in the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.):  criminal coercion (N.J.S.2C:13-5); robbery (N.J.S.2C:15-1); contempt of a domestic violence order (subsection b. of N.J.S.2C:29-9) where the contempt would constitute a crime or disorderly persons offense; and any other crime involving a risk of death or serious bodily injury to a domestic violence victim.

     The bill would also expand the offense of criminal coercion, pursuant to N.J.S.2C:13-5, to include threatening to inflict bodily injury on anyone or commit any other offense regardless of the immediacy of the threat.

     In addition, the bill provides that additional weight should be given by the prosecutor and the court to a domestic violence victim’s position on the proposed admission of a defendant for participation in Pretrial Intervention (PTI), also known as supervisory treatment.  

     The bill also provides that admission into supervisory treatment would be made available to the following defendants only upon entering a plea of guilty:

     (a) a defendant charged with a first or second crime;

     (b) a defendant charged with any crime if the defendant had previously been convicted of a first or second degree crime;

     (c) a defendant charged with a third or fourth degree crime involving domestic violence;

     (d) a defendant charged with any crime or offense involving domestic violence, if the defendant  committed the crime or offense while subject to a domestic violence temporary or permanent restraining order; or

     (e) a defendant charged with a fourth degree crime of contempt of a domestic violence order.

     For any such defendant, following the plea of guilty the plea would be held in an inactive status pending termination of supervisory treatment pursuant to subsection d. or e. of N.J.S.2C:43-13. Upon successful completion of the program of supervisory treatment the charges would be dismissed.

     The bill would also amend N.J.S.2C:44-1 to add two new aggravating factors for the court to consider in imposing a sentence: (a) the offense involved an act of domestic violence committed in the presence of a child under 16 years of age; and (b) the offense involved an act of domestic violence and the defendant committed at least one act of domestic violence on more than one occasion.