S191

SENATE, No. 191

STATE OF NEW JERSEY

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Senator LESNIAK

An Act concerning the crime of being a leader of a narcotics trafficking network and amending N.J.S.2C:35-3.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:35-3 is amended to read as follows:

2C:35-3. Leader of Narcotics Trafficking Network

a. A person is a leader of a narcotics trafficking network if he conspires with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this State methamphetamine, lysergic acid diethylamide, phencyclidine or any controlled dangerous substance classified in Schedule I or II, or any controlled substance analog thereof. Leader of narcotics trafficking network is a crime of the first degree and upon conviction thereof[, except as may be provided by N.J.S.2C:35-12,]a person shall be sentenced to an ordinary term of life imprisonment during which the person must serve 25 years before being eligible for parole or to death as provided in subsection b. of this section. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, the court may also impose a fine not to exceed $500,000.00 or five times the street value of the controlled dangerous substance or controlled substance analog involved, whichever is greater.

Notwithstanding the provisions of N.J.S.2C:1-8, a conviction of leader of narcotics trafficking network shall not merge with the conviction for any offense which is the object of the conspiracy. Nothing contained in this section shall prohibit the court from imposing an extended term pursuant to N.J.S.2C:43-7; nor shall this section be construed in any way to preclude or limit the prosecution or conviction of any person for conspiracy under N.J.S.2C:5-2, or any prosecution or conviction under N.J.S.2C:35-4 (maintaining or operating a CDS production facility), N.J.S.2C:35-5 (manufacturing, distributing or dispensing), N.J.S.2C:35-6 (employing a juvenile in a drug distribution scheme), N.J.S.2C:35-9 (strict liability for drug induced death), N.J.S.2C:41-2 (racketeering activities) or subsection g. of N.J.S.2C:5-2 (leader of organized crime).

It shall not be necessary in any prosecution under this section for the State to prove that any intended profit was actually realized. The trier of fact may infer that a particular scheme or course of conduct was undertaken for profit from all of the attendant circumstances, including but not limited to the number of persons involved in the scheme or course of conduct, the actor's net worth and his expenditures in relation to his legitimate sources of income, the amount or purity of the specified controlled dangerous substance or controlled substance analog involved, or the amount of cash or currency involved.

It shall not be a defense to a prosecution under this section that such controlled dangerous substance or controlled substance analog was brought into or transported in this State solely for ultimate distribution or dispensing in another jurisdiction; nor shall it be a defense that any profit was intended to be made in another jurisdiction.

b. Any person convicted under subsection a. may be sentenced to death as provided hereinafter:

(1) The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or sentenced pursuant to the provisions of subsection a. of this section.

Where the defendant has been tried by a jury, the proceeding shall be conducted by the judge who presided at the trial and before the jury which determined the defendant's guilt, except that, for good cause, the court may discharge that jury and conduct the proceeding before a jury empaneled for the purpose of the proceeding. Where the defendant has entered a plea of guilty or has been tried without a jury, the proceeding shall be conducted by the judge who accepted the defendant's plea or who determined the defendant's guilt and before a jury empaneled for the purpose of the proceeding. On motion of the defendant and with consent of the prosecuting attorney the court may conduct a proceeding without a jury. Nothing in this subsection shall be construed to prevent the participation of an alternate juror in the sentencing proceeding if one of the jurors who rendered the guilty verdict becomes ill or is otherwise unable to proceed before or during the sentencing proceeding.

(2) (a) At the proceeding, the State shall have the burden of establishing beyond a reasonable doubt the existence of any aggravating factors set forth in paragraph (4) of this subsection. The defendant shall have the burden of producing evidence of the existence of any mitigating factors set forth in paragraph (5) of this subsection but shall not have a burden with regard to the establishment of a mitigating factor.

(b) The admissibility of evidence offered by the State to establish any of the aggravating factors shall be governed by the rules governing the admission of evidence at criminal trials. The defendant may offer, without regard to the rules governing the admission of evidence at criminal trials, reliable evidence relevant to any of the mitigating factors. If the defendant produces evidence in mitigation which would not be admissible under the rules governing the admission of evidence at criminal trials, the State may rebut that evidence without regard to the rules governing the admission of evidence at criminal trials.

(c) Evidence admitted at the trial, which is relevant to the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection, shall be considered without the necessity of reintroducing that evidence at the sentencing proceeding; provided that the fact finder at the sentencing proceeding was present as either the fact finder or the judge at the trial.

(d) The State and the defendant shall be permitted to rebut any evidence presented by the other party at the sentencing proceeding and to present argument as to the adequacy of the evidence to establish the existence of any aggravating or mitigating factor.

(e) Prior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor, the prosecuting attorney shall give notice to the defendant of the aggravating factors which he intends to prove in the proceeding.

(f) Evidence offered by the State with regard to the establishment of a prior conviction pursuant to paragraph (4)(a) of this subsection may include the identity and age of the victim, the manner of death in cases of murder and manslaughter and the relationship, if any, of the victim to the defendant.

(3) The jury or, if there is no jury, the court shall return a special verdict setting forth in writing the existence or nonexistence of each of the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection. If any aggravating factor is found to exist, the verdict shall also state whether it outweighs beyond a reasonable doubt any one or more mitigating factors.

(a) If the jury or the court finds that any aggravating factors exist and that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating factors, the court shall sentence the defendant to death.

(b) If the jury or the court finds that no aggravating factors exist, or that all of the aggravating factors which exist do not outweigh all of the mitigating factors, the court shall sentence the defendant pursuant to subsection a.

(4) The aggravating factors which may be found by the jury or the court are:

(a) The defendant has been convicted, at any time, of murder, manslaughter, aggravated assault, sexual assault, kidnapping or carjacking. For purposes of this section, a conviction shall be deemed final when sentence is imposed and may be used as an aggravating factor regardless of whether it is on appeal;

(b) The defendant is a persistent offender as defined in subsection a. of N.J.S.2C:44-3; or

(5) The mitigating factors which may be found by the jury or the court are:

(a) The age of the defendant at the time of the crime;

(b) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect, but not to a degree sufficient to constitute a defense to prosecution;

(d) The defendant has no significant history of prior criminal activity;

(e) The defendant rendered substantial assistance to the State in the prosecution of another person; or

(f) Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense.

c. The sentencing proceeding set forth in subsection b. of this section shall not be waived by the prosecuting attorney.

d. Prior to the jury's sentencing deliberations, the trial court shall inform the jury of the sentence which may be imposed pursuant to subsection a. of this section on the defendant if the defendant is not sentenced to death. The jury shall also be informed that a failure to reach a unanimous verdict shall result in sentencing by the court pursuant to subsection a.

e. A juvenile who has been tried as an adult and convicted of being a leader of a narcotics trafficking network shall not be sentenced pursuant to the provisions of subsection b. but shall be sentenced pursuant to the provisions of subsection a. of this section.

f. In a sentencing proceeding conducted pursuant to this section, no evidence shall be admissible concerning the method or manner of execution which would be imposed on a defendant sentenced to death.

g. Every judgment of conviction which results in a sentence of death under this section shall be appealed, pursuant to the Rules of the Court, to the Supreme Court.

(cf: P.L.1987, c.106, s.1)

2 . This act shall take effect immediately.

STATEMENT

This bill would permit the imposition of the death penalty in certain circumstances on persons convicted of the crime of being a leader of a narcotics trafficking network. The bill provides for a separate post-conviction proceeding to determine whether the death penalty should be imposed on a person convicted of being the leader of a narcotics trafficking network. The procedures to be followed during this sentencing proceeding are modeled on the procedures presently set forth in N.J.S.2C:11-3 governing the imposition of the death penalty on those persons convicted of murder.

During this sentencing proceeding, the following aggravating factors set forth in the bill are to be considered: the defendant was previously convicted of murder, manslaughter, kidnapping, aggravated assault, sexual assault or carjacking; the defendant is a persistent offender or the defendant employed a juvenile in the narcotics distribution scheme. The mitigating factors set forth in the bill are: the defendant's age; the defendant's mental capacity; whether the defendant was under unusual and substantial duress; the defendant's lack of significant history of prior criminal activity; whether the defendant cooperated with law enforcement officials and any other factor relevant to the defendant's character or record.

If the jury determines that one or more aggravating factors exist and that the aggravating factors outweigh any mitigating factors beyond a reasonable doubt, the death penalty would be imposed. If no aggravating factor is found, if the mitigating factors are found to outweigh the aggravating factors or if the jury is unable to reach an unanimous verdict, the present penalty of life imprisonment with no eligibility for parole for 25 years would be imposed.

Any sentence of death imposed upon a person convicted of being a leader of a narcotics trafficking network would be subject to review by the Supreme Court.

Permits the imposition of the death penalty on persons convicted of being a leader of narcotics trafficking network in certain circumstances.