ASSEMBLY, No. 454

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblyman ROMA

An Act concerning restitution and revising 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:1-2 is amended to read as follows:

    2C:1-2. Purposes; Principles of Construction. a. The general purposes of the provisions governing the definition of offenses are:

    (1) To forbid, prevent, and condemn conduct that unjustifiably and inexcusably inflicts or threatens serious harm to individual or public interests;

    (2) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection;

    (3) To subject to public control persons whose conduct indicates that they are disposed to commit offenses;

    (4) To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction;

    (5) To differentiate on reasonable grounds between serious and minor offenses; and

    (6) To define adequately the act and mental state which constitute each offense, and limit the condemnation of conduct as criminal when it is without fault.

    b. The general purposes of the provisions governing the sentencing of offenders are:

    (1) To prevent and condemn the commission of offenses;

    (2) To promote the correction and rehabilitation of offenders;

    (3) To insure the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed confinement of offenders when required in the interest of public protection;

    (4) To safeguard offenders against excessive, disproportionate or arbitrary punishment;

    (5) To give fair warning of the nature of the sentences that may be imposed on conviction of an offense;

    (6) To differentiate among offenders with a view to a just individualization in their treatment; [and]

    (7) To advance the use of generally accepted scientific methods and knowledge in sentencing offenders[.]; and

    (8) To promote reparation to victims for harm suffered as a result of criminal conduct.

    c. The provisions of the code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this section and the special purposes of the particular provision involved. The discretionary powers conferred by the code shall be exercised in accordance with the criteria stated in the code and, insofar as such criteria are not decisive, to further the general purposes stated in this section.

    d. Nothing contained in this code shall limit the right of a defendant and, subject only to the federal and State constitutions, the right of the State to appeal or seek leave to appeal pursuant to law and Rules of Court.

(cf: P.L.1979, c.178, s.2)

    2. N.J.S.2C:1-14 is amended to read as follows:

    2C:1-14. General Definitions. In this code, unless a different meaning plainly is required:

    a. "Statute" includes the Constitution and a local law or ordinance of a political subdivision of the State;

    b. "Act" or "action" means a bodily movement whether voluntary or involuntary;

    c. "Omission" means a failure to act;

    d. "Conduct" means an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions;

    e. "Actor" includes, where relevant, a person guilty of an omission;

    f. "Acted" includes, where relevant, "omitted to act";

    g. "Person," "he," and "actor" include any natural person and, where relevant, a corporation or an unincorporated association;

    h. "Element of an offense" means (1) such conduct or (2) such attendant circumstances or (3) such a result of conduct as

    (a) Is included in the description of the forbidden conduct in the definition of the offense;

    (b) Establishes the required kind of culpability;

    (c) Negatives an excuse or justification for such conduct;

    (d) Negatives a defense under the statute of limitations; or

    (e) Establishes jurisdiction or venue;

    i. "Material element of an offense" means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (1) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (2) the existence of a justification or excuse for such conduct;

    j. "Reasonably believes" or "reasonable belief" designates a belief the holding of which does not make the actor reckless or criminally negligent[.];

    k. "Offense" means a crime, a disorderly persons offense or a petty disorderly persons offense unless a particular section in this code is intended to apply to less than all three[.];

    l. "County Court" shall mean the Superior Court after December 7, 1978[.];

    m. "Amount involved," "benefit," and other terms of value. Where it is necessary in this act to determine value, for purposes of fixing the degree of an offense, that value shall be the fair market value at the time and place of the operative act[.];

    n. "Victim" means any person who suffers physical, financial or emotional injury caused by the conduct of the offender;

    o. "Gain" means the amount of money or value of property derived by the offender from his criminal conduct;

    p. "Loss" means the amount of value separated from the victim or the victim's family incurred as a result of the conduct constituting the offense including medical expenses and related costs, services rendered in accordance with a method of healing recognized by the laws of the State^, funeral and burial expenses, lost income and property loss or damage.

(cf: P.L.1979, c.178, s.8)

    3. N.J.S.2C:43-3 is amended to read as follows:

    2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

    a. $100,000.00, when the conviction is of a crime of the first or second degree;

    b. $7,500.00, when the conviction is of a crime of the third or fourth degree;

    c. $1,000.00, when the conviction is of a disorderly persons offense;

    d. $500.00, when the conviction is of a petty disorderly persons offense;

    e. Any higher amount equal to double the pecuniary gain to the offender or loss to the victim caused by the conduct constituting the offense by the offender. In such case the court shall make a finding as to the amount of the gain or loss, and if the record does not contain sufficient evidence to support such a finding the court may conduct a hearing upon the issue. [For purposes of this section the terms "gain" means the amount of money or the value of property derived by the offender and "loss" means the amount of value separated from the victim;]

    f. Any higher amount specifically authorized by another section of this code or any other statute.

    g. In the case of violations of chapter 35, any higher amount equal to three times the street value of the controlled dangerous substance or controlled substance analog. The street value for purposes of this section shall be determined pursuant to subsection e. of N.J.S.2C:44-2.

    A person who has been convicted of an offense in Superior Court shall be ordered to pay restitution to the victim or victim's family where the victim has suffered a loss caused by the conduct constituting the offense.

    The restitution order shall be mandatory unless waived by the victim or victim's representative.

    In property cases, mandatory restitution shall be limited to the value of the property unlawfully taken or damaged. In cases involving injury to a person, mandatory restitution shall include such items as medical expenses and related costs, services rendered in accordance with a method of healing recognized by the laws of this State, reasonable funeral and burial expenses and lost income up to any definite date ascertainable at the time of sentencing; mandatory restitution shall not include compensation for such items as valuation of life or loss or impairment of the function of any bodily member or organ, loss of future earnings not readily ascertainable at the time of sentencing, pain and suffering or loss of consortium.

    Except where the amount of restitution is not in dispute between the victim and defendant, the amount of restitution payable shall be determined by the court at sentencing. The amount of restitution due the victim under this section shall be the actual amount of compensable loss caused by the defendant's actions and shall not be limited by a reduction in charges pursuant to a plea agreement. Proof may be by affidavit, which the victim may submit through the local Office of Victim-Witness Advocacy, describing the loss caused by the defendant's conduct. The defendant may submit to the court an affidavit or affidavits on this subject. In making its finding, the court may also take judicial notice of any evidence adduced at the trial, plea hearing or other court proceeding and may consider the presentence report. The presentence report shall identify the source of the information bearing upon the issue of restitution and indicate how the amount of loss was calculated. If the record, including the presentence report and any submitted affidavits, does not contain a sufficient basis to support a finding of the amount of restitution due the victim or victim's family, the court may take evidence upon the issue.

    The court shall file a copy of the restitution order with the clerk of the Superior Court who shall enter upon the record of docketed judgments the name of the convicted person as judgment debtor, and of the victim as judgment creditor, a statement that the restitution is ordered under this section, the amount of restitution, and the date of the order. This entry shall have the same force as a judgment docketed in the Superior Court. If restitution to more than one victim is set at the same time, the court shall set priorities of payment to the victims.

    The ordering of restitution pursuant to this section shall not operate as a bar to the seeking of civil recovery by the victim based on the incident underlying the criminal conviction. Restitution ordered under this section is to be in addition to any civil remedy which a victim may possess, but any amount due the victim under any civil remedy shall be reduced by the amount ordered under this section and the initial restitution judgment shall remain in full force and effect.

    The restitution ordered paid to the victim shall not exceed his loss. Any restitution imposed on a person shall be in addition to any fine which may be imposed pursuant to this section.

(cf: P.L.1987, c.106, s.10)

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

    2C:43-4. Penalties Against Corporations; Forfeiture of Corporate Charter or Revocation of Certificate Authorizing Foreign Corporation to do Business in the State. a. The court may suspend the imposition of sentence of a corporation which has been convicted of an offense or may sentence it to pay a fine of up to three times the fine provided for in [section] N.J.S.2C:43-3 [or make] in addition to any restitution [authorized] required by [section] N.J.S.2C:43-3.

    b. When a corporation is convicted of an offense or a high managerial agent of a corporation, as defined in [section] N.J.S.2C:2-7 is convicted of an offense committed in conducting the affairs of the corporation, the court may request the Attorney General to institute appropriate proceedings to dissolve the corporation, forfeit its charter, revoke any franchises held by it, or to revoke the certificate authorizing the corporation to conduct business in this State.

(cf: N.J.S.2C:43-4)

    5. N.J.S.2C:43-13 is amended to read as follows:

    2C:43-13. Supervisory Treatment Procedure. a. Agreement. The terms and duration of the supervisory treatment shall be set forth in writing, signed by the prosecutor and agreed to and signed by the participant. If the participant is represented by counsel, defense counsel shall also sign the agreement. Each order of supervisory treatment shall be filed with the county clerk.

    In every case in which the victim has suffered a loss as a result of the conduct of the participant, the participant shall be required, (as part of the terms of the agreement, to make restitution to the victim or victim's family. The assignment judge or his designee shall make a finding as to the amount of restitution, as under N.J.S.2C:43-3.

    b. Charges, During a period of supervisory treatment the charge or charges on which the participant is undergoing supervisory treatment shall be held in an inactive status pending termination of the supervisory treatment pursuant to subsection d. or e. of this section.

    c. Period of treatment. Supervisory treatment may be for such period, as determined by the designated judge or the assignment judge, not to exceed one year, provided, however, that the period of supervisory treatment may be shortened or terminated as the program director may determine with the consent of the prosecutor and the approval of the court.

    d. Dismissal. Upon completion of supervisory treatment, and with the consent of the prosecutor, the complaint, indictment or accusation against the participant may be dismissed with prejudice.

    e. Violation of conditions. Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of participant from the supervisory treatment program, the charges against the participant may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced.

    f. Evidence. No statement or other disclosure by a participant undergoing supervisory treatment made or disclosed to the person designated to provide such supervisory treatment shall be disclosed, at any time, to the prosecutor in connection with the charge or charges against the participant, nor shall any such statement or disclosure be admitted as evidence in any civil or criminal proceeding against the participant. Nothing provided herein, however, shall prevent the person providing supervisory treatment from informing the prosecutor, or the court, upon request or otherwise as to whether or not the participant is satisfactorily responding to supervisory treatment.

    g. Delay. No participant agreeing to undergo supervisory treatment shall be permitted to complain of a lack of speedy trial for any delay caused by the commencement of supervisory treatment.

(cf: P.L.1979, c.178, s.89)

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

    2C:44-2. Criteria for Imposing Fines and Restitutions. a. The court may sentence a defendant to pay a fine [or make restitution, or both,]in addition to a sentence of imprisonment or probation if:

    (1) The defendant has derived a pecuniary gain from the offense; or

    (2) The court is of opinion that a fine [or restitution, or both,]is specially adapted to deterrence of the type of offense involved or to the correction of the offender.

    b. The court may sentence a defendant to pay a fine [or make restitution, or both,]if the defendant is able, or given a fair opportunity to do so, will be able to pay the fine [or make restitution, or both]. The court may sentence a defendant to pay a fine only if the fine will not prevent the defendant from making restitution to the victim of the offense.

    c. In determining the amount of the fine and method of payment of a fine or restitution, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

    d. Nonpayment. When a defendant is sentenced to pay a fine or make restitution, or both, the court shall not impose at the same time an alternative sentence to be served in the event that the fine or restitution is not paid. The response of the court to nonpayment shall be determined only after the fine or restitution has not been paid, as provided in [section] N.J.S.2C:46-2.

    e. Whenever the maximum potential fine which may be imposed on a conviction for an offense defined in chapter 35 (Controlled Dangerous Substances) depends on the street value of the controlled dangerous substance or controlled substance analog involved and the court intends to impose a fine in excess of the maximum ordinary fine applicable to the offense for which defendant was convicted, and where the fine has not been agreed to pursuant to the provisions of N.J.S.2C:35-12, the court at the time of sentence shall determine the street value at the time and place of the offense based on the amount and purity of the controlled dangerous substance or controlled substance analog involved. The sentencing court's finding as to the street value may be based on expert opinion in the form of live testimony or by affidavit, or by such other means as the court deems appropriate. The court's finding as to street value shall not be subject to modification by an appellate court except upon a showing that the finding was totally lacking in support on the record or was arbitrary or capricious.

(cf: P.L.1987, c.106, s.15)

    7. N.J.S.2C:45-1 is amended to read as follows:

    2C:45-1. Conditions of Suspension or Probation.

    a. When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court.

    b. The court, as a condition of its order, may require the defendant:

    (1) To support his dependents and meet his family responsibilities;

    (2) To find and continue in gainful employment;

    (3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose;

    (4) To pursue a prescribed secular course of study or vocational training;

    (5) To attend or reside in a facility established for the instruction, recreation or residence of persons on probation;

    (6) To refrain from frequently unlawful or disreputable places or consorting with disreputable persons;

    (7) Not to have in his possession any firearm or other dangerous weapon unless granted written permission;

    (8) To make restitution [of the fruits of his offense, in an amount he can afford to pay, for the loss or damage caused thereby] ordered pursuant to 2C:43-3;

    (9) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment;

    (10) To report as directed to the court or the probation officer, to permit the officer to visit his home, and to answer all reasonable inquiries by the probation officer;

    (11) To pay a fine;

    (12) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience;

    (13) To require the performance of community-related service[:];

    (14) To pay a penalty assessment pursuant to section 2 of P.L.1979, c.396 (C.2C:43-3.1).

    c. When the court sentences a person who has been convicted of a crime to be placed on probation, it may require him to serve a term of imprisonment not exceeding 364 days as an additional condition of its order. When the court sentences a person convicted of a disorderly persons offense to be placed on probation, it may require him to serve a term of imprisonment not exceeding 90 days as an additional condition of its order. In imposing a term of imprisonment pursuant to this subsection, the sentencing court shall specifically place on the record the reasons which justify the sentence imposed. The term of imprisonment imposed hereunder shall be treated as part of the sentence, and in the event of a sentence of imprisonment upon the revocation of probation, the term of imprisonment served hereunder shall be credited toward service of such subsequent sentence. A term of imprisonment imposed under this section shall be governed by the "Parole Act of 1979," P.L.1979, c.441 (C.30:4-123.45 et seq.)

    Whenever a person is serving a term of parole as a result of a sentence of incarceration imposed as a condition of probation, supervision over that person shall be maintained pursuant to the provisions of the law governing parole. Upon termination of the period of parole supervision provided by law, the county probation department shall assume responsibility for supervision of the person under sentence of probation. Nothing contained in this section shall prevent the sentencing court from at any time proceeding under the provisions of this chapter against any person for a violation of probation.

    d. The defendant shall be given a copy of the terms of his probation or suspension of sentence and any requirements imposed pursuant to this section, stated with sufficient specificity to enable him to guide himself accordingly. The defendant shall acknowledge, in writing, his receipt of these documents and his consent to their terms.

(cf: P.L.1983, c.124, s.2)

    8. This act shall take effect immediately and shall be applicable to offenses committed after the effective date.

STATEMENT

    This bill provides for mandatory restitution by criminal defendants to the victim or victim's family. Only the victim or his representative may waive this requirement. In property cases restitution is limited to the value of the property taken or damaged. In cases involving personal injuries restitution shall include medical expenses, funeral and burial expenses, and lost income. Items such as valuation of life or loss or impairment of the function of an organ or limb, loss of future earnings, pain and suffering and loss of consortium are not included.

    The amount of restitution shall not be limited by a reduction in charges or pursuant to a plea bargain.

    The order for restitution shall be docketed in the Superior Court under the name of the defendant as judgement debtor and the victim as judgment creditor.

    Restitution shall be in addition to any civil remedy available to a victim, but any amount recoverable in a civil proceeding shall be reduced by the amount of restitution ordered pursuant to this bill.

Requires mandatory restitution for crime victims.