S2057

An Act concerning criminal street gangs, amending various parts of the statutory law, and supplementing 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:2-6 is amended to read as follows:

2C:2-6. a. A [person] defendant is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

b. A [person] defendant is legally accountable for the conduct of another person when:

(1) [Acting] acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;

(2) [He] he is made accountable for the conduct of such other person by the code or by the law defining the offense;

(3) [He] he is an accomplice of such other person in the commission of an offense; or

(4) [He] he is engaged in a conspiracy with such other person.

c. A [person] defendant is an accomplice of another person in the commission of an offense if:

(1) [With] with the purpose of promoting or facilitating the commission of the offense; he

(a) [Solicits] solicits such other person to commit it;

(b) [Aids] aids or agrees or attempts to aid such other person in planning or committing it; [or]

(d) the act is committed by a person that the defendant has caused, encouraged, intimidated, coerced, or solicited to commit while soliciting or recruiting the person to join or actively participate in a criminal street gang in violation of section 1 of P.L.1999, c.160 (C.2C:33-28); or

(2) [His] his conduct is expressly declared by law to establish his complicity.

d. A [person] defendant who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by another person for whose conduct he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.

e. Unless otherwise provided by the code or by the law defining the offense, a [person] defendant is not an accomplice in an offense committed by another person if:

(1) [He] he is a victim of that offense;

(2) [The] the offense is so defined that his conduct is inevitably incident to its commission; or

(3) [He] he terminates his complicity under circumstances manifesting a complete and voluntary renunciation as defined in [section 2C:5-1 d.] subsection d. of N.J.S.2C:5-1 prior to the commission of the offense. Termination by renunciation is an affirmative defense which the defendant must prove by a preponderance of evidence.

f. An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

(cf: N.J.S.2C:2-6)

2. Section 1 of P.L.1999, c.160 (C.2C:33-28) is amended to read as follows:

1. a. An actor who causes, encourages, intimidates, coerces, solicits, or recruits another to join or actively participate in a criminal street gang with the knowledge or purpose that the person who is solicited or recruited will promote, further, assist, plan, aid, agree, or attempt to aid in the commission of criminal conduct by a member of a criminal street gang commits a crime of the fourth degree and shall be liable as an accomplice under subsection c. of N.J.S.2C:2-6 for any criminal offense committed by the person as a result of the defendant causing, encouraging, intimidating, coercing, soliciting, or recruiting the person to join or actively participate in a criminal street gang. For purposes of this section, the actor shall have the requisite knowledge or purpose if he knows that the person who is solicited or recruited will engage in some form, though not necessarily which form, of criminal activity. "Criminal street gang" shall have the meaning set forth in section 1 of P.L.2007, c.341 (C.2C:33-29).

b. An actor who, in the course of violating subsection a. of this section, threatens another with bodily injury on two or more separate occasions within a 30-day period commits a crime of the third degree.

c. An actor who, in the course of violating subsection a. of this section, inflicts significant bodily injury upon another commits a crime of the second degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a defendant who violates the provisions of this subsection shall be sentenced to a mandatory minimum term of imprisonment of five years during which time the defendant shall not be eligible for parole. The court shall not suspend the sentence or make any other non-custodial disposition of any defendant sentenced pursuant to this subsection.

d. Any defendant convicted of causing, encouraging, intimidating, soliciting, recruiting, coercing, or threatening a person under 18 years of age in violation of subsection a., b., c., or g. of this section shall be guilty of a crime of the second degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a defendant who violates the provisions of this subsection shall be sentenced to a mandatory minimum term of imprisonment of seven years during which time the defendant shall not be eligible for parole. The court shall not suspend the sentence or make any other non-custodial disposition of any defendant sentenced pursuant to this subsection.

e. An actor who violates subsection a. of this section while under official detention commits a crime of the second degree. As used in this subsection, "official detention" means detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 of this Title, or alleged or found to be delinquent; detention for extradition or deportation; mandatory commitment to a residential treatment facility imposed as a condition of special probation pursuant to subsection d. of N.J.S.2C:35-14; or any other detention for law enforcement purposes. "Official detention" also includes supervision of probation or parole, or constraint incidental to release on bail. Notwithstanding the provisions of N.J.S.2C:44-5 or any other provision of law, the court shall order that the sentence imposed upon a violation of this section be served consecutively to the period or periods of detention the actor was serving at the time of the violation.

f. Any defendant convicted of causing, encouraging, intimidating, soliciting, recruiting, coercing, or threatening a person under 18 years of age in violation of subsection c. or e. of this section shall be sentenced by the court to an extended term of imprisonment as set forth in subsection a. of N.J.S.2C:43-7.

g. An actor who in the course of violating subsection a. of this section, does so on school property commits a crime of the third degree.

h. A defendant convicted of causing, encouraging, intimidating, soliciting, recruiting, coercing, or threatening a person under 14 years of age in violation of subsection a., b., c., or g. of this section shall be guilty of a crime of the second degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a defendant who violates the provisions of this subsection shall be sentenced to a mandatory minimum term of imprisonment of 10 years during which time the defendant shall not be eligible for parole. The court shall not suspend the sentence or make any other non-custodial disposition of any defendant sentenced pursuant to this subsection.

Notwithstanding the provisions of N.J.S.2C:1-8, N.J.S.2C:44-5 or any other provision of law, a conviction arising under this section shall not merge with a conviction for any criminal offense that the actor committed, whether committed by the actor’s own conduct or by the conduct of another person for which the actor is legally responsible pursuant to N.J.S.2C:2-6, while involved in criminal street gang related activity, as defined in subsection [h.] a. of [N.J.S.2C:44-3] section 2 of P.L.2007, c.341 (C.2C:33-29), nor shall the conviction for any such offense merge with a conviction pursuant to this section and the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed upon any other such conviction.

(cf: P.L.2013, c.202, s.1)

3. Section 2 of P.L.2007, c.341 (C.2C:33-29) is amended to read as follows:

2. a. A person is guilty of the crime of gang criminality if, while knowingly involved in criminal street gang activity, he commits, attempts to commit, or conspires to commit, whether as a principal or an accomplice, any crime specified in chapters 11 through 18, 20, 33, 35 or 37 of Title 2C of the New Jersey Statutes; N.J.S.2C:34-1; N.J.S.2C:39-3; N.J.S.2C:39-4; section 1 of P.L.1998, c.26 (C.2C:39-4.1); N.J.S.2C:39-5; or N.J.S.2C:39-9. A crime is committed while involved in a criminal street gang related activity if the crime was committed: (1) for the benefit of, at the direction of, or in association with a criminal street gang; or (2) while causing, encouraging, intimidating, coercing, soliciting, or recruiting another to join or actively participate in a criminal street gang in violation of section 1 of P.L.1999, c.160 (C.2C:33-28).

"Criminal street gang" means three or more persons associated in fact. Individuals are associated in fact if: (1) two of the following seven criteria that indicate criminal street gang membership apply: (a) self-proclamation; (b) witness testimony or official statement; (c) written or electronic correspondence; (d) paraphernalia or photographs; (e) tattoos; (f) clothing or colors; (g) any other indicia of street gang activity; and (2) individually or in combination with other members of a criminal street gang, while engaging in gang related activity, have committed or conspired or attempted to commit, within the preceding five years from the date of the present offense, excluding any period of imprisonment, one or more offenses on separate occasions of robbery, carjacking, aggravated assault, assault, aggravated sexual assault, sexual assault, arson, burglary, kidnapping, extortion, tampering with witnesses and informants or a violation of chapter 11, section 3, 4, 5, 6, or 7 of chapter 35 or chapter 39 of Title 2C of the New Jersey Statutes.

b. Grading. Gang criminality is a crime of one degree higher than the most serious underlying crime referred to in subsection a. of this section, except that where the underlying crime is a crime of the first degree, gang criminality is a first degree crime and the defendant, upon conviction, and notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, shall be sentenced to an ordinary term of imprisonment between 15 and 30 years. A sentence imposed upon conviction of the crime of gang criminality shall be ordered to be served consecutively to the sentence imposed upon conviction of any underlying offense referred to in subsection a. of this section.

c. A defendant convicted as an accomplice pursuant to N.J.S.2C:2-6 for a crime committed by a person under 18 years of age who was solicited by the defendant to commit the crime while violating the provisions of section 1 of P.L.1999, c.160 (C.2C:33-28) commits a crime of the first degree and, upon conviction and notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, shall be sentenced to a mandatory minimum term of imprisonment of 15 years during which time the defendant shall be ineligible for parole. The court shall not suspend the sentence or make any other non-custodial disposition of any defendant sentenced pursuant to this subsection.

(cf: P.L.2007, c.341, s.1)

4. (New section) It shall be a crime of the fourth degree for a person convicted of soliciting or recruiting a person under 18 years of age to join or actively participate in a criminal street gang or who is convicted of doing so on school property in violation of subsection d., f., g., or h. of section 1 of P.L.1999, c.160 (C.2C:33-28) to reside within 500 feet of the real property comprising an elementary or secondary school or playground as defined in section 1 of P.L.1999, c.50 (C.52:27D-123.9) unless:

a. the person is required to serve a sentence at a jail, prison, juvenile facility, or other correctional institution or facility which is located within 500 feet of the real property comprising an elementary or secondary school, child care center, or playground;

b. the person is receiving treatment at a mental health facility located within 500 feet of the real property comprising an elementary or secondary school, child care center, or playground;

c. the person established the residence prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill);

d. an elementary or secondary school, child care center, or playground is built or established within 500 feet of the person's existing residence; or

e. the parole board, after considering an individual's housing options, determines that a needs-based exception is required.

5. (New section) a. As used in this section, “primarily consists of contact with children” means 80 percent or more of the actual or official duties or responsibilities include contact with a child.

b. It shall be a crime of the fourth degree for a person convicted of soliciting or recruiting a person under 18 years of age to join or actively participate in a criminal street gang or who is convicted of doing so on school property in violation of subsection d., f., g., or h. of section 1 of P.L.1999, c.160 (C.2C:33-28) to volunteer or be employed at a job which primarily consists of contact with children.

c. It shall be a crime of the fourth degree to knowingly hire or provide a volunteer position to a person convicted of soliciting or recruiting a person under 18 years of age to join or actively participate in a criminal street gang in violation of subsection g. of section 1 of P.L.1999, c.160 (C.2C:33-28) for a job or volunteer position which primarily consists of contact with children.

6. This act shall take effect immediately.

STATEMENT

This bill upgrades certain penalties for criminal street gang recruitment and criminality, requires a court to impose a mandatory minimum sentence for certain offenses of criminal street gang recruitment of minors, establishes accomplice liability and imposes residency, employment, and hiring restrictions for certain recruiters.

Current law provides that a defendant is guilty of an offense if it is committed by the defendant’s own conduct, or by the conduct of another person for which the defendant is legally accountable. This bill provides that a defendant will be held accountable for the conduct of another person for a criminal act as an accomplice if the act is committed by a person that the defendant has caused, encouraged, intimidated, coerced, or solicited to commit the act while soliciting or recruiting the person to join or actively participate in a criminal street gang.

Currently, it is a crime of the second degree to solicit, recruit, coerce, or threaten a minor to join or actively participate in a criminal street gang. A person who commits this crime on school property commits a crime of the third degree. A crime of the second degree is punishable by a term of imprisonment of five to 10 years, a fine of up to $150,000, or both. A crime of the third degree is punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both.

The bill requires a person who is convicted of soliciting or recruiting a minor to be sentenced to a mandatory minimum term of imprisonment of seven years during which time the defendant will be ineligible for parole. A person who is convicted of soliciting or recruiting a minor under 14 years of age will be sentenced to a mandatory minimum term of imprisonment of 10 years during which time the defendant will be ineligible for parole. The court is not permitted to suspend the sentence or make any other non-custodial disposition of a defendant sentenced pursuant to these provisions.

The bill’s provisions also require a defendant who inflicts significant bodily injury upon another while soliciting or recruiting a person to join or actively participate in a criminal street gang to be sentenced to a mandatory minimum term of imprisonment of five years during which time the defendant will be ineligible for parole.

The bill also amends the law related to gang criminality. Under current law, a defendant is guilty of the crime of gang criminality if the defendant, whether as a principal or an accomplice, commits certain specified crimes if the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. The bill provides that a defendant will also be guilty of the crime of gang criminality if the crime was committed while causing, encouraging, intimidating, coercing, soliciting, or recruiting another to join or actively participate in a criminal street gang.

The bill further provides that a defendant convicted as an accomplice for a crime committed by a person under 18 years of age who was solicited by the defendant to join a criminal street gang, commits a crime of the first degree and will be sentenced to a mandatory minimum term of imprisonment of 15 years during which time the defendant shall be ineligible for parole. A crime of the first degree is punishable by a term of imprisonment of 10 to 20 years, a fine of up to $200,000, or both.

The bill also provides that a person convicted of soliciting or recruiting a minor to join a criminal street gang, or who is convicted of the offense while on school property, commits a crime of the fourth degree if the person resides within 500 feet of an elementary or secondary school or playground. A person is not subject to these residency restrictions if: the person is required to serve a sentence at a jail, prison, juvenile facility, or other correctional institution or facility which is located within 500 feet of an elementary or secondary school or playground; the person is receiving treatment at a mental health facility located within 500 feet of an elementary or secondary school, child care center, or playground; the person established the residence prior to the effective date of the bill; an elementary or secondary school, child care center, or playground is built or established within 500 feet of the person's existing residence; or the parole board, after considering an individual's housing options, determines that a needs-based exception is required.

The provisions of the bill also provide that a person convicted of soliciting or recruiting a minor, or convicted of doing so on school property, who volunteers or is employed at a job which primarily consists of contact with children commits a crime of the fourth degree. “Primarily consists of contact with children” is defined under the bill to mean that 80 percent or more of the actual or official duties or responsibilities include contact with a child. It also is a crime of the fourth degree under the bill for a person to knowingly hire or provide a volunteer position which primarily consists of contact with children to a person convicted of soliciting or recruiting a minor on school property.

A crime of the fourth degree is punishable by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both.