STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Assemblyman† TROY SINGLETON
District 7 (Burlington)
Assemblyman† JOHN J. BURZICHELLI
District 3 (Cumberland, Gloucester and Salem)
Assemblyman† RALPH R. CAPUTO
District 28 (Essex)
Assemblyman† HERB CONAWAY, JR.
District 7 (Burlington)
Assemblyman† JOSEPH A. LAGANA
District 38 (Bergen and Passaic)
Assemblyman† VINCENT MAZZEO
District 2 (Atlantic)
Assemblyman† JOE DANIELSEN
District 17 (Middlesex and Somerset)
Assemblywoman Vainieri Huttle, Assemblymen Dancer, C.A.Brown, Benson, Johnson, Taliaferro and Chiaravalloti
†††† Creates offense of financial exploitation of the elderly.
CURRENT VERSION OF TEXT
†††† Introduced Pending Technical Review by Legislative Counsel.
An Act creating the offense of financial exploitation of the elderly and amending N.J.S.2C:20-1 and N.J.S.2C:20-2 and supplementing chapter 20 of Title 2C of the New Jersey Statutes.
†††† Be It Enacted by the Senate and General Assembly of the State of New Jersey:
†††† 1.††† N.J.S.2C:20-1 is amended to read as follows:
†††† 2C:20-1.† Definitions.† In chapters 20 and 21, unless a different meaning plainly is required:
†††† a.†††† "Deprive" means: (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.
†††† b.††† "Fiduciary" means an executor, general administrator of an intestate, administrator with the will annexed, substituted administrator, guardian, substituted guardian, trustee under any trust, express, implied, resulting or constructive, substituted trustee, executor, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent or officer of a corporation, public or private, temporary administrator, administrator, administrator pendente lite, administrator ad prosequendum, administrator ad litem or other person acting in a similar capacity.† "Fiduciary" shall also include an employee or an agent of a cargo carrier, as the term is defined in subsection w. of this section, while acting in that capacity, or an independent contractor providing services to a cargo carrier as that term is defined in subsection w. of this section.
†††† c.†††† "Financial institution" means a bank, insurance company, credit union, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
†††† d.††† "Government" means the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.
†††† e.†††† "Movable property" means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location. "Immovable property" is all other property.
†††† f.†††† "Obtain" means: (1) in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof.
†††† g.††† "Property" means anything of value, including real estate, tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.
†††† h.††† "Property of another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband.† Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
†††† i.†††† "Trade secret" means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula or improvement which is secret and of value.† A trade secret shall be presumed to be secret when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.
†††† j.†††† "Dealer in property" means a person who buys and sells property as a business.
†††† k.††† "Traffic" means:
†††† (1)†† To sell, transfer, distribute, dispense or otherwise dispose of property to another person; or
†††† (2)†† To buy, receive, possess, or obtain control of or use property, with intent to sell, transfer, distribute, dispense or otherwise dispose of such property to another person.
†††† l.†††† "Broken succession of title" means lack of regular documents of purchase and transfer by any seller except the manufacturer of the subject property, or possession of documents of purchase and transfer by any buyer without corresponding documents of sale and transfer in possession of seller, or possession of documents of sale and transfer by seller without corresponding documents of purchase and transfer in possession of any buyer.
†††† m.†† "Person" includes any individual or entity or enterprise, as defined herein, holding or capable of holding a legal or beneficial interest in property.
†††† n.††† "Anything of value" means any direct or indirect gain or advantage to any person.
†††† o.††† "Interest in property which has been stolen" means title or right of possession to such property.
†††† p.††† "Stolen property" means property that has been the subject of any unlawful taking.
†††† q.††† "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities.
†††† r.†††† "Attorney General" includes the Attorney General of New Jersey, his assistants and deputies.† The term shall also include a county prosecutor or his designated assistant prosecutor, if a county prosecutor is expressly authorized in writing by the Attorney General to carry out the powers conferred on the Attorney General by this chapter.
†††† s.†††† "Access device" means property consisting of any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number, personal identification number, or any other data intended to control or limit access to telecommunications or other computer networks in either human readable or computer readable form, either copy or original, that can be used to obtain telephone service.† Access device also means property consisting of a card, code or other means of access to an account held by a financial institution, or any combination thereof, that may be used by the account holder for the purpose of initiating electronic fund transfers.
†††† t.†††† "Defaced access device" means any access device, in either human readable or computer readable form, either copy or original, which has been removed, erased, defaced, altered, destroyed, covered or otherwise changed in any manner from its original configuration.
†††† u.††† "Domestic companion animal" means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.
†††† v.††† "Personal identifying information" means any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual and includes, but is not limited to, the name, address, telephone number, date of birth, social security number, official State issued identification number, employer or taxpayer number, place of employment, employee identification number, demand deposit account number, savings account number, credit card number, mother's maiden name, unique biometric data, such as fingerprint, voice print, retina or iris image or other unique physical representation, or unique electronic identification number, address or routing code of the individual.
†††† w.†† "Cargo carrier" means: (1) any business or establishment regularly operating for the purpose of conveying goods or property for compensation from one place to another by road, highway, rail, water or air, by any means including but not limited to any pipeline system, railroad car, motor truck, truck, trailer, semi-trailer, commercial motor vehicle or other vehicle, any steamboat, vessel or aircraft, and any business or establishment regularly engaged in the temporary storage of goods or property incident to further distribution of the goods or property elsewhere for commercial purposes, including but not limited to businesses or establishments operating a tank or storage facility, warehouse, terminal, station, station house, platform, depot, wharf, pier, or from any ocean, intermodal, container freight station or freight consolidation facility; or (2) any business or establishment that conveys goods or property which it owns or has title to, from one place to another, by road, highway, rail, water or air by any means including but not limited to any pipeline system, railroad car, motor truck, truck, trailer, semi-trailer, commercial motor vehicle or other vehicle, any steamboat, vessel or aircraft, and including the storage and warehousing of goods and property incidental to their conveyance from one place to another.
†††† x.††† "Elderly person" means any person who is 60 years of age or older.
(cf:† P.L.2013, c.58, s.1)
†††† 2.††† N.J.S.2C:20-2 is amended to read as follows:
†††† 2C:20-2. a. Consolidation of Theft and Computer Criminal Activity Offenses.† Conduct denominated theft or computer criminal activity in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction.† A charge of theft or computer criminal activity may be supported by evidence that it was committed in any manner that would be theft or computer criminal activity under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
†††† b.††† Grading of theft offenses.
†††† (1)†† Theft constitutes a crime of the second degree if:
†††† (a)†† The amount involved is $75,000.00 or more;
†††† (b)†† The property is taken by extortion;
†††† (c)†† The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 and the quantity is in excess of one kilogram;
†††† (d)†† The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is $75,000.00 or more;
†††† (e)†† The property stolen is human remains or any part thereof; except that, if the human remains are stolen by deception or falsification of a document by which a gift of all or part of a human body may be made pursuant to P.L.2008, c.50 (C.26:6-77 et al.), the theft constitutes a crime of the first degree; or
†††† (f)†† It is in breach of an obligation by a person in his capacity as a fiduciary and the amount involved is $50,000.00 or more.
†††† (2)†† Theft constitutes a crime of the third degree if:
†††† (a)†† The amount involved exceeds $500.00 but is less than $75,000.00;
†††† (b)†† The property stolen is a firearm, motor vehicle, vessel, boat, horse, domestic companion animal or airplane;
†††† (c)†† The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 and the amount involved is less than $75,000.00 or is undetermined and the quantity is one kilogram or less;
†††† (d)†† It is from the person of the victim;
†††† (e)†† It is in breach of an obligation by a person in his capacity as a fiduciary and the amount involved is less than $50,000.00;
†††† (f)†† It is by threat not amounting to extortion;
†††† (g)†† It is of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant;
†††† (h)†† The property stolen is a person's benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person's health care and the amount involved is less than $75,000.00;
†††† (i)††† The property stolen is any real or personal property related to, necessary for, or derived from research, regardless of value, including, but not limited to, any sample, specimens and components thereof, research subject, including any warm-blooded or cold-blooded animals being used for research or intended for use in research, supplies, records, data or test results, prototypes or equipment, as well as any proprietary information or other type of information related to research;
†††† (j)††† The property stolen is a New Jersey Prescription Blank as referred to in [R.S.45:14-14] section 20 of P.L.2003, c.280 (C.45:14-59);
†††† (k)†† The property stolen consists of an access device or a defaced access device; or
†††† (l)††† The property stolen consists of anhydrous ammonia and the actor intends it to be used to manufacture methamphetamine.
†††† (3)†† Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00; except that if the theft involved financial exploitation of the elderly pursuant to section 3 of P.L.††† , c.††† (C.††††††† ) (pending before the Legislature as this bill), the theft constitutes a crime of the third degree.
†††† (4)†† Theft constitutes a disorderly persons offense if:
†††† (a)†† The amount involved was less than $200.00; except that if the theft involved financial exploitation of the elderly pursuant to section 3 of P.L.††† , c.† (C.†††† ) (pending before the Legislature as this bill), the theft constitutes a crime of the fourth degree; or
†††† (b)†† The property stolen is an electronic vehicle identification system transponder.
†††† The amount involved in a theft or computer criminal activity shall be determined by the trier of fact.† The amount shall include, but shall not be limited to, the amount of any State tax avoided, evaded or otherwise unpaid, improperly retained or disposed of. Amounts involved in thefts or computer criminal activities committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.
†††† c.†††† Claim of right.† It is an affirmative defense to prosecution for theft that the actor:
†††† (1)†† Was unaware that the property or service was that of another;
†††† (2)†† Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did; or
†††† (3)†† Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented.
†††† d.††† Theft from spouse.† It is no defense that theft or computer criminal activity was from or committed against the actor's spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft or computer criminal activity only if it occurs after the parties have ceased living together.
(cf:† P.L.2013, c.58, s.2)
†††† 3.††† (New section)† a.† A person is guilty of theft by financial exploitation of the elderly when the person uses fraud, false promise, extortion, or intimidation to compel or induce an elderly person to deliver the elderly personís property or personal identifying information to any person.
†††† b.††† No provision of this section shall be deemed to impose criminal liability upon any person who in good faith seeks to assist an elderly person in the management of the elderly personís property, but through no fault of such person is unable to assist the elderly person.†
†††† c.†††† In any prosecution for
theft by financial exploitation of the elderly, it is an affirmative defense
that the defendant did not know, or could not have known, the facts or
conditions which render the
person an elderly person as defined in subsection x. of N.J.S.2C:20-1.
†††† 4.††† (New section)† a.† As used in this section:
†††† "Financial institution" means a state or federally chartered bank, savings bank or savings and loan association or any other financial services company or provider, including, but not limited to, broker-dealers, investment companies, money market and mutual funds, credit unions and insurers.
†††† b.††† In any prosecution for theft by financial exploitation of the elderly, a court may, upon application by the prosecutor, issue an attachment order directing a financial institution to freeze some or all of the funds or assets deposited with or held by the financial institution by or on behalf of an account holder when there exists a reasonable suspicion that the account holder has committed the crime of theft by financial exploitation of the elderly in violation of section 3 of P.L.††††† , c.††††† (C.†††††† ) (pending before the Legislature as this bill).
†††† c.†††† The application of the prosecutor shall contain:
†††† (1)†† a statement of the approximate financial loss alleged to have been caused by the account holder in the commission of the crime of theft by financial exploitation of the elderly;
†††† (2)†† a statement of facts relied upon by the prosecutor, including the details of the particular offense alleged to have been committed; and
†††† (3)†† identification of the account holder's name and financial institution account number.
†††† d.††† The court may order the financial institution to freeze all or part of the account holder's deposited funds or assets so that the funds or assets may not be withdrawn or disposed of until further order of the court upon finding that:
†††† (1)†† there exists a reasonable suspicion that the account holder has committed the crime of theft by financial exploitation of the elderly;
†††† (2)†† the accounts of the account holder are specifically identified; and
†††† (3)†† it is necessary to freeze the account holder's funds or assets to ensure eventual restitution to victims of the alleged offense.
†††† e.†††† Upon receipt of the order authorized by this section, a financial institution shall not permit any funds or assets that were frozen by the order to be withdrawn or disposed of until further order of the court.
†††† f.†††† The account holder may, upon notice and motion, have a hearing to contest the freezing of funds or assets and to seek the release of all or part of them.† The account holder is entitled to an order releasing all or part of the funds or assets by showing:
†††† (1)†† that the account holder has posted a bond or other adequate surety, guaranteeing that, upon conviction, adequate funds or assets will be available to pay complete restitution to victims of the alleged offense;
†††† (2)†† that there does not exist a reasonable suspicion that the account holder has committed the alleged offense;
†††† (3)†† that the amount of funds or assets frozen is more than is necessary to pay complete restitution to all victims of the alleged offense; or
†††† (4)†† that the funds or assets should be returned in the interests of justice.
†††† It is not grounds for the release of funds or assets that the particular accounts frozen do not contain funds or assets that are alleged to be proceeds from or used in the commission of the crime financial exploitation of the elderly.
†††† g.††† (1)† The court may order the financial institution to remit all or part of the frozen funds or assets to the court.
†††† (2)†† If the account holder is acquitted or the charges are dismissed with prejudice, the court shall issue an order releasing the freeze on the funds or assets.
†††† (3)†† If the account holder is not acquitted or the charges are not dismissed, the frozen funds or assets shall be used to provide restitution to any victims of the offense.
†††† h.††† The freeze permitted by this section expires 24 months after the date of the court's initial attachment order unless the time limit is extended by the court in writing upon a showing of good cause by the prosecutor.
†††† i.†††† Within 10 days after a court issues an attachment order under this section, the prosecutor shall send a copy of the order to the account holder's last known address or to the account holder's attorney, if known.
†††† j.†††† A financial institution that is directed to block, freeze, or encumber an account pursuant to this section shall be entitled during the period that the account is blocked, frozen, or encumbered to exercise any right or remedy with respect to the account as provided by law, or in the deposit agreement and rules or regulations of the financial institution applicable to the account.† The provisions of this section shall not be construed to preclude a financial institution from exercising its right of set-off or to charge back or recoup a deposit to an account.
†††† k.††† Notwithstanding any other law to the contrary, a financial institution shall not be liable to any person for blocking, freezing, encumbering, or refusing to release any funds or assets held by the financial institution in response to an order issued by a court, or for any other action taken by the financial institution in good faith to comply with the requirements of this section.† A financial institution shall not be required to give notice to an account holder or customer that the financial institution has taken any action pursuant to this section and shall not be liable for failure to provide the notice.
†††† l.†††† Nothing contained in this section shall be construed to abrogate or affect the status, force, or operation of the forfeiture provisions of the "New Jersey Code of Criminal Justice," N.J.S.2C:64-1 et seq., or any other provision of law.
†††† 5.††† This act shall take effect immediately.
††††† This bill creates the offense of theft by financial exploitation of the elderly.† The bill provides that a person is guilty of theft by financial exploitation of the elderly if the person uses fraud, false promise, extortion, or intimidation to compel or induce any elderly person, which is defined to mean a person who is over the age of 60, to deliver the elderly personís property or personal identifying information to any person.
††††† Ordinarily, a theft offense involving $75,000 or more is a crime of the second degree; a theft offense involving more than $500 but less than $75,000 is a crime of the third degree; a theft offense involving at least $200 but no more than $500 is a crime of the fourth degree; and a theft offense involving less than $200 is a disorderly persons offense.†
††††† Theft by financial exploitation of the elderly would be graded one degree higher than an ordinary theft offense when the amount involved is $500 or less.† Specifically, theft by financial exploitation of the elderly would be a crime of the third degree if the amount involved is at least $200 but no more than $500, and a crime of the fourth degree if the amount involved is less than $200.† Theft by financial exploitation of the elderly would be graded the same as other theft offenses when the amount involved is more than $500.†
††††† A crime of the second degree is punishable by imprisonment for five to 10 years, up to a $150,000 fine, or both; a crime of the third degree is punishable by imprisonment for three to five years, up to a $15,000 fine, or both; a crime of the fourth degree is punishable by imprisonment for up to 18 months, up to a $10,000 fine, or both; a disorderly persons offense is punishable by imprisonment for up to six months, up to a $1,000 fine, or both.
††††† The bill permits a court, on application by the prosecutor, to freeze the financial accounts of a person charged with theft by financial exploitation of the elderly.† The prosecutorís application must include a statement of the approximate alleged financial loss caused by the account holder, a statement of facts relied on by the prosecutor that includes details of the charged offense, and information identifying any accounts for which the freeze is requested.†
††††† The court may issue an order freezing an account upon finding there is reasonable suspicion the account holder committed the alleged offense, the accounts are specifically identified, and the freeze is necessary to ensure restitution is made to any victims.† There is no requirement under the bill that the accounts for which a freeze is sought include funds or assets that are proceeds of or were used in the commission of the alleged offense.† The prosecutor would be required to send a copy of the account freeze order to the account holderís last known address, or the account holderís attorney, if known, within 10 days of issuance.† An order authorizing an account freeze would expire after 24 months unless extended upon good cause shown.
††††† The account holder would be entitled to a hearing on the application and obtain release of all or part of the frozen funds upon showing of any of the following: (1) the account holder has posted sufficient bond or surety to guarantee restitution to any victims; (2) reasonable suspicion does not exist that the account holder committed the alleged offense; (3) the amount of the frozen funds or assets is more than would be necessary to make restitution; or (4) the funds or assets should be returned in the interests of justice.
††††† The bill provides that financial institutions that are directed to freeze an account may exercise any right or remedy with respect to the account as provided by law, or in the deposit agreement and rules or regulations of the financial institution applicable to the account, and would not be precluded from exercising a right of set-off or from charging back or recouping a deposit to an account.† A financial institution would be immune from liability for any actions taken in compliance with a court order freezing an account and any other actions taken in good faith to comply with the provisions of the bill.† A financial institution would not be required to provide an account holder with notice of a freeze ordered by a court.
††††† The account freeze provisions of the bill would not be construed to abrogate or affect the status, force, or operation of the forfeiture provisions of the criminal code.