[First Reprint]

SENATE, No. 1369

 

STATE OF NEW JERSEY

 

INTRODUCED JUNE 24, 1996

 

 

By Senators KOSCO and GIRGENTI

 

 

An Act concerning telecommunications crime and revising various 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: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.

    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] 1and1 documents 1[or data]1, 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.

    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.

(cf: P.L.1984, c.184, s.1)

 

    2. N.J.S.2C:20 -2 is amended to read as follows:

    2C:20-2. Consolidation of Theft Offenses; Grading; Provisions Applicable to Theft Generally. a. Consolidation of Theft Offenses. Conduct denominated theft 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 may be supported by evidence that it was committed in any manner that would be theft 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; or

    (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 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 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;

    (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; [or]

    (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 ;or

    (j) The property stolen consists of an access device or a defaced access device.

    (3) Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00. If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense.

    (4) The amount involved in a theft 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 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 was from the actor's spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together.

(cf: P.L.1995, c.20, s.5)

 

    1[3. N.J.S.2C:20-3 is amended to read as follows:

    2C:20-3. Theft by Unlawful Taking or Disposition.

    a. Movable property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another, including but not limited to an access device or a defaced access device, with purpose to deprive him thereof.

    b. Immovable property. A person is guilty of theft if he unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto.

(cf: P.L.1978, c.95, s.2C:20-3)]1

 

    1[4. N.J.S.2C:20-4 is amended to read as follows:

    2C:20-4. Theft by Deception.

    A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:

    a. Creates or reinforces a false impression, including false impressions as to identity, law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

    b. Prevents another from acquiring information which would affect his judgment of a transaction; or

    c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

    The term "deceive" does not, however, include falsity as to matters having no pecuniary significance, or puffing or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.

(cf: P.L.1978, c.95, s.2C:20-4)]1

 

    1[5.] 3.1 N.J.S.2C:20-7 is amended to read as follows:

    2C:20-7. Receiving Stolen Property.

    a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another 1[, including but not limited to an access device or defaced access device,]1 knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.

    b. Presumption of knowledge. The requisite knowledge or belief is presumed in the case of a person who:

    (1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or

    (2) Has received stolen property in another transaction within the year preceding the transaction charged; or

    (3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it ;or

    (4) Is found in possession of two or more 1[access devices or]1 defaced access devices.

(cf: P.L.1981, c.290, s.19)

 

    1[6.] 4.1 N.J.S.2C:20-8 is amended to read as follows:

    2C:20-8. Theft of Services.

    a. A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means, including but not limited to mechanical or electronic devices or through fraudulent statements, to avoid payment for the service. "Services" include labor or professional service; transportation, telephone, telecommunications, electric, water, gas, cable television, or other public service; accommodation in hotels, restaurants or elsewhere; entertainment; admission to exhibitions; use of vehicles or other movable property. Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.

    b. A person commits theft if, having control over the disposition of services of another, to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.

    c. Any person who, without permission and for the purpose of obtaining electric current, gas or water with intent to defraud any vendor of electricity, gas or water or a person who is furnished by a vendor with electric current, gas or water:

    (1) Connects or causes to be connected by wire or any other device with the wires, cables or conductors of any such vendor or any other person; or

    (2) Connects or disconnects the meters, pipes or conduits of such vendor or any other person or in any other manner tampers or interferes with such meters, pipes or conduits, or connects with such meters, pipes or conduits by pipes, conduits or other instruments--is guilty of a disorderly persons offense.

    The existence of any of the conditions with reference to meters, pipes, conduits or attachments, described in this subsection, is presumptive evidence that the person to whom gas, electricity or water is at the time being furnished by or through such meters, pipes, conduits or attachments has, with intent to defraud, created or caused to be created with reference to such meters, pipes, conduits or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with gas, electricity or water for less than 31 days or until there has been at least one meter reading.

    A violation of this subsection shall be deemed to be a continuing offense as long as the conditions described in this subsection exist.

    d. Any person who, without permission or authority, connects or causes to be connected by wires or other devices, any meter erected or set up for the purpose of registering or recording the amount of electric current supplied to any customer by any vendor of electricity within this State, or changes or shunts the wiring leading to or from any such meter, or by any device, appliance or means whatsoever tampers with any such meter so that the meter will not measure or record the full amount of electric current supplied to such customer, is guilty of a disorderly persons offense.

    The existence of any of the conditions with reference to meters or attachments described in this subsection is presumptive evidence that the person to whom electricity is at the time being furnished by or through such meters or attachments has, with intent to defraud, created or caused to be created with reference to such meters or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with electricity for less than 31 days or until there has been at least one meter reading.

    A violation of this subsection shall be deemed to be a continuing offense as long as the conditions described in this subsection exist.

    e. Any person who, with intent to obtain cable television service without payment, in whole or in part, of the lawful charges therefor, or with intent to deprive another of the lawful receipt of such service, damages, cuts, tampers with, installs, taps or makes any connection with, or who displaces, removes, injures or destroys any wire, cable, conduit, apparatus or equipment of a cable television company operating a CATV system; or who, without authority of a cable television company, intentionally prevents, obstructs or delays, by any means or contrivance, the sending, transmission, conveyance, distribution or receipt of programming material carried by equipment of the cable television company operating a CATV system, is a disorderly person.

    The existence of any of the conditions with reference to wires, cables, conduits, apparatus or equipment described in this subsection is presumptive evidence that the person to whom cable television service is at the time being furnished has, with intent to obtain cable television service without authorization or compensation or to otherwise defraud, created or caused to be created the condition so existing.

    f. Any person who purposely or knowingly manufactures, constructs, sells, offers for sale, distributes or installs any equipment, device or instrument designed or intended to facilitate the interception, decoding or receipt of any cable television service with intent to obtain such service and avoid the lawful payment of the charges therefor to the provider, in whole or in part, is a disorderly person.

    Any communications paraphernalia prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.

    g. Any person who purposely or knowingly maintains or possesses any equipment, device or instrument of the type described in subsection f. of this section or maintains or possesses any equipment, device or instrument actually used to facilitate the interception, decoding or receipt of any cable television service with intent to obtain such service and avoid the lawful payment, in whole or in part, of the charges therefor to the provider, is a disorderly person.

    Any communications paraphernalia prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.

    h. Any person who, with the intent of depriving a telephone company of its lawful charges therefor, purposely or knowingly makes use of any telecommunications service by means of the unauthorized use of any electronic or mechanical device or connection, or by the unauthorized use of billing information, or by the use of a computer, computer equipment or computer software, or by the use of misidentifying or misleading information given to a representative of the telephone company is guilty of a [disorderly persons offense] crime of the third degree.

    The existence of any of the conditions with reference to electronic or mechanical devices, computers, computer equipment or computer software described in this subsection is presumptive evidence that the person to whom telecommunications service is at the time being furnished has, with intent to obtain telecommunications service without authorization or compensation or to otherwise defraud, created or caused to be created the condition so existing.

    i. Any person who purposely or knowingly manufactures, constructs, sells, offers for sale, distributes, installs, or otherwise provides any service, equipment, device, computer, computer equipment, computer software or instrument designed or intended to facilitate the receipt of any telecommunications service and avoid the lawful payment of the charges therefor to the provider, in whole or in part, is guilty of a [disorderly persons offense] crime of the third degree.

    Any communications paraphernalia, computer, computer equipment or computer software prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.

    j. Any person who purposely or knowingly maintains or possesses any equipment, device, computer, computer equipment, computer software or instrument of the type described in subsection i. of this section, or maintains or possesses any equipment, device, computer, computer equipment, computer software or instrument actually used to facilitate the receipt of any telecommunications service with intent to obtain such service and avoid the lawful payment, in whole or in part, of the charges therefor to the provider, is guilty of a [disorderly persons offense] crime of the third degree.

    Any communications paraphernalia, computer, computer equipment or computer software prohibited under this subsection shall be subject to forfeiture and may be seized by the State or any law enforcement officer in accordance with the provisions of N.J.S.2C:64-1 et seq.

    k. In addition to any other disposition authorized by law, and notwithstanding the provisions of N.J.S.2C:43-3, every person who violates this section shall be sentenced to make restitution to the vendor and to pay a minimum fine of $500.00 for each offense. In determining the amount of restitution, the court shall consider the costs expended by the vendor, including but not limited to the repair and replacement of damaged equipment, the cost of the services unlawfully obtained, investigation expenses, and attorney fees.

    l. The presumptions of evidence applicable to offenses defined in subsections c., d., e. and h. of this section shall also apply in any prosecution for theft of services brought pursuant to the provisions of subsection a. or b. of this section.

(cf: P.L.1989, c.112, s.1)

 

    1[7.] 5.1 N.J.S.2C:21-1 is amended to read as follows:

    2C:21-1. Forgery and Related Offenses.

    a. Forgery. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

    (1) Alters or changes any writing of another without his authorization;

    (2) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act or of a fictitious person, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or

    (3) Utters any writing which he knows to be forged in a manner specified in paragraph (1) or (2).

    "Writing" includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, access devices, and other symbols of value, right, privilege, or identification.

    b. Grading of forgery. Forgery is a crime of the third degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments, certificates or licenses issued by the government, or part of an issue of stock, bonds or other instruments representing interest in or claims against any property or enterprise, or an access device.

    Otherwise forgery is a crime of the fourth degree.

    c. Possession of forgery devices. A person is guilty of possession of forgery devices, a crime of the third degree, when with purpose to use, or to aid or permit another to use the same for purposes of forging written instruments, including access devices, he makes or possesses any device, apparatus, equipment, computer, computer equipment, computer software or article specially designed or adapted to such use.

(cf: P.L.1981, c.290, s.20)

 

    1[8. N.J.S.2C:41-1 is amended to read as follows:

    2C:41-1. Definitions.

    For purposes of this section and N.J.S.2C:41-2 through N.J.S.2C:41-6:

    a. "Racketeering activity" means (1) any of the following crimes which are crimes under the laws of New Jersey or are equivalent crimes under the laws of any other jurisdiction:

    (a) murder

    (b) kidnapping

    (c) gambling

    (d) promoting prostitution

    (e) obscenity

    (f) robbery

    (g) bribery

    (h) extortion

    (i) criminal usury

    (j) violations of Title 33 of the Revised Statutes

    (k) violations of Title 54A of the New Jersey Statutes and Title 54 of the Revised Statutes

    (l) arson

    (m) burglary

    (n) theft and related crimes

    (o) forgery and fraudulent practices

    (p) fraud in the offering, sale or purchase of securities

    (q) alteration of motor vehicle identification numbers

    (r) unlawful manufacture, purchase, use or transfer of firearms

    (s) unlawful possession or use of destructive devices or explosives

    (t) violation of sections 112 through 116 inclusive of the "Casino Control Act," P.L.1977, c.110 (C.5:12-112 through 5:12-116)

    (u) violation of N.J.S.2C:35-5 except possession of 84 grams or less of marijuana or of N.J.S.2C:35-4 or N.J.S.2C:35-6

    (v) violation of subsection b. of N.J.S.2C:24-4 except for subparagraph (b) of paragraph (5) of subsection b.

    (w) violations of subsection h., i. or j. of N.J.S.2C:20-8 or violations of section 10 of P.L. c. (C. )(now pending before the Legislature as section 10 of this bill),

    (2) any conduct defined as "racketeering activity" under Title 18, U.S.C. { 1961(1)(A), (B) and (D).

    b. "Person" includes any individual or entity or enterprise as defined herein holding or capable of holding a legal or beneficial interest in property.

    c. "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business or charitable trust, association, or other legal entity, 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.

    d. "Pattern of racketeering activity" requires

    (1) Engaging in at least two incidents of racketeering conduct one of which shall have occurred after the effective date of this act and the last of which shall have occurred within 10 years (excluding any period of imprisonment) after a prior incident of racketeering activity; and

    (2) A showing that the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants or victims or methods of commission or are otherwise interrelated by distinguishing characteristics and are not isolated incidents.

    e. "Unlawful debt" means a debt

    (1) Which was incurred or contracted in gambling activity which was in violation of the law of the United States, a state or political subdivision thereof; or

    (2) Which is unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury.     f. "Documentary material" includes any book, paper, document, writing, drawing, graph, chart, photograph, phonorecord, magnetic or recording or video tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into useable form or other tangible item.

    g. "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.

    h. "Trade or commerce" shall include all economic activity involving or relating to any commodity or service.

(cf: P.L.1995, c.110, s.1)]1

 

    1[9. Section 8 of P.L.1968, c.409 (C.2A:156A-8) is amended to read as follows:

    8. The Attorney General, county prosecutor or a person designated to act for such an official and to perform his duties in and during his actual absence or disability, may authorize, in writing, an ex parte application to a judge designated to receive the same for an order authorizing the interception of a wire, or electronic or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation when such interception may provide evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, a violation of paragraph (1) or (2) of subsection b. of N.J.S.2C:12-1, a violation of N.J.S.2C:21-19 punishable by imprisonment for more than one year, terroristic threats, violations of N.J.S.2C:35-3, N.J.S.2C:35-4 and N.J.S.2C:35-5, violations of sections 112 through 116, inclusive, of the "Casino Control Act," P.L.1977, c.110 (C.5:12-112 through 5:12-116), arson, burglary, theft and related offenses punishable by imprisonment for more than one year, endangering the welfare of a child pursuant to N.J.S. 2C:24-4, escape, forgery, alteration of motor vehicle identification numbers, unlawful manufacture, purchase, use, or transfer of firearms, unlawful possession or use of destructive devices or explosives, racketeering or a violation of subsection g. of N.J.S.2C:5-2, leader of organized crime, violations of subsection h., i. or j. of N.J.S.2C:20-8, violations of section 10 of P.L. c. (C.        )(now pending before the Legislature as section 10 of this bill), organized criminal activity directed toward the unlawful transportation, storage, disposal, discharge, release, abandonment or disposition of any harmful, hazardous, toxic, destructive, or polluting substance, or any conspiracy to commit any of the foregoing offenses or which may provide evidence aiding in the apprehension of the perpetrator or perpetrators of any of the foregoing offenses.

(cf: P.L.1995, c.119, s.1)]1

 

    1[10. (New section) A person is a leader of a cellular fraud 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 take, acquire, distribute, or otherwise traffic in access devices, defaced access devices, or any service equipment, device, computer, computer equipment, computer software or instrument designed or intended to facilitate the receipt of any telecommunications service and to avoid the lawful payment of the charges therefore to the provider, in whole or in part. Leader of a cellular fraud trafficking networks is a crime of the second degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, the court may impose a fine, or order restitution, or both, not to exceed $250,000 or five times the losses associated with any access devices or defaced access devices in either human readable or computer readable form, copies or originals, seized at the time of arrest, whichever is greater.

    Notwithstanding the provisions of N.J.S.2C:1-8, a conviction of leader of a cellular fraud trafficking network shall not merge with the conviction for any offense which is the object of the conspiracy. Nothing contained in this act shall prohibit the court from imposing an extended term pursuant to N.J.S.2C:43-7; nor shall this act 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 for any other offense.

    It shall not be necessary in any prosecution under this act 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 attending circumstances, including but not limited to the number of persons involved in the scheme or course of conduct, the actor's net worth and expenditures in relation to his legitimate sources of income, the number of access devices or defaced access devices involved, the quantity and functions of any cellular telephones and other instruments, computers, computer equipment, computer software or equipment seized at the time of arrest, or the total amount of losses incurred by the affected telecommunications carriers related to the scheme or course of conduct.

    It shall not be a defense to a prosecution under this act that the access devices, defaced access devices or any other related instruments or equipment involved in the scheme or course of conduct had been obtained in another jurisdiction; nor shall it be a defense that the ultimate distribution of the access devices or defaced access devices, or any profit therefrom, was to occur in another jurisdiction.

    In any prosecution under this act, possession of two or more access devices, one or more defaced access devices, or any equipment, device, computer, computer equipment, computer software or instrument used or capable of adaptation for use in removing, defacing, altering, destroying, changing, or otherwise modifying the original configuration of an access device shall be presumptive evidence of an intent to traffic in access devices.]1

 

    1[11.] 6.1 (New section) In any prosecution for an offense enumerated in chapter 20 of Title 2C of the New Jersey Statutes involving a defaced access device, any removal, erasure, defacement, alteration, destruction, covering or other change in such access device from its original configuration performed by any person other than an authorized manufacturer of, or service provider to access devices shall be presumed to be for an unlawful purpose.

 

    1[12.] 7.1 This act shall take effect immediately.

 

 

                             

Revises statutes concerning telecommunications crime.