ASSEMBLY, No. 105

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblyman HOLZAPFEL

An Act concerning AIDS testing and certain sex offenders, amending N.J.S.2C:44-3 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. (New section) a. As used in this act:

    (1) "AIDS" means acquired immune deficiency syndrome as defined by the Centers for Disease Control of the United States Public Health Service.

    (2) "HIV infection" means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

    (3) "HIV test" means any laboratory test or series of tests for any virus, antibody, antigen or etiologic agent thought to cause or to indicate the presence of AIDS.

    (4) "Identifying information" means the name, address, Social Security number, or similar information by which the identity of a person who has or is suspected of having AIDS or HIV infection may be determined with reasonable accuracy either directly or by reference to other publicly available information.

    b. In addition to any other disposition made pursuant to law, any person convicted of aggravated sexual assault or sexual assault shall be required to submit to an HIV test. The prosecuting authority shall inform the defendant and the victim of the results of the test. The court shall make any positive test result a part of the convicted person's criminal history record.

    c. Identifying information may be disclosed by the prosecuting authority or the court to officials of the Department of Corrections or the county jail, but on a need-to-know basis only. Any person possessing identifying information shall otherwise maintain such information in confidence. No identifying information shall be disclosed to any other person except upon an order of a court of competent jurisdiction which is granted pursuant to an application showing good cause therefor. At a good cause hearing the court shall weigh the public interest and need for disclosure against the injury to the person who is the subject of the record. Upon the granting of the order, the court, in determining the extent to which a disclosure of all or any part of a record is necessary, shall impose appropriate safeguards to prevent an unauthorized disclosure.

    2. N.J.S.2C:44-3 is amended to read as follows:

    2C:44-3. Criteria for Sentence of Extended Term of Imprisonment.

    The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if it finds one or more of the grounds specified in this section. The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime, other than a violation of N.J.S.2C:12-1a., N.J.S.2C:33-4 or a violation of section 1 or 2 of P.L.1981, c.282 (C.2C:33-10 or 2C:33-11), to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e. If the grounds specified in subsection d. are found, and the person is being sentenced for commission of any of the offenses enumerated in N.J.S.2C:43-6c. or N.J.S.2C:43-6g., the court shall sentence the defendant to an extended term as required by N.J.S.2C:43-6c. or N.J.S.2C:43-6g., and application by the prosecutor shall not be required. The finding of the court shall be incorporated in the record.

    a. The defendant is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

    b. The defendant is a professional criminal. A professional criminal is a person who committed a crime as part of a continuing criminal activity in concert with two or more persons, and the circumstances of the crime show he has knowingly devoted himself to criminal activity as a major source of livelihood.

    c. The defendant committed the crime as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value the amount of which was unrelated to the proceeds of the crime or he procured the commission of the offense by payment or promise of payment of anything of pecuniary value.

    d. Second offender with a firearm. The defendant is at least 18 years of age and has been previously convicted of any of the following crimes: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, 2C:39-4a., or has been previously convicted of an offense under Title 2A of the New Jersey Statutes which is equivalent of the offenses enumerated in this subsection and he used or possessed a firearm, as defined in 2C:39-1f., in the course of committing or attempting to commit any of these crimes, including the immediate flight therefrom.

    e. The defendant in committing the crime acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.

    f. The defendant is being sentenced for a second or subsequent offense of aggravated sexual assault or sexual assault and knew at the time of the commission of the offense that he had AIDS or HIV infection.

(cf: P.L.1990, c.87, s.4)

    3. This act shall take effect immediately.

STATEMENT

    This bill provides for mandatory AIDS testing of persons convicted of aggravated sexual assault or sexual assault. The defendant and the victim would be informed of the test results. Positive test results would become part of the convicted person's criminal record but could not be disclosed except to persons in the criminal justice system on a need-to-know basis. Any person possessing identifying information would otherwise be required to maintain the information in confidence.

    A person convicted of a second or subsequent offense of aggravated sexual assault or sexual assault who knew at the time of the commission of the offense that he had AIDS or HIV infection could be sentenced to an extended term. Aggravated sexual assault is a crime of the first degree, punishable by a term of imprisonment of between 10 to 20 years, a fine of up to $100,000, or both. An extended term imposed for a first degree crime is 20 years to life. Sexual assault is a crime of the second degree, punishable by a term of imprisonment of five to 10 years, a fine of up to $100,000, or both. An extended term imposed for a second degree crime is 10 to 20 years.

Provides that convicted sex offenders be tested for AIDS and that repeat offenders who knew they were infected at the time they committed the offense may be sentenced to an extended term of imprisonment.