2C:43-6. Sentence of Imprisonment for Crime in New Jersey
Ordinary Terms; Mandatory Terms. a. Except as otherwise provided, a person who has been convicted of a crime may be sentenced to imprisonment, as follows:
(1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
b. As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, as set forth in subsections a. and b. of 2C:44-1, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a., or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code, during which the defendant shall not be eligible for parole; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole.
c. A person who has been convicted under 2C:39-4a. of possession of a firearm with intent to use it against the person of another, or of a crime under any of the following sections: 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, who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm as defined in 2C:39-1f., shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.
The minimum terms established by this section shall not prevent the court from imposing presumptive terms of imprisonment pursuant to 2C:44-1f. (1) except in cases of crimes of the fourth degree.
A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.
d. The court shall not impose a mandatory sentence pursuant to subsection c. of this section, 2C:43-7c. or 2C:44-3d., unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the weapon used or possessed was a firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.
e. A person convicted of a third or subsequent offense involving State taxes under N.J.S.2C:20-9, N.J.S.2C:21-15, any other provision of this code, or under any of the provisions of Title 54 of the Revised Statutes, or Title 54A of the New Jersey Statutes, as amended and supplemented, shall be sentenced to a term of imprisonment by the court. This shall not preclude an application for and imposition of an extended term of imprisonment under N.J.S.2C:44-3 if the provisions of that section are applicable to the offender.
f. A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S.2C:35-5, of maintaining or operating a controlled dangerous substance production facility under N.J.S.2C:35-4, of employing a juvenile in a drug distribution scheme under N.J.S.2C:35-6, leader of a narcotics trafficking network under N.J.S.2C:35-3, or of distributing, dispensing or possessing with intent to distribute on or near school property or buses under section 1 of P.L.1987, c.101 (C.2C:35-7), who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S.2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S.2C:35-6, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.
The court shall not impose an extended term pursuant to this subsection unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish the ground therefor by a preponderance of the evidence. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.
For the purpose of this subsection, a previous conviction exists where the actor has at any time been convicted under chapter 35 of this title or Title 24 of the Revised Statutes or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to N.J.S.2C:35-3, N.J.S.2C:35-4, N.J.S.2C:35-5, N.J.S.2C:35-6 or section 1 of P.L.1987, c.101 (C.2C:35-7).
g. Any person who has been convicted under subsection a. of N.J.S.2C:39-4 of possessing a machine gun or assault firearm with intent to use it against the person of another, or of a crime under any of the following sections: N.J.S.2C:11-3, N.J.S.2C:11-4, N.J.S.2C:12-1b., N.J.S.2C:13-1, N.J.S.2C:14-2a., N.J.S.2C:14-3a., N.J.S.2C:15-1, N.J.S.2C:18-2, N.J.S.2C:29-5, N.J.S.2C:35-5, who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a machine gun or assault firearm shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at 10 years for a crime of the first or second degree, five years for a crime of the third degree, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.
The minimum terms established by this section shall not prevent the court from imposing presumptive terms of imprisonment pursuant to paragraph (1) of subsection f. of N.J.S.2C:44-1 for crimes of the first degree.
A person who has been convicted of an offense enumerated in this subsection and who used or possessed a machine gun or assault firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of any firearm as defined in subsection d. of N.J.S.2C:44-3, shall be sentenced by the court to an extended term as authorized by subsection d. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.
h. The court shall not impose a mandatory sentence pursuant to subsection g. of this section, subsections d. of N.J.S.2C:43-7 or N.J.S.2C:44-3, unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the weapon used or possessed was a machine gun or assault firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.
i. A person who has been convicted under paragraph (6) of subsection b. of 2C:12-1 of causing bodily injury while eluding shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between one-third and one-half of the sentence imposed by the court. The minimum term established by this subsection shall not prevent the court from imposing a presumptive term of imprisonment pursuant to paragraph (1) of subsection f. of 2C:44-1
2C:43-6.5 Mandatory minimum prison term for public officer, employee convicted of certain crimes; waiver, reduction.
6. a. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6 and except as otherwise provided in subsection c. of this section, a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section, shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole as follows: for a crime of the fourth degree, the mandatory minimum term shall be one year; for a crime of the third degree, two years; for a crime of the second degree, five years; and for a crime of the first degree, 10 years; unless the provisions of any other law provide for a higher mandatory minimum term. As used in this subsection, "a crime that involves or touches such office or employment" means that the crime was related directly to the person's performance in, or circumstances flowing from, the specific public office or employment held by the person.
b. Subsection a. of this section applies to a conviction of any of the following crimes:
(1)Paragraph (4) of subsection a. of N.J.S.2C:13-5, criminal coercion;
(2)N.J.S.2C:20-4, theft by deception, if the amount involved exceeds $10,000;
(3)Subsection d. of N.J.S.2C:20-5, theft by extortion;
(4)N.J.S.2C:20-9, theft by failure to make required disposition of property received, if the amount involved exceeds $10,000;
(5)N.J.S.2C:21-10, commercial bribery;
(6)Section 3 of P.L.1994, c.121 (C.2C:21-25), money laundering;
(7)Section 97 of P.L.1999, c.440 (C.2C:21-34), false contract payment claims;
(8)N.J.S.2C:27-2, bribery in official matters;
(9)N.J.S.2C:27-3, threats and other improper influence in official and political matters;
(10) Section 100 of P.L.1999, c.440 (C.2C:27-9), unlawful official business transaction where interest is involved;
(11) Section 5 of P.L.2003, c.255 (C.2C:27-10), acceptance or receipt of unlawful benefit by public servant for official behavior;
(12) Section 6 of P.L.2003, c.255 (C.2C:27-11), offer of unlawful benefit to public servant for official behavior;
(13) N.J.S.2C:28-1, perjury;
(14) N.J.S.2C:28-5, tampering with witnesses;
(15) N.J.S.2C:28-7, tampering with public records or information;
(16) N.J.S.2C:29-4, compounding;
(17) N.J.S.2C:30-2, official misconduct;
(18) N.J.S.2C:30-3, speculating or wagering on official action or information; or
(19) Section 3 of P.L.2003, c.31 (C.2C:30-7), pattern of official misconduct.
c. (1) On motion by the prosecutor stating that the defendant has provided substantial assistance in a criminal investigation or prosecution of another person, the court may waive or reduce the mandatory minimum term of imprisonment required by subsection a. of this section. The appropriate waiver or reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(i)the court's evaluation of the significance and usefulness of the defendant's assistance, giving substantial weight to the prosecutor's evaluation of the assistance rendered;
(ii)the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(iii) the nature and extent of the defendant's assistance;
(iv)any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(v)the timeliness of the defendant's assistance.
In making such a determination, the court shall give substantial weight to the prosecutor's evaluation of the extent of the defendant's assistance, particularly where the extent and value of the assistance are difficult to ascertain.
(2)If the court finds by clear and convincing evidence that extraordinary circumstances exist such that imposition of a mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others, the court may waive or reduce the mandatory minimum term of imprisonment required by subsection a. of this section. In making any such finding, the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply.
(3)If, pursuant to paragraph (1) or (2) of this subsection, the court waives or reduces the mandatory minimum term required by subsection a. of this section, such sentence shall not become final for 10 days in order to permit the appeal of the sentence by the prosecution.
d. (1) A prosecutor shall not recommend the admission into or consent to the referral to a pretrial intervention program of a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is charged with a crime that involves or touches such office or employment as set forth in subsection b. of this section, without the prior approval of the Attorney General.
(2)A person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section shall be ineligible for participation in any program of intensive supervision during any period of parole ineligibility .
e .The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding the waiver or reduction of a mandatory minimum term of imprisonment pursuant to paragraph (1) of subsection c. of this section and participation in a pretrial intervention program pursuant to paragraph (1) of subsection d. of this section.
L.2007, c.49, s.6.
2C:43-7 Sentence of imprisonment for crime; extended terms.
2C:43-7. Sentence of Imprisonment for Crime; Extended Terms.
a. In the cases designated in section 2C:44-3, a person who has been convicted of a crime may be sentenced, and in the cases designated in subsection e. of section 2 of P.L.1994, c.130 (C.2C:43-6.4), in subsection b. of section 2 of P.L.1995, c.126 (C.2C:43-7.1) and in the cases designated in section 1 of P.L.1997, c.410 (C.2C:44-5.1), a person who has been convicted of a crime shall be sentenced, to an extended term of imprisonment, as follows:
(1)In case of aggravated manslaughter sentenced under subsection c. of N.J.S.2C:11-4; or kidnapping when sentenced as a crime of the first degree under paragraph (1) of subsection c. of 2C:13-1; or aggravated sexual assault if the person is eligible for an extended term pursuant to the provisions of subsection g. of N.J.S.2C:44-3 for a specific term of years which shall be between 30 years and life imprisonment;
(2)Except for the crime of murder and except as provided in paragraph (1) of this subsection, in the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 20 years and life imprisonment;
(3)In the case of a crime of the second degree, for a term which shall be fixed by the court between 10 and 20 years;
(4)In the case of a crime of the third degree, for a term which shall be fixed by the court between five and 10 years;
(5)In the case of a crime of the fourth degree pursuant to 2C:43-6c, 2C:43-6g and 2C:44-3d for a term of five years, and in the case of a crime of the fourth degree pursuant to any other provision of law for a term which shall be fixed by the court between three and five years;
(6)In the case of the crime of murder, for a specific term of years which shall be fixed by the court between 35 years and life imprisonment, of which the defendant shall serve 35 years before being eligible for parole;
(7)In the case of kidnapping under paragraph (2) of subsection c. of 2C:13-1, for a specific term of years which shall be fixed by the court between 30 years and life imprisonment, of which the defendant shall serve 30 years before being eligible for parole.
b. As part of a sentence for an extended term and notwithstanding the provisions of 2C:43-9, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a. during which the defendant shall not be eligible for parole or a term of 25 years during which time the defendant shall not be eligible for parole where the sentence imposed was life imprisonment; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole.
c .In the case of a person sentenced to an extended term pursuant to 2C:43-6c, 2C:43-6f and 2C:44-3d, the court shall impose a sentence within the ranges permitted by 2C:43-7a(2), (3), (4) or (5) according to the degree or nature of the crime for which the defendant is being sentenced, which sentence shall include a minimum term which shall, except as may be specifically provided by N.J.S.2C:43-6f, be fixed at or between one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall not be eligible for parole. Where the sentence imposed is life imprisonment, the court shall impose a minimum term of 25 years during which the defendant shall not be eligible for parole, except that where the term of life imprisonment is imposed on a person convicted for a violation of N.J.S.2C:35-3, the term of parole ineligibility shall be 30 years.
d. In the case of a person sentenced to an extended term pursuant to N.J.S.2C:43-6g, the court shall impose a sentence within the ranges permitted by N.J.S.2C:43-7a(2), (3), (4) or (5) according to the degree or nature of the crime for which the defendant is being sentenced, which sentence shall include a minimum term which shall be fixed at 15 years for a crime of the first or second degree, eight years for a crime of the third degree, or five years for a crime of the fourth degree during which the defendant shall not be eligible for parole. Where the sentence imposed is life imprisonment, the court shall impose a minimum term of 25 years during which the defendant shall not be eligible for parole, except that where the term of life imprisonment is imposed on a person convicted of a violation of N.J.S.2C:35-3, the term of parole eligibility shall be 30 years.
2C:43-7.2 Mandatory service of 85% of sentence for certain offenses.
2. a. A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole.
b. The minimum term required by subsection a. of this section shall be fixed as a part of every sentence of incarceration imposed upon every conviction of a crime enumerated in subsection d. of this section, whether the sentence of incarceration is determined pursuant to N.J.S.2C:43-6, N.J.S.2C:43-7, N.J.S.2C:11-3 or any other provision of law, and shall be calculated based upon the sentence of incarceration actually imposed. The provisions of subsection a. of this section shall not be construed or applied to reduce the time that must be served before eligibility for parole by an inmate sentenced to a mandatory minimum period of incarceration. Solely for the purpose of calculating the minimum term of parole ineligibility pursuant to subsection a. of this section, a sentence of life imprisonment shall be deemed to be 75 years
c. Notwithstanding any other provision of law to the contrary and in addition to any other sentence imposed, a court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to this section shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree, or a three-year term of parole supervision if the defendant is being sentenced for a crime of the second degree. The term of parole supervision shall commence upon the completion of the sentence of incarceration imposed by the court pursuant to subsection a. of this section unless the defendant is serving a sentence of incarceration for another crime at the time he completes the sentence of incarceration imposed pursuant to subsection a., in which case the term of parole supervision shall commence immediately upon the defendant's release from incarceration. During the term of parole supervision the defendant shall remain in release status in the community in the legal custody of the Commissioner of the Department of Corrections and shall be supervised by the State Parole Board as if on parole and shall be subject to the provisions and conditions of section 3 of P.L.1997, c.117 (C.30:4-123.51b).
d. The court shall impose sentence pursuant to subsection a. of this section upon conviction of the following crimes or an attempt or conspiracy to commit any of these crimes:
(1)N.J.S.2C:11-3, murder;
(2)N.J.S.2C:11-4, aggravated manslaughter or manslaughter;
(3)N.J.S.2C:11-5, vehicular homicide;
(4)subsection b. of N.J.S.2C:12-1, aggravated assault;
(5)subsection b. of N.J.S.2C:12-11, disarming a law enforcement officer;
(6)N.J.S.2C:13-1, kidnapping;
(7)subsection a. of N.J.S.2C:14-2, aggravated sexual assault;
(8)subsection b. of N.J.S.2C:14-2 and paragraph (1) of subsection c. of N.J.S.2C:14-2, sexual assault;
(9)N.J.S.2C:15-1, robbery;
(10) section 1 of P.L.1993, c.221 (C.2C:15-2), carjacking;
(11) paragraph (1) of subsection a. of N.J.S.2C:17-1, aggravated arson;
(12) N.J.S.2C:18-2, burglary;
(13) subsection a. of N.J.S.2C:20-5, extortion;
(14) subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), booby traps in manufacturing or distribution facilities; or
(15) N.J.S.2C:35-9, strict liability for drug induced deaths.
(16) section 2 of P.L.2002, c.26 (C.2C:38-2), terrorism; or
(17) section 3 of P.L.2002, c.26 (C.2C:38-3), producing or possessing chemical weapons, biological agents or nuclear or radiological devices.
e.(Deleted by amendment, P.L.2001, c.129).
L.1997,c.117,s.2; amended 2001, c.79, s.16; 2001, c.129, s.1; 2002, c.26, s.19.
2C:43-8. Sentence of imprisonment for disorderly persons offenses and petty disorderly persons offenses
A person who has been convicted of a disorderly persons offense or a petty disorderly persons offense may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall not exceed 6 months in the case of a disorderly persons offense or 30 days in the case of a petty disorderly persons offense.
Jasmin Eversley, Editor
Friday, June 27, 2008
Ignorance or mistake as a defense to a crime
a. Ignorance or mistake as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and:
(1) It negatives the culpable mental state required to establish the offense; or
(2) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.
b. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
c. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
(1) The statute defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
(2) The actor acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (a) a statute, (b) judicial decision, opinion, judgment, or rule, (c) an administrative order or grant of permission, or (d) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense; or
(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.
The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence.
L.1978, c. 95, s. 2C:2-4, eff. Sept. 1, 1979.
2C:2-5. Defenses generally
Conduct which would otherwise be an offense is excused or alleviated by reason of any defense now provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the defense claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:2-5, eff. Sept. 1, 1979.
(1) It negatives the culpable mental state required to establish the offense; or
(2) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.
b. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
c. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
(1) The statute defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
(2) The actor acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (a) a statute, (b) judicial decision, opinion, judgment, or rule, (c) an administrative order or grant of permission, or (d) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense; or
(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.
The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence.
L.1978, c. 95, s. 2C:2-4, eff. Sept. 1, 1979.
2C:2-5. Defenses generally
Conduct which would otherwise be an offense is excused or alleviated by reason of any defense now provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the defense claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:2-5, eff. Sept. 1, 1979.
Homicide Murder
2C:11-1.Definitions
2C:11-3 Homicide Murder
2C:11-1. Definitions.
In chapters 11 through 15, unless a different meaning plainly is required:
a. "Bodily injury" means physical pain, illness or any impairment of physical condition;
b. "Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;
c. "Deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury;
d. "Significant bodily injury" means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses.
L.1978, c.95; amended 1979,c.178,s.19; 1981,c.384,s.1; 1995,c.307,s.1.
?2C:11-2. Criminal homicide
a. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or, under the circumstances set forth in section 2C:11-5, causes the death of another human being
b. Criminal homicide is murder, manslaughter or death by auto.
L.1978, c. 95, s. 2C:11-2, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 20, eff. Sept. 1, 1979.
2C:11-2.1. Elapse of time between assault and death, prosecution for criminal homicide
The length of time which has elapsed between the initial assault and the death of the victim shall not be a bar to prosecution of the actor for criminal homicide.
2C:11-3 Murder.
2C:11-3. Murder.
a. Except as provided in N.J.S.2C:11-4, criminal homicide constitutes murder when:
(1)The actor purposely causes death or serious bodily injury resulting in death; or
(2)The actor knowingly causes death or serious bodily injury resulting in death; or
(3)It is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2), and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants; except that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(a)Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b)Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c)Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d)Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
b. (1) Murder is a crime of the first degree but a person convicted of murder shall be sentenced, except as provided in subsection c. of this section, by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole.
(2)If the victim was a law enforcement officer and was murdered while performing his official duties or was murdered because of his status as a law enforcement officer, the person convicted of that murder shall be sentenced, except as otherwise provided in subsection c. of this section, by the court to a term of life imprisonment, during which the person shall not be eligible for parole.
(3)A person convicted of murder and who is not sentenced to death under this section shall be sentenced to a term of life imprisonment without eligibility for parole if the murder was committed under all of the following circumstances:
(a)The victim is less than 14 years old; and
(b)The act is committed in the course of the commission, whether alone or with one or more persons, of a violation of N.J.S.2C:14-2 or N.J.S.2C:14-3.
(4)If the defendant was subject to sentencing pursuant to subsection c. and the jury or court found the existence of one or more aggravating factors, but that such factors did not outweigh the mitigating factors found to exist by the jury or court or the jury was unable to reach a unanimous verdict as to the weight of the factors, the defendant shall be sentenced by the court to a term of life imprisonment during which the defendant shall not be eligible for parole.
With respect to a sentence imposed pursuant to this subsection, the defendant shall not be entitled to a deduction of commutation and work credits from that sentence.
c. Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct; or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value; or who, as a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 and in furtherance of a conspiracy enumerated in N.J.S.2C:35-3, commanded or by threat or promise solicited the commission of the offense, or, if the murder occurred during the commission of the crime of terrorism, any person who committed the crime of terrorism, shall be sentenced as provided hereinafter:
(1)The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or pursuant to the provisions of subsection b. 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 homicide conviction pursuant to paragraph (4)(a) of this subsection may include the identity and age of the victim, the manner of death 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 b.
(c)If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.
(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 another murder. 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)In the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim;
(c)The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim;
(d)The defendant committed the murder as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value;
(e)The defendant procured the commission of the murder by payment or promise of payment of anything of pecuniary value;
(f)The murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another;
(g)The murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, robbery, sexual assault, arson, burglary, kidnapping, carjacking or the crime of contempt in violation of N.J.S.2C:29-9b.;
(h)The defendant murdered a public servant, as defined in N.J.S.2C:27-1, while the victim was engaged in the performance of his official duties, or because of the victim's status as a public servant;
(i)The defendant: (i) as a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 and in furtherance of a conspiracy enumerated in N.J.S.2C:35-3, committed, commanded or by threat or promise solicited the commission of the murder or (ii) committed the murder at the direction of a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 in furtherance of a conspiracy enumerated in N.J.S.2C:35-3;
(j)The homicidal act that the defendant committed or procured was in violation of paragraph (1) of subsection a. of N.J.S.2C:17-2;
(k)The victim was less than 14 years old; or
(l)The murder was committed during the commission of, or an attempt to commit, or flight after committing or attempting to commit, terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2).
(5)The mitigating factors which may be found by the jury or the court are:
(a)The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution;
(b)The victim solicited, participated in or consented to the conduct which resulted in his death;
(c)The age of the defendant at the time of the murder;
(d)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 or intoxication, but not to a degree sufficient to constitute a defense to prosecution;
(e)The defendant was under unusual and substantial duress insufficient to constitute a defense to prosecution;
(f)The defendant has no significant history of prior criminal activity;
(g)The defendant rendered substantial assistance to the State in the prosecution of another person for the crime of murder; or
(h)Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense.
(6)When a defendant at a sentencing proceeding presents evidence of the defendant's character or record pursuant to subparagraph (h) of paragraph (5) of this subsection, the State may present evidence of the murder victim's character and background and of the impact of the murder on the victim's survivors. If the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds the existence of a mitigating factor pursuant to subparagraph (h) of paragraph (5) of this subsection, the jury may consider the victim and survivor evidence presented by the State pursuant to this paragraph in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection. As used in this paragraph "victim and survivor evidence" may include the display of a photograph of the victim taken before the homicide.
d. The sentencing proceeding set forth in subsection c. of this section shall not be waived by the prosecuting attorney.
e. Every judgment of conviction which results in a sentence of death under this section shall be appealed, pursuant to the Rules of Court, to the Supreme Court. Upon the request of the defendant, the Supreme Court shall also determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Proportionality review under this section shall be limited to a comparison of similar cases in which a sentence of death has been imposed under subsection c. of this section. In any instance in which the defendant fails, or refuses to appeal, the appeal shall be taken by the Office of the Public Defender or other counsel appointed by the Supreme Court for that purpose.
f. Prior to the jury's sentencing deliberations, the trial court shall inform the jury of the sentences which may be imposed pursuant to subsection b. 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 b.
g. A juvenile who has been tried as an adult and convicted of murder shall not be sentenced pursuant to the provisions of subsection c. but shall be sentenced pursuant to the provisions of subsection b. of this section.
h. 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.
i. For purposes of this section the term "homicidal act" shall mean conduct that causes death or serious bodily injury resulting in death.
j. In a sentencing proceeding conducted pursuant to this section, the display of a photograph of the victim taken before the homicide shall be permitted.
L.1978, c.95; amended 1979, c.178, s.21; 1981, c.290, s.12; 1982, c.111, s.1; 1985, c.178, s.2; 1985, c.478; 1992, c.5; 1992, c.76; 1993, c.27; 1993, c.111; 1993, c.206; 1994, c.132; 1995, c.123; 1996, c.115, s.1; 1997, c.60, s.1; 1998, c.25; 1999, c.209; 1999, c.294, s.1; 2000, c.88; 2002, c.26, s.10
?2C:11-3a. Adoption of court rules concerning photo of homicide victim
3.The Supreme Court may adopt court rules pertaining to the display of a photograph of a homicide victim in court as permitted in N.J.S.2C:11-3 concerning murder and in section 3 of P.L.1985, c.249 (C.52:4B-36) concerning other homicide prosecutions. These court rules may include, but shall not be limited to, the following matters to ensure uniformity in all homicide prosecutions:
a. the size of the photograph;
b. the duration of the display;
c. the location of the photograph in the courtroom.
2C:11-3 Homicide Murder
2C:11-1. Definitions.
In chapters 11 through 15, unless a different meaning plainly is required:
a. "Bodily injury" means physical pain, illness or any impairment of physical condition;
b. "Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;
c. "Deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury;
d. "Significant bodily injury" means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses.
L.1978, c.95; amended 1979,c.178,s.19; 1981,c.384,s.1; 1995,c.307,s.1.
?2C:11-2. Criminal homicide
a. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or, under the circumstances set forth in section 2C:11-5, causes the death of another human being
b. Criminal homicide is murder, manslaughter or death by auto.
L.1978, c. 95, s. 2C:11-2, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 20, eff. Sept. 1, 1979.
2C:11-2.1. Elapse of time between assault and death, prosecution for criminal homicide
The length of time which has elapsed between the initial assault and the death of the victim shall not be a bar to prosecution of the actor for criminal homicide.
2C:11-3 Murder.
2C:11-3. Murder.
a. Except as provided in N.J.S.2C:11-4, criminal homicide constitutes murder when:
(1)The actor purposely causes death or serious bodily injury resulting in death; or
(2)The actor knowingly causes death or serious bodily injury resulting in death; or
(3)It is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2), and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants; except that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(a)Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b)Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c)Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d)Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
b. (1) Murder is a crime of the first degree but a person convicted of murder shall be sentenced, except as provided in subsection c. of this section, by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole.
(2)If the victim was a law enforcement officer and was murdered while performing his official duties or was murdered because of his status as a law enforcement officer, the person convicted of that murder shall be sentenced, except as otherwise provided in subsection c. of this section, by the court to a term of life imprisonment, during which the person shall not be eligible for parole.
(3)A person convicted of murder and who is not sentenced to death under this section shall be sentenced to a term of life imprisonment without eligibility for parole if the murder was committed under all of the following circumstances:
(a)The victim is less than 14 years old; and
(b)The act is committed in the course of the commission, whether alone or with one or more persons, of a violation of N.J.S.2C:14-2 or N.J.S.2C:14-3.
(4)If the defendant was subject to sentencing pursuant to subsection c. and the jury or court found the existence of one or more aggravating factors, but that such factors did not outweigh the mitigating factors found to exist by the jury or court or the jury was unable to reach a unanimous verdict as to the weight of the factors, the defendant shall be sentenced by the court to a term of life imprisonment during which the defendant shall not be eligible for parole.
With respect to a sentence imposed pursuant to this subsection, the defendant shall not be entitled to a deduction of commutation and work credits from that sentence.
c. Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct; or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value; or who, as a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 and in furtherance of a conspiracy enumerated in N.J.S.2C:35-3, commanded or by threat or promise solicited the commission of the offense, or, if the murder occurred during the commission of the crime of terrorism, any person who committed the crime of terrorism, shall be sentenced as provided hereinafter:
(1)The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or pursuant to the provisions of subsection b. 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 homicide conviction pursuant to paragraph (4)(a) of this subsection may include the identity and age of the victim, the manner of death 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 b.
(c)If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.
(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 another murder. 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)In the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim;
(c)The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim;
(d)The defendant committed the murder as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value;
(e)The defendant procured the commission of the murder by payment or promise of payment of anything of pecuniary value;
(f)The murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another;
(g)The murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, robbery, sexual assault, arson, burglary, kidnapping, carjacking or the crime of contempt in violation of N.J.S.2C:29-9b.;
(h)The defendant murdered a public servant, as defined in N.J.S.2C:27-1, while the victim was engaged in the performance of his official duties, or because of the victim's status as a public servant;
(i)The defendant: (i) as a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 and in furtherance of a conspiracy enumerated in N.J.S.2C:35-3, committed, commanded or by threat or promise solicited the commission of the murder or (ii) committed the murder at the direction of a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 in furtherance of a conspiracy enumerated in N.J.S.2C:35-3;
(j)The homicidal act that the defendant committed or procured was in violation of paragraph (1) of subsection a. of N.J.S.2C:17-2;
(k)The victim was less than 14 years old; or
(l)The murder was committed during the commission of, or an attempt to commit, or flight after committing or attempting to commit, terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2).
(5)The mitigating factors which may be found by the jury or the court are:
(a)The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution;
(b)The victim solicited, participated in or consented to the conduct which resulted in his death;
(c)The age of the defendant at the time of the murder;
(d)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 or intoxication, but not to a degree sufficient to constitute a defense to prosecution;
(e)The defendant was under unusual and substantial duress insufficient to constitute a defense to prosecution;
(f)The defendant has no significant history of prior criminal activity;
(g)The defendant rendered substantial assistance to the State in the prosecution of another person for the crime of murder; or
(h)Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense.
(6)When a defendant at a sentencing proceeding presents evidence of the defendant's character or record pursuant to subparagraph (h) of paragraph (5) of this subsection, the State may present evidence of the murder victim's character and background and of the impact of the murder on the victim's survivors. If the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds the existence of a mitigating factor pursuant to subparagraph (h) of paragraph (5) of this subsection, the jury may consider the victim and survivor evidence presented by the State pursuant to this paragraph in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection. As used in this paragraph "victim and survivor evidence" may include the display of a photograph of the victim taken before the homicide.
d. The sentencing proceeding set forth in subsection c. of this section shall not be waived by the prosecuting attorney.
e. Every judgment of conviction which results in a sentence of death under this section shall be appealed, pursuant to the Rules of Court, to the Supreme Court. Upon the request of the defendant, the Supreme Court shall also determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Proportionality review under this section shall be limited to a comparison of similar cases in which a sentence of death has been imposed under subsection c. of this section. In any instance in which the defendant fails, or refuses to appeal, the appeal shall be taken by the Office of the Public Defender or other counsel appointed by the Supreme Court for that purpose.
f. Prior to the jury's sentencing deliberations, the trial court shall inform the jury of the sentences which may be imposed pursuant to subsection b. 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 b.
g. A juvenile who has been tried as an adult and convicted of murder shall not be sentenced pursuant to the provisions of subsection c. but shall be sentenced pursuant to the provisions of subsection b. of this section.
h. 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.
i. For purposes of this section the term "homicidal act" shall mean conduct that causes death or serious bodily injury resulting in death.
j. In a sentencing proceeding conducted pursuant to this section, the display of a photograph of the victim taken before the homicide shall be permitted.
L.1978, c.95; amended 1979, c.178, s.21; 1981, c.290, s.12; 1982, c.111, s.1; 1985, c.178, s.2; 1985, c.478; 1992, c.5; 1992, c.76; 1993, c.27; 1993, c.111; 1993, c.206; 1994, c.132; 1995, c.123; 1996, c.115, s.1; 1997, c.60, s.1; 1998, c.25; 1999, c.209; 1999, c.294, s.1; 2000, c.88; 2002, c.26, s.10
?2C:11-3a. Adoption of court rules concerning photo of homicide victim
3.The Supreme Court may adopt court rules pertaining to the display of a photograph of a homicide victim in court as permitted in N.J.S.2C:11-3 concerning murder and in section 3 of P.L.1985, c.249 (C.52:4B-36) concerning other homicide prosecutions. These court rules may include, but shall not be limited to, the following matters to ensure uniformity in all homicide prosecutions:
a. the size of the photograph;
b. the duration of the display;
c. the location of the photograph in the courtroom.
Hindering Apprehension or Prosecution
a. A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he:
(1)Harbors or conceals the other;
(2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;
(3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;
(5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or
(7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:
(1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
L.1978, c.95; amended 1981, c.290, s.29; amended 1999, c.297.
(1)Harbors or conceals the other;
(2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;
(3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;
(5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or
(7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:
(1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
L.1978, c.95; amended 1981, c.290, s.29; amended 1999, c.297.
Harassment
Under N.J.S.A. 2C:33-4, a person commits the offense of harassment if, "with purpose to harass" he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Thus, "integral to a finding of harassment under either section is the establishment of the purpose to harass . . . ." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).
As was emphasized in Corrente, it is not sufficient that plaintiff feel alarmed or threatened. Id. at 249. Plaintiff's subjective feelings are not a substitute for the required judicial finding of intent to harass by the defendant.
In a deeply dysfunctional marriage, it is not uncommon for emotions to boil over, and for angry words to be hurdled about, often peppered with profanities. Under similar circumstances, we have held that a husband's statement that he would bury his wife, uttered after she announced her intention to obtain a divorce, did not constitute harassment. Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995). Even the exchange of vulgarities on numerous occasions and inappropriate expressions of anger, including kicking a garbage can in the presence of the parties' young children, is not harassment. J.N.S. v. D.B.S., 302 N.J. Super. 525, 527 (App. Div. 1997).
Finding a party guilty of having committed an act of domestic violence is a serious matter. We have repeatedly held that domestic violence restraining orders have serious consequences to a defendant, and therefore should not be entered without an adequate factual basis. Chernesky v. Fedorczyk, 346 N.J. Super. 34, 41 (App. Div. 2001). The absence of the statutorily required judicial finding compels a court to vacate the restraints imposed by the court.
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Thus, "integral to a finding of harassment under either section is the establishment of the purpose to harass . . . ." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).
As was emphasized in Corrente, it is not sufficient that plaintiff feel alarmed or threatened. Id. at 249. Plaintiff's subjective feelings are not a substitute for the required judicial finding of intent to harass by the defendant.
In a deeply dysfunctional marriage, it is not uncommon for emotions to boil over, and for angry words to be hurdled about, often peppered with profanities. Under similar circumstances, we have held that a husband's statement that he would bury his wife, uttered after she announced her intention to obtain a divorce, did not constitute harassment. Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995). Even the exchange of vulgarities on numerous occasions and inappropriate expressions of anger, including kicking a garbage can in the presence of the parties' young children, is not harassment. J.N.S. v. D.B.S., 302 N.J. Super. 525, 527 (App. Div. 1997).
Finding a party guilty of having committed an act of domestic violence is a serious matter. We have repeatedly held that domestic violence restraining orders have serious consequences to a defendant, and therefore should not be entered without an adequate factual basis. Chernesky v. Fedorczyk, 346 N.J. Super. 34, 41 (App. Div. 2001). The absence of the statutorily required judicial finding compels a court to vacate the restraints imposed by the court.
THE GRAND JURY 3:6-1. Summoning the Grand Jury
The Assignment Judge of each county shall order and organize according to law one or more grand juries for the county not exceeding 23 members each to be summoned at such times as the public interest requires. At least one grand jury shall be serving in each county at all times.
Note: Source-R.R. 3:3-1. 3:6-2. Objections to Grand Jury and Grand Jurors
The prosecuting attorney or a defendant, after being held to answer a complaint charging an indictable offense or after indictment, may, in writing, challenge the array of the grand jury which has returned or is expected to return the indictment on the ground that it was not selected, drawn or summoned according to law, and may challenge an individual juror on the ground that the juror is not legally qualified. All such challenges shall be made within 30 days of the service of the complaint or no later than at the arraignment/status conference. For good cause shown, the court may allow the motion to be brought at any time. Such challenges shall be tried by a judge designated by the Assignment Judge. If a defendant has already been indicted, such challenges may be the basis of a motion to dismiss the indictment.
Note: Source-R.R. 3:3-2(a)(b); amended July 13, 1994 to be effective January 1, 1995. 3:6-3. Supervising and Charging the Grand Jury
(a) Potential Bias. When appropriate, the Assignment Judge shall inquire of potential grand jurors about such aspects of their background as may reveal possible bias or interest in a matter to come before the grand jury. The Assignment Judge shall instruct the grand jury that without the Assignment Judge's approval no grand juror shall participate in any matter in which that juror has a bias or a financial, proprietary, or personal interest; and if that juror wishes to participate, the juror shall forthwith so inform the prosecutor. The prosecutor shall forthwith inform the Assignment Judge, who shall determine, in camera, whether such bias or interest exists and whether it justifies excusal. (b) Copy of Charge. When the judge designated by the Assignment Judge charges the grand jury, that judge shall cause a copy of the charge to be promptly furnished to each juror.
Note: Source-R.R. 3:3-3; caption amended paragraph (a) adopted, and former rule captioned and redesignated paragraph (b) June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994. 3:6-4. Foreperson; Deputy Foreperson
The Assignment Judge shall appoint one of the jurors to be foreperson and another to be deputy foreperson. The foreperson shall have power to administer oaths and shall endorse all indictments. During the absence of the foreperson, the deputy foreperson shall act as foreperson.
Note: Source-R.R. 3:3-4; amended July 14, 1992, to be effective September 1, 1992. 3:6-5. Clerk
The clerk of the grand jury shall make and keep minutes of the proceedings of the grand jury as well as a record of the vote of each juror, by name, on each considered matter. If there is no clerk of the grand jury, the foreperson or another juror designated by the foreperson shall keep such a record. The record of the vote on every count of every indictment and on every presentment shall be filed with the clerk of the grand jury. The record shall not be made public except on order of the Assignment Judge.
Note: Source-R.R. 3:3-5. Amended July 14, 1972 to be effective September 5, 1972; amended July 29, 1977 to be effective September 6, 1977; amended July 13, 1994 to be effective September 1, 1994. 3:6-6. Who May Be Present; Record and Transcript
(a) Attendance at Session. No person other than the jurors, the prosecuting attorney, the clerk of the grand jury, the witness under examination, interpreters when needed and, for the purpose of recording the proceedings, a stenographer or operator of a recording device may be present while the grand jury is in session. No person other than the jurors, the clerk, the prosecuting attorney and the stenographer or operator of the recording device may be present while the grand jury is deliberating. The grand jury, however, may request either (1) the prosecuting attorney and the stenographer or operator or (2) the clerk to leave the jury room during its deliberations. (b) Record; Transcript. A stenographic record or sound recording shall be made of all testimony of witnesses, comments by the prosecuting attorney, and colloquy between the prosecuting attorney and witnesses or members of the grand jury, before the grand jury. After an indictment has been returned, at the request of the defendant, a transcript of the grand jury proceedings shall be made. The request shall designate the portion or portions of the proceedings to be transcribed and the person or persons to whom the transcript is to be furnished. A copy of the request for a transcript will be served contemporaneously by the defendant upon the prosecutor, who may move for a protective order pursuant to R. 3:13-3(f). The prosecutor may request a copy of the transcript at any time. (c) Retention of Records. If no request has been made or order entered directing a transcript of the grand jury proceedings to be made within six months after their termination, the stenographic record or sound recording shall be sealed and deposited with the operations division manager's office who shall retain it subject to the directions of the Administrative Director of the Courts.
Note: Source-R.R. 3:3-6(a)(b)(c); paragraphs (a) and (b) amended July 15, 1982 to be effective September 13, 1982; paragraph (b) amended and second paragraph added to paragraph (b) July 13, 1994, new text in paragraph (b) amended December 9, 1994, to be effective January 1, 1995; paragraph (c) amended July 5, 2000 to be effective September 5, 2000. 3:6-7. Secrecy of Proceedings
Except as otherwise provided by R. 3:13-3, the requirement as to secrecy of proceedings of the grand jury shall remain as heretofore, and all persons other than witnesses, permitted by R. 3:6-6 to be present while the grand jury is in session, shall be required to take an oath of secrecy before their admission thereto. Such oath shall also be taken by typists making transcripts of testimony given before the grand jury.
Note: Source-R.R. 3:3-7; amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995. 3:6-8. Finding and Return of Indictment; No Bill
(a) Return; Secrecy. An indictment may be found only upon the concurrence of 12 or more jurors and shall be returned in open court to the Assignment Judge or, in the Assignment Judge's absence, to any Superior Court judge assigned to the Law Division in the county. With the approval of the Assignment Judge, an indictment may be returned to such judge by only the foreman or the deputy foreman rather than with all other members of the grand jury. Such judge may direct that the indictment shall be kept secret until the defendant is in custody or has given bail and in that event it shall be sealed by the clerk, and no person shall disclose its finding except as necessary for the issuance and execution of a warrant or summons. (b) No Bill. If the defendant has been held to answer a complaint and, after submission to the grand jury, no indictment has been found, the foreperson shall forthwith so report in writing to the court, who shall forthwith order the defendant's release unless the defendant's detention is required by other pending proceedings. Notice of the action of the grand jury shall also be mailed by the clerk of the court to the defendant's attorney, a defendant not in custody, and the defendant's sureties if bail has been posted.
Note: Source-R.R. 3:3-8(a)(b); paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994. 3:6-9. Finding and Return of Presentment
(a) Finding. A presentment may be made only upon the concurrence of 12 or more jurors. It may refer to public affairs or conditions, but it may censure a public official only where that public official's association with the deprecated public affairs or conditions is intimately and inescapably a part of them. (b) Return. A presentment shall be returned in open court to the Assignment Judge, who shall be notified in advance thereof by the foreperson so that the judge may arrange to be available in court to receive it. (c) Examination; Reference Back; Striking. Promptly and before the grand jury is discharged, the Assignment Judge shall examine the presentment. If it appears that a crime has been committed for which an indictment may be had, the Assignment Judge shall refer the presentment back to the grand jury with appropriate instructions. If a public official is censured the proof must be conclusive that the existence of the condemned matter is inextricably related to non-criminal failure to discharge that public official's public duty. If it appears that the presentment is false, or is based on partisan motives, or indulges in personalities without basis, or if other good cause appears, the Assignment Judge shall strike the presentment either in full or in part. As an aid in examining the presentment the Assignment Judge may call for and examine the minutes and records of the grand jury, with or without the aid of the foreperson or the prosecuting attorney, to determine if a substantial foundation exists for the public report. If the presentment censures a public official and the Assignment Judge determines not to strike, a copy of the presentment shall forthwith be served upon the public official who may, within 10 days thereafter, move for a hearing, which shall be held in camera. The public official may examine the grand jury minutes fully, under such reasonable supervision as the court deems advisable, and be permitted to introduce additional evidence to expose any deficiency. (d) Filing and Publication. Such portions of the presentment as are not referred back to the grand jury for further action or are not stricken in accordance with paragraph (c) of this rule shall be filed and made public, and the Assignment Judge shall instruct the clerk of the grand jury to send copies thereof to such public bodies or officials as may be concerned with the criticisms and recommendations made therein and to the Administrative Director of the Courts. The presentment or any portion thereof shall not be made public by any person except the Assignment Judge. The Assignment Judge shall withhold publication of the presentment until the expiration of the time for the making of a motion for a hearing by a public official pursuant to R. 3:6-9(c), and if such motion is made, shall withhold publication of the presentment pending the judge's determination. (e) Review. The action taken by the Assignment Judge pursuant to this rule is judicial in nature and is subject to review for abuse of discretion by the State or by any aggrieved person, including any member of the grand jury making the presentment.
Note: Source-R.R. 3:3-9(a)(b)(c)(d)(e); paragraphs (a), (b), (c) and (d) amended July 13, 1994to be effective September 1, 1994. 3:6-10. Discharge; Continuance of Term
(a) Term. A grand jury shall serve until discharged by the Assignment Judge, but not longer than 20 weeks unless the Assignment Judge shall order it continued as hereinafter provided. A grand jury shall not be discharged before the expiration of its term of service except for good cause. The continuance of such grand jury shall not affect the usual drawing, selecting and serving of further grand juries. (b) Order for Continuance. Whenever it appears to the Assignment Judge that the grand jury has not completed its labors, although its ordinary term is about to expire, the Assignment Judge may, if satisfied of the necessity therefor, order that its term be continued. The order shall be made and filed within the session of court for which such grand jury shall have been drawn, and shall provide a continuance for a definite period of time not exceeding 3 calendar months, provided, however, that the Assignment Judge may make a further order, or orders, continuing such grand jury in office for a further term or terms of 3 calendar months each.
Note: Source-R.R. 3:3-10(a)(b)(c); paragraph (b) amended July 13, 1994 to be effective September 1, 1994. 3:6-11. Impanelment and Judicial Supervision of State Grand Jury
(a) Generally. All rules relating to grand juries shall apply to the State Grand Jury except as otherwise specifically provided by statute or rule. (b) Designation of Assignment Judge. The Chief Justice shall designate an Assignment Judge of the Superior Court to impanel and supervise the State Grand Jury or Grand Juries. The Chief Justice may also designate one or more Judges of the Superior Court to assist said Assignment Judge with regard to impanelment and supervision of the State Grand Jury or Grand Juries and to perform such other duties and responsibilities with regard thereto as ordered by the Chief Justice or the designated Assignment Judge.
Note: Adopted July 17, 1975 to be effective September 8, 1975.
Note: Source-R.R. 3:3-1. 3:6-2. Objections to Grand Jury and Grand Jurors
The prosecuting attorney or a defendant, after being held to answer a complaint charging an indictable offense or after indictment, may, in writing, challenge the array of the grand jury which has returned or is expected to return the indictment on the ground that it was not selected, drawn or summoned according to law, and may challenge an individual juror on the ground that the juror is not legally qualified. All such challenges shall be made within 30 days of the service of the complaint or no later than at the arraignment/status conference. For good cause shown, the court may allow the motion to be brought at any time. Such challenges shall be tried by a judge designated by the Assignment Judge. If a defendant has already been indicted, such challenges may be the basis of a motion to dismiss the indictment.
Note: Source-R.R. 3:3-2(a)(b); amended July 13, 1994 to be effective January 1, 1995. 3:6-3. Supervising and Charging the Grand Jury
(a) Potential Bias. When appropriate, the Assignment Judge shall inquire of potential grand jurors about such aspects of their background as may reveal possible bias or interest in a matter to come before the grand jury. The Assignment Judge shall instruct the grand jury that without the Assignment Judge's approval no grand juror shall participate in any matter in which that juror has a bias or a financial, proprietary, or personal interest; and if that juror wishes to participate, the juror shall forthwith so inform the prosecutor. The prosecutor shall forthwith inform the Assignment Judge, who shall determine, in camera, whether such bias or interest exists and whether it justifies excusal. (b) Copy of Charge. When the judge designated by the Assignment Judge charges the grand jury, that judge shall cause a copy of the charge to be promptly furnished to each juror.
Note: Source-R.R. 3:3-3; caption amended paragraph (a) adopted, and former rule captioned and redesignated paragraph (b) June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994. 3:6-4. Foreperson; Deputy Foreperson
The Assignment Judge shall appoint one of the jurors to be foreperson and another to be deputy foreperson. The foreperson shall have power to administer oaths and shall endorse all indictments. During the absence of the foreperson, the deputy foreperson shall act as foreperson.
Note: Source-R.R. 3:3-4; amended July 14, 1992, to be effective September 1, 1992. 3:6-5. Clerk
The clerk of the grand jury shall make and keep minutes of the proceedings of the grand jury as well as a record of the vote of each juror, by name, on each considered matter. If there is no clerk of the grand jury, the foreperson or another juror designated by the foreperson shall keep such a record. The record of the vote on every count of every indictment and on every presentment shall be filed with the clerk of the grand jury. The record shall not be made public except on order of the Assignment Judge.
Note: Source-R.R. 3:3-5. Amended July 14, 1972 to be effective September 5, 1972; amended July 29, 1977 to be effective September 6, 1977; amended July 13, 1994 to be effective September 1, 1994. 3:6-6. Who May Be Present; Record and Transcript
(a) Attendance at Session. No person other than the jurors, the prosecuting attorney, the clerk of the grand jury, the witness under examination, interpreters when needed and, for the purpose of recording the proceedings, a stenographer or operator of a recording device may be present while the grand jury is in session. No person other than the jurors, the clerk, the prosecuting attorney and the stenographer or operator of the recording device may be present while the grand jury is deliberating. The grand jury, however, may request either (1) the prosecuting attorney and the stenographer or operator or (2) the clerk to leave the jury room during its deliberations. (b) Record; Transcript. A stenographic record or sound recording shall be made of all testimony of witnesses, comments by the prosecuting attorney, and colloquy between the prosecuting attorney and witnesses or members of the grand jury, before the grand jury. After an indictment has been returned, at the request of the defendant, a transcript of the grand jury proceedings shall be made. The request shall designate the portion or portions of the proceedings to be transcribed and the person or persons to whom the transcript is to be furnished. A copy of the request for a transcript will be served contemporaneously by the defendant upon the prosecutor, who may move for a protective order pursuant to R. 3:13-3(f). The prosecutor may request a copy of the transcript at any time. (c) Retention of Records. If no request has been made or order entered directing a transcript of the grand jury proceedings to be made within six months after their termination, the stenographic record or sound recording shall be sealed and deposited with the operations division manager's office who shall retain it subject to the directions of the Administrative Director of the Courts.
Note: Source-R.R. 3:3-6(a)(b)(c); paragraphs (a) and (b) amended July 15, 1982 to be effective September 13, 1982; paragraph (b) amended and second paragraph added to paragraph (b) July 13, 1994, new text in paragraph (b) amended December 9, 1994, to be effective January 1, 1995; paragraph (c) amended July 5, 2000 to be effective September 5, 2000. 3:6-7. Secrecy of Proceedings
Except as otherwise provided by R. 3:13-3, the requirement as to secrecy of proceedings of the grand jury shall remain as heretofore, and all persons other than witnesses, permitted by R. 3:6-6 to be present while the grand jury is in session, shall be required to take an oath of secrecy before their admission thereto. Such oath shall also be taken by typists making transcripts of testimony given before the grand jury.
Note: Source-R.R. 3:3-7; amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995. 3:6-8. Finding and Return of Indictment; No Bill
(a) Return; Secrecy. An indictment may be found only upon the concurrence of 12 or more jurors and shall be returned in open court to the Assignment Judge or, in the Assignment Judge's absence, to any Superior Court judge assigned to the Law Division in the county. With the approval of the Assignment Judge, an indictment may be returned to such judge by only the foreman or the deputy foreman rather than with all other members of the grand jury. Such judge may direct that the indictment shall be kept secret until the defendant is in custody or has given bail and in that event it shall be sealed by the clerk, and no person shall disclose its finding except as necessary for the issuance and execution of a warrant or summons. (b) No Bill. If the defendant has been held to answer a complaint and, after submission to the grand jury, no indictment has been found, the foreperson shall forthwith so report in writing to the court, who shall forthwith order the defendant's release unless the defendant's detention is required by other pending proceedings. Notice of the action of the grand jury shall also be mailed by the clerk of the court to the defendant's attorney, a defendant not in custody, and the defendant's sureties if bail has been posted.
Note: Source-R.R. 3:3-8(a)(b); paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994. 3:6-9. Finding and Return of Presentment
(a) Finding. A presentment may be made only upon the concurrence of 12 or more jurors. It may refer to public affairs or conditions, but it may censure a public official only where that public official's association with the deprecated public affairs or conditions is intimately and inescapably a part of them. (b) Return. A presentment shall be returned in open court to the Assignment Judge, who shall be notified in advance thereof by the foreperson so that the judge may arrange to be available in court to receive it. (c) Examination; Reference Back; Striking. Promptly and before the grand jury is discharged, the Assignment Judge shall examine the presentment. If it appears that a crime has been committed for which an indictment may be had, the Assignment Judge shall refer the presentment back to the grand jury with appropriate instructions. If a public official is censured the proof must be conclusive that the existence of the condemned matter is inextricably related to non-criminal failure to discharge that public official's public duty. If it appears that the presentment is false, or is based on partisan motives, or indulges in personalities without basis, or if other good cause appears, the Assignment Judge shall strike the presentment either in full or in part. As an aid in examining the presentment the Assignment Judge may call for and examine the minutes and records of the grand jury, with or without the aid of the foreperson or the prosecuting attorney, to determine if a substantial foundation exists for the public report. If the presentment censures a public official and the Assignment Judge determines not to strike, a copy of the presentment shall forthwith be served upon the public official who may, within 10 days thereafter, move for a hearing, which shall be held in camera. The public official may examine the grand jury minutes fully, under such reasonable supervision as the court deems advisable, and be permitted to introduce additional evidence to expose any deficiency. (d) Filing and Publication. Such portions of the presentment as are not referred back to the grand jury for further action or are not stricken in accordance with paragraph (c) of this rule shall be filed and made public, and the Assignment Judge shall instruct the clerk of the grand jury to send copies thereof to such public bodies or officials as may be concerned with the criticisms and recommendations made therein and to the Administrative Director of the Courts. The presentment or any portion thereof shall not be made public by any person except the Assignment Judge. The Assignment Judge shall withhold publication of the presentment until the expiration of the time for the making of a motion for a hearing by a public official pursuant to R. 3:6-9(c), and if such motion is made, shall withhold publication of the presentment pending the judge's determination. (e) Review. The action taken by the Assignment Judge pursuant to this rule is judicial in nature and is subject to review for abuse of discretion by the State or by any aggrieved person, including any member of the grand jury making the presentment.
Note: Source-R.R. 3:3-9(a)(b)(c)(d)(e); paragraphs (a), (b), (c) and (d) amended July 13, 1994to be effective September 1, 1994. 3:6-10. Discharge; Continuance of Term
(a) Term. A grand jury shall serve until discharged by the Assignment Judge, but not longer than 20 weeks unless the Assignment Judge shall order it continued as hereinafter provided. A grand jury shall not be discharged before the expiration of its term of service except for good cause. The continuance of such grand jury shall not affect the usual drawing, selecting and serving of further grand juries. (b) Order for Continuance. Whenever it appears to the Assignment Judge that the grand jury has not completed its labors, although its ordinary term is about to expire, the Assignment Judge may, if satisfied of the necessity therefor, order that its term be continued. The order shall be made and filed within the session of court for which such grand jury shall have been drawn, and shall provide a continuance for a definite period of time not exceeding 3 calendar months, provided, however, that the Assignment Judge may make a further order, or orders, continuing such grand jury in office for a further term or terms of 3 calendar months each.
Note: Source-R.R. 3:3-10(a)(b)(c); paragraph (b) amended July 13, 1994 to be effective September 1, 1994. 3:6-11. Impanelment and Judicial Supervision of State Grand Jury
(a) Generally. All rules relating to grand juries shall apply to the State Grand Jury except as otherwise specifically provided by statute or rule. (b) Designation of Assignment Judge. The Chief Justice shall designate an Assignment Judge of the Superior Court to impanel and supervise the State Grand Jury or Grand Juries. The Chief Justice may also designate one or more Judges of the Superior Court to assist said Assignment Judge with regard to impanelment and supervision of the State Grand Jury or Grand Juries and to perform such other duties and responsibilities with regard thereto as ordered by the Chief Justice or the designated Assignment Judge.
Note: Adopted July 17, 1975 to be effective September 8, 1975.
Definitions relative to disruption of funerals
violations, disorderly persons offense.
2. a. As used in this act:
"funeral" means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead; and
"demonstration" includes the following:
(1)any picketing or similar conduct,
(2)any oration, speech, use of sound amplification equipment or device, or similar conduct that is not part of a funeral,
(3)the display of any placard, banner, flag, or similar device, unless such a display is part of a funeral, or
(4)the distribution of any handbill, pamphlet, leaflet, or other written or printed matter other than a program distributed as part of a funeral.
b.A person is guilty of disrupting a funeral if, during the period beginning one hour prior to the scheduled commencement of a funeral, and until one hour following the actual completion of the funeral, with the purpose of causing inconvenience, annoyance or alarm to the funeral or its participants, or of recklessly creating the risk thereof, the person knowingly:
(1)obstructs, hinders, impedes or blocks another person's entry to or exit from the funeral, the funeral procession, the funeral home, church, synagogue, temple or other place of public worship or other location at which a funeral takes place as part of demonstration activities, or
(2)engages in demonstration activities within 500 feet of the funeral, the funeral procession, the funeral home, church, synagogue, temple or other place of public worship or other location at which a funeral takes place and makes or assists in the making of noise, diversions, or threatening gestures, or engages in any other disruptive conduct, that disrupts or tends to disrupt the peace or good order of the funeral.
c.Disrupting a funeral is a disorderly persons offense.
L. 2006, c.93, s.2.
2. a. As used in this act:
"funeral" means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead; and
"demonstration" includes the following:
(1)any picketing or similar conduct,
(2)any oration, speech, use of sound amplification equipment or device, or similar conduct that is not part of a funeral,
(3)the display of any placard, banner, flag, or similar device, unless such a display is part of a funeral, or
(4)the distribution of any handbill, pamphlet, leaflet, or other written or printed matter other than a program distributed as part of a funeral.
b.A person is guilty of disrupting a funeral if, during the period beginning one hour prior to the scheduled commencement of a funeral, and until one hour following the actual completion of the funeral, with the purpose of causing inconvenience, annoyance or alarm to the funeral or its participants, or of recklessly creating the risk thereof, the person knowingly:
(1)obstructs, hinders, impedes or blocks another person's entry to or exit from the funeral, the funeral procession, the funeral home, church, synagogue, temple or other place of public worship or other location at which a funeral takes place as part of demonstration activities, or
(2)engages in demonstration activities within 500 feet of the funeral, the funeral procession, the funeral home, church, synagogue, temple or other place of public worship or other location at which a funeral takes place and makes or assists in the making of noise, diversions, or threatening gestures, or engages in any other disruptive conduct, that disrupts or tends to disrupt the peace or good order of the funeral.
c.Disrupting a funeral is a disorderly persons offense.
L. 2006, c.93, s.2.
Fresh Pursuit
2A:156-2 Fresh Pursuit
2A:155-1. Short title
This chapter may be cited as the "uniform law on fresh pursuit."
L.1951 (1st SS), c.344
?2A:156-2. "Fresh pursuit" defined
The term "fresh pursuit" as used in this chapter shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a high misdemeanor or is reasonably suspected of having committed a high misdemeanor in this state, or who has committed or attempted to commit any criminal offense in this state in the presence of the arresting officer referred to in section 2A:156-1 of this title, or for whom such officer holds a warrant of arrest for a criminal offense. It shall also include the pursuit of a person suspected of having committed a supposed high misdemeanor in this state, though no high misdemeanor has actually been committed, if there is reasonable ground for so believing. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
?2A:155-2. Definitions? As used in this chapter:
"State" shall include the District of Columbia.
"Fresh pursuit" shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
"Felony" shall include high misdemeanor
L.1951 (1st SS), c.344.
2A:155-3. Application and construction of chapter
The provisions of this chapter shall be applicable only to such officers of a state which has enacted a statute similar to the provisions hereof, and this chapter shall be so interpreted and construed as to effectuate the general purpose of making uniform the laws of the states which enact it
2A:155-4. Officers of other states in fresh pursuit; authority to make arrests in this state
Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.
L.1951 (1st SS), c.344.
2A:155-5. Hearing before magistrate; commitment or discharge
If an arrest is made in this state by an officer of another state in accordance with the provisions of section 2A:155-4 of this title, he shall, without unnecessary delay, take the person arrested before a neighboring magistrate, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state or admit him to bail for such purpose. If the magistrate determines that the arrest was unlawful he shall discharge the person arrested.
L.1951 (1st SS), c.344
2A:155-6. Lawfulness of arrest
Section 2A:155-4 of this title shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
2A:155-7. Copies of chapter to other states
It shall be the duty of the secretary of state to certify a copy of this chapter to the executive department of each of the states of the United States.
L.1951 (1st SS), c.344
2A:156-1. Peace officer in fresh pursuit may arrest anywhere in state
Any peace officer of this state in fresh pursuit of a person who is reasonably believed by him to have committed a high misdemeanor in this state or has committed, or attempted to commit, any criminal offense in this state in the presence of such officer, or for whom such officer holds a warrant of arrest for a criminal offense, shall have the authority to arrest and hold in custody such person anywhere in this state.? ?L.1951 (1st SS), c.344
2A:156-3. Validity of arrest
Section 2A:156-1 of this title shall not make unlawful an arrest which would otherwise be lawful.
L.1951 (1st SS), c.344.
2A:156-4. Short title
This chapter may be cited as the "uniform act on intrastate fresh pursuit" .?
2A:155-1. Short title
This chapter may be cited as the "uniform law on fresh pursuit."
L.1951 (1st SS), c.344
?2A:156-2. "Fresh pursuit" defined
The term "fresh pursuit" as used in this chapter shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a high misdemeanor or is reasonably suspected of having committed a high misdemeanor in this state, or who has committed or attempted to commit any criminal offense in this state in the presence of the arresting officer referred to in section 2A:156-1 of this title, or for whom such officer holds a warrant of arrest for a criminal offense. It shall also include the pursuit of a person suspected of having committed a supposed high misdemeanor in this state, though no high misdemeanor has actually been committed, if there is reasonable ground for so believing. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
?2A:155-2. Definitions? As used in this chapter:
"State" shall include the District of Columbia.
"Fresh pursuit" shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
"Felony" shall include high misdemeanor
L.1951 (1st SS), c.344.
2A:155-3. Application and construction of chapter
The provisions of this chapter shall be applicable only to such officers of a state which has enacted a statute similar to the provisions hereof, and this chapter shall be so interpreted and construed as to effectuate the general purpose of making uniform the laws of the states which enact it
2A:155-4. Officers of other states in fresh pursuit; authority to make arrests in this state
Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.
L.1951 (1st SS), c.344.
2A:155-5. Hearing before magistrate; commitment or discharge
If an arrest is made in this state by an officer of another state in accordance with the provisions of section 2A:155-4 of this title, he shall, without unnecessary delay, take the person arrested before a neighboring magistrate, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state or admit him to bail for such purpose. If the magistrate determines that the arrest was unlawful he shall discharge the person arrested.
L.1951 (1st SS), c.344
2A:155-6. Lawfulness of arrest
Section 2A:155-4 of this title shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
2A:155-7. Copies of chapter to other states
It shall be the duty of the secretary of state to certify a copy of this chapter to the executive department of each of the states of the United States.
L.1951 (1st SS), c.344
2A:156-1. Peace officer in fresh pursuit may arrest anywhere in state
Any peace officer of this state in fresh pursuit of a person who is reasonably believed by him to have committed a high misdemeanor in this state or has committed, or attempted to commit, any criminal offense in this state in the presence of such officer, or for whom such officer holds a warrant of arrest for a criminal offense, shall have the authority to arrest and hold in custody such person anywhere in this state.? ?L.1951 (1st SS), c.344
2A:156-3. Validity of arrest
Section 2A:156-1 of this title shall not make unlawful an arrest which would otherwise be lawful.
L.1951 (1st SS), c.344.
2A:156-4. Short title
This chapter may be cited as the "uniform act on intrastate fresh pursuit" .?
Former prosecution in another jurisdiction
2C:1-11. Former prosecution in another jurisdiction: when a bar.
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:
a. The first prosecution resulted in an acquittal or in a conviction, or in an improper termination as defined in section 2C:1-9 and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began; or
b. The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:
a. The first prosecution resulted in an acquittal or in a conviction, or in an improper termination as defined in section 2C:1-9 and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began; or
b. The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted
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, including retail sales receipts, universal product code (UPC) labels and checks. This section shall apply without limitation to forged, copied or imitated checks.
As used in this section, "information" includes, but is not limited to, personal identifying information as defined in subsection v. of N.J.S.2C:20-1.
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, New Jersey Prescription Blanks as referred to in R.S.45:14-14, or part of an issue of stock, bonds or other instruments representing interest in or claims against any property or enterprise, personal identifying information or an access device. Forgery is a crime of the third degree if the writing is or purports to be a check. Forgery is a crime of the third degree if the writing is or purports to be 15 or more forged or altered retail sales receipts or universal product code labels.
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 and personal identifying information, he makes or possesses any device, apparatus, equipment, computer, computer equipment, computer software or article specially designed or adapted to such use.
L.1978, c.95; amended 1981, c.290, s.20; 1996, c.154, s.10; 1997, c.6, s.5; 2001, c.110, s.1; 2002, c.85, s.2.
2C:21-2. Criminal simulation
A person commits a crime of the fourth degree if, with purpose to defraud anyone or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he makes, alters or utters any object so that it appears to have value because of antiquity, rarity, source, or authorship which it does not possess.
L.1978, c. 95, s. 2C:21-2, eff. Sept. 1, 1979.
2C:21-2.1 Offenses involving false government documents, degree of crime.
1. a. A person who knowingly sells, offers or exposes for sale, or otherwise transfers, or possesses with the intent to sell, offer or expose for sale, or otherwise transfer, a document, printed form or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the second degree.
b.A person who knowingly makes, or possesses devices or materials to make, a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the second degree.
c.A person who knowingly exhibits, displays or utters a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the third degree. A violation of N.J.S.2C:28-7, constituting a disorderly persons offense, section 1 of P.L.1979, c.264 (C.2C:33-15), R.S.33:1-81 or section 6 of P.L.1968, c.313 (C.33:1-81.7) in a case where the person uses the personal identifying information of another to illegally purchase an alcoholic beverage or for using the personal identifying information of another to misrepresent his age for the purpose of obtaining tobacco or other consumer product denied to persons under 18 years of age shall not constitute an offense under this subsection if the actor received only that benefit or service and did not perpetrate or attempt to perpetrate any additional injury or fraud on another.
d.A person who knowingly possesses a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the fourth degree. A violation of N.J.S.2C:28-7, constituting a disorderly persons offense, section 1 of P.L.1979, c.264 (C.2C:33-15), R.S.33:1-81 or section 6 of P.L.1968, c.313 (C.33:1-81.7) in a case where the person uses the personal identifying information of another to illegally purchase an alcoholic beverage or for using the personal identifying information of another to misrepresent his age for the purpose of obtaining tobacco or other consumer product denied to persons under 18 years of age shall not constitute an offense under this subsection if the actor received only that benefit or service and did not perpetrate or attempt to perpetrate any additional injury or fraud on another.
e.In addition to any other disposition authorized by this Title, the provisions of section 24 of P.L.1982, c.77 (C.2A:4A-43), or any other statute indicating the dispositions that may be ordered for an adjudication of delinquency, and, notwithstanding the provisions of subsection c. of N.J.S.2C:43-2, every person convicted of or adjudicated delinquent for a violation of any offense defined in this section shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period to be fixed by the court at not less than six months or more than two years which shall commence on the day the sentence is imposed. In the case of any person who at the time of the imposition of the sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of not less than six months or more than two years after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension or postponement.
The court before whom any person is convicted of or adjudicated delinquent for a violation of any offense defined in this section shall collect forthwith the New Jersey driver's license or licenses of that person and forward the license or licenses to the Chief Administrator of the New Jersey Motor Vehicle Commission along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. The report shall include the complete name, address, date of birth, eye color and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section, the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the license, but shall notify forthwith the director who shall notify the appropriate officials in that licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving privileges in this State.
In addition to any other condition imposed, a court, in its discretion, may suspend, revoke or postpone the driving privileges of a person admitted to supervisory treatment under N.J.S.2C:36A-1 or N.J.S.2C:43-12 without a plea of guilty or finding of guilt.
(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, including retail sales receipts, universal product code (UPC) labels and checks. This section shall apply without limitation to forged, copied or imitated checks.
As used in this section, "information" includes, but is not limited to, personal identifying information as defined in subsection v. of N.J.S.2C:20-1.
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, New Jersey Prescription Blanks as referred to in R.S.45:14-14, or part of an issue of stock, bonds or other instruments representing interest in or claims against any property or enterprise, personal identifying information or an access device. Forgery is a crime of the third degree if the writing is or purports to be a check. Forgery is a crime of the third degree if the writing is or purports to be 15 or more forged or altered retail sales receipts or universal product code labels.
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 and personal identifying information, he makes or possesses any device, apparatus, equipment, computer, computer equipment, computer software or article specially designed or adapted to such use.
L.1978, c.95; amended 1981, c.290, s.20; 1996, c.154, s.10; 1997, c.6, s.5; 2001, c.110, s.1; 2002, c.85, s.2.
2C:21-2. Criminal simulation
A person commits a crime of the fourth degree if, with purpose to defraud anyone or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he makes, alters or utters any object so that it appears to have value because of antiquity, rarity, source, or authorship which it does not possess.
L.1978, c. 95, s. 2C:21-2, eff. Sept. 1, 1979.
2C:21-2.1 Offenses involving false government documents, degree of crime.
1. a. A person who knowingly sells, offers or exposes for sale, or otherwise transfers, or possesses with the intent to sell, offer or expose for sale, or otherwise transfer, a document, printed form or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the second degree.
b.A person who knowingly makes, or possesses devices or materials to make, a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the second degree.
c.A person who knowingly exhibits, displays or utters a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the third degree. A violation of N.J.S.2C:28-7, constituting a disorderly persons offense, section 1 of P.L.1979, c.264 (C.2C:33-15), R.S.33:1-81 or section 6 of P.L.1968, c.313 (C.33:1-81.7) in a case where the person uses the personal identifying information of another to illegally purchase an alcoholic beverage or for using the personal identifying information of another to misrepresent his age for the purpose of obtaining tobacco or other consumer product denied to persons under 18 years of age shall not constitute an offense under this subsection if the actor received only that benefit or service and did not perpetrate or attempt to perpetrate any additional injury or fraud on another.
d.A person who knowingly possesses a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the fourth degree. A violation of N.J.S.2C:28-7, constituting a disorderly persons offense, section 1 of P.L.1979, c.264 (C.2C:33-15), R.S.33:1-81 or section 6 of P.L.1968, c.313 (C.33:1-81.7) in a case where the person uses the personal identifying information of another to illegally purchase an alcoholic beverage or for using the personal identifying information of another to misrepresent his age for the purpose of obtaining tobacco or other consumer product denied to persons under 18 years of age shall not constitute an offense under this subsection if the actor received only that benefit or service and did not perpetrate or attempt to perpetrate any additional injury or fraud on another.
e.In addition to any other disposition authorized by this Title, the provisions of section 24 of P.L.1982, c.77 (C.2A:4A-43), or any other statute indicating the dispositions that may be ordered for an adjudication of delinquency, and, notwithstanding the provisions of subsection c. of N.J.S.2C:43-2, every person convicted of or adjudicated delinquent for a violation of any offense defined in this section shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period to be fixed by the court at not less than six months or more than two years which shall commence on the day the sentence is imposed. In the case of any person who at the time of the imposition of the sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of not less than six months or more than two years after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension or postponement.
The court before whom any person is convicted of or adjudicated delinquent for a violation of any offense defined in this section shall collect forthwith the New Jersey driver's license or licenses of that person and forward the license or licenses to the Chief Administrator of the New Jersey Motor Vehicle Commission along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. The report shall include the complete name, address, date of birth, eye color and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section, the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the license, but shall notify forthwith the director who shall notify the appropriate officials in that licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving privileges in this State.
In addition to any other condition imposed, a court, in its discretion, may suspend, revoke or postpone the driving privileges of a person admitted to supervisory treatment under N.J.S.2C:36A-1 or N.J.S.2C:43-12 without a plea of guilty or finding of guilt.
Fines and Restitutions
2C:44-2. Fines and Restitutions
Criteria for Imposing Fines and Restitutions
a. The court may sentence a defendant to pay a fine in addition to a sentence of imprisonment or probation if:
(1) The defendant has derived a pecuniary gain from the offense or the court is of opinion that a fine is specially adapted to deterrence of the type of offense involved or to the correction of the offender;
(2) The defendant is able, or given a fair opportunity to do so, will be able to pay the fine; and
(3) The fine will not prevent the defendant from making restitution to the victim of the offense.
b. The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if:
(1) The victim, or in the case of a homicide, the nearest relative of the victim, suffered a loss; and
(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.
c. (1) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.
(2) In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay. The court shall not reduce a restitution award by any amount that the victim has received from the Violent Crimes Compensation Board, but shall order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board. If restitution to more than one person is set at the same time, the court shall set priorities of payment.
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 2C:46-2.
e. Whenever the maximum potential fine which may be imposed on a conviction for an offense defined in the "Comprehensive Drug Reform Act of 1986," N.J.S. 2C:35-1 et al. 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.
f. 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 to the extent necessary to avoid double compensation for the same loss, and the initial restitution judgment shall remain in full force and effect.
Criteria for Imposing Fines and Restitutions
a. The court may sentence a defendant to pay a fine in addition to a sentence of imprisonment or probation if:
(1) The defendant has derived a pecuniary gain from the offense or the court is of opinion that a fine is specially adapted to deterrence of the type of offense involved or to the correction of the offender;
(2) The defendant is able, or given a fair opportunity to do so, will be able to pay the fine; and
(3) The fine will not prevent the defendant from making restitution to the victim of the offense.
b. The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if:
(1) The victim, or in the case of a homicide, the nearest relative of the victim, suffered a loss; and
(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.
c. (1) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.
(2) In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay. The court shall not reduce a restitution award by any amount that the victim has received from the Violent Crimes Compensation Board, but shall order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board. If restitution to more than one person is set at the same time, the court shall set priorities of payment.
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 2C:46-2.
e. Whenever the maximum potential fine which may be imposed on a conviction for an offense defined in the "Comprehensive Drug Reform Act of 1986," N.J.S. 2C:35-1 et al. 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.
f. 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 to the extent necessary to avoid double compensation for the same loss, and the initial restitution judgment shall remain in full force and effect.
The Fifth Amendment - "To take the 5th"
Self-incrimination
The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence.
Civil or criminal proceedings
Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the privilege against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)).
People have asserted the privilege in grand jury or in congressional hearings in the 1950s, where witnesses testifying before the House Committee on Un-American Activities and the Senate Internal Security Subcommittee claimed the privilege in response to questions concerning their alleged membership in the Communist Party. The amendment has also been used by defendants and witnesses in criminal cases involving the Mafia. The Supreme Court has also used the incorporation doctrine to apply the self-incrimination clause against the states under the Fourteenth Amendment.
Source: http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution
The New Jersey Supreme Court recognized the right of a witness to "take the 5th" if called as a witness at a trial. State of New Jersey v. P.Z. (A-21-96) - Decided November 26, 1997
The Supreme Court wrote:
"The Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment, provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. As explained in Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493, 12 L. Ed.2d 653, 659 (1964), the Fifth Amendment protects “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own free will, and to suffer no penalty . . . for such silence.” It reflects our understanding that government is “constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” Ibid.
In New Jersey, the privilege is derived from the common law and is codified in our statutes and rules. State v. Reed, 133 N.J. 237, 250 (1993); see N.J.S.A. 2A:84-19; N.J.R.E. 503. Its importance is not diminished by the lack of specific constitutional articulation; rather, from colonial times, “New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right.” Reed, supra, 133 N.J. at 250.
A person invoking the privilege against self-incrimination may do so “'in any . . . proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him in future criminal proceedings.'” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed.2d 409, 418 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed.2d 274, 281 (1973)); Banca v. Town of Phillipsburg, 181 N.J. Super. 109, 114-15 (App. Div. 1981); see New Jersey Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994). However, the privilege is not self-executing under either federal or state law and must be invoked by anyone claiming its protection. Murphy, supra, 465 U.S. at 428-29, 104 S. Ct. at 1142-43, 79 L. Ed. 2d at 419-20; Reed, supra, 133 N.J. at 251. Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary. Murphy, supra, 465 U.S. at 429, 104 S. Ct. at 1143, 79 L. Ed. 2d at 420; State v. Fary, 19 N.J. 431, 435 (1955)."
The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence.
Civil or criminal proceedings
Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the privilege against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)).
People have asserted the privilege in grand jury or in congressional hearings in the 1950s, where witnesses testifying before the House Committee on Un-American Activities and the Senate Internal Security Subcommittee claimed the privilege in response to questions concerning their alleged membership in the Communist Party. The amendment has also been used by defendants and witnesses in criminal cases involving the Mafia. The Supreme Court has also used the incorporation doctrine to apply the self-incrimination clause against the states under the Fourteenth Amendment.
Source: http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution
The New Jersey Supreme Court recognized the right of a witness to "take the 5th" if called as a witness at a trial. State of New Jersey v. P.Z. (A-21-96) - Decided November 26, 1997
The Supreme Court wrote:
"The Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment, provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. As explained in Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493, 12 L. Ed.2d 653, 659 (1964), the Fifth Amendment protects “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own free will, and to suffer no penalty . . . for such silence.” It reflects our understanding that government is “constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” Ibid.
In New Jersey, the privilege is derived from the common law and is codified in our statutes and rules. State v. Reed, 133 N.J. 237, 250 (1993); see N.J.S.A. 2A:84-19; N.J.R.E. 503. Its importance is not diminished by the lack of specific constitutional articulation; rather, from colonial times, “New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right.” Reed, supra, 133 N.J. at 250.
A person invoking the privilege against self-incrimination may do so “'in any . . . proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him in future criminal proceedings.'” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed.2d 409, 418 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed.2d 274, 281 (1973)); Banca v. Town of Phillipsburg, 181 N.J. Super. 109, 114-15 (App. Div. 1981); see New Jersey Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994). However, the privilege is not self-executing under either federal or state law and must be invoked by anyone claiming its protection. Murphy, supra, 465 U.S. at 428-29, 104 S. Ct. at 1142-43, 79 L. Ed. 2d at 419-20; Reed, supra, 133 N.J. at 251. Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary. Murphy, supra, 465 U.S. at 429, 104 S. Ct. at 1143, 79 L. Ed. 2d at 420; State v. Fary, 19 N.J. 431, 435 (1955)."
False Reports to Law Enforcement Authority
[a. Falsely incriminating another. A person who knowingly gives or causes to be given false information to any law enforcement officer with purpose to implicate another commits a crime of the fourth degree.
b. Fictitious reports. A person commits a disorderly persons offense if he:
(1) Reports or causes to be reported to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
(2) Pretends to furnish or causes to be furnished such authorities with information relating to an offense or incident when he knows he has no information relating to such offense or incident.
L.1978, c. 95, s. 2C:28-4, eff. Sept. 1, 1979.]
b. Fictitious reports. A person commits a disorderly persons offense if he:
(1) Reports or causes to be reported to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
(2) Pretends to furnish or causes to be furnished such authorities with information relating to an offense or incident when he knows he has no information relating to such offense or incident.
L.1978, c. 95, s. 2C:28-4, eff. Sept. 1, 1979.]
No Expungement Involving Public Offense Crime. In the Matter of Expungement Application of P.A.E. , 176 NJ 218 (2003)
The expungement bar under the third paragraph of N.J.S.A. 2C:52-2b does not extend to private citizens who aid and abet public officeholders in the commission of crimes involving or touching their offices.
Escape
a. Escape. A person commits an offense if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. "Official detention" means arrest, 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, or any other detention for law enforcement purposes; but "official detention" does not include supervision of probation or parole, or constraint incidental to release on bail.
b. Absconding from parole. A person subject to parole commits a crime of the third degree if the person goes into hiding or leaves the State with a purpose of avoiding supervision. As used in this subsection, "parole" includes participation in the Intensive Supervision Program (ISP) established pursuant to the Rules Governing the Courts of the State of New Jersey. Abandoning a place of residence without the prior permission of or notice to the appropriate supervising authority shall constitute prima facie evidence that the person intended to avoid such supervision.
c. Permitting or facilitating escape. A public servant concerned in detention commits an offense if he knowingly or recklessly permits an escape. Any person who knowingly causes or facilitates an escape commits an offense.
d. Effect of legal irregularity in detention. Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, shall not be a defense to prosecution under this section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings. In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if:
(1) The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; or
(2) The detaining authority did not act in good faith under color of law.
e. Grading of offenses. An offense under subsection a. or c. of this section is a crime of the second degree where the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape. Otherwise it is a crime of the third degree.
L.1978, c.95; amended 1979,c.178,s.58A; 1981,c.290,s.30; 1991,c.34,s.1.
b. Absconding from parole. A person subject to parole commits a crime of the third degree if the person goes into hiding or leaves the State with a purpose of avoiding supervision. As used in this subsection, "parole" includes participation in the Intensive Supervision Program (ISP) established pursuant to the Rules Governing the Courts of the State of New Jersey. Abandoning a place of residence without the prior permission of or notice to the appropriate supervising authority shall constitute prima facie evidence that the person intended to avoid such supervision.
c. Permitting or facilitating escape. A public servant concerned in detention commits an offense if he knowingly or recklessly permits an escape. Any person who knowingly causes or facilitates an escape commits an offense.
d. Effect of legal irregularity in detention. Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, shall not be a defense to prosecution under this section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings. In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if:
(1) The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; or
(2) The detaining authority did not act in good faith under color of law.
e. Grading of offenses. An offense under subsection a. or c. of this section is a crime of the second degree where the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape. Otherwise it is a crime of the third degree.
L.1978, c.95; amended 1979,c.178,s.58A; 1981,c.290,s.30; 1991,c.34,s.1.
Entrapment
a. A public law enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by either:
(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
b. Except as provided in subsection c. of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
Suffice it to say, New Jersey law recognizes both statutory entrapment and due process entrapment. Under the Code of Criminal Justice, entrapment is an affirmative defense which the defendant must prove by a preponderance of the evidence. State v. Florez, 134 N.J. at 583. The statutory defense, N.J.S.A. 2C:2-12, has both subjective and objective elements. State v. Rockholt, 96 N.J. 570, 579 (1994). "Subjective entrapment occurs when the police implant a criminal plan in the mind of an innocent person who would not ordinarily have committed the offense." State v. Florez, 134 N.J. at 583-84. Objective entrapment takes place when the police conduct "is so egregious as to `impugn the integrity of the court'" permitting a conviction or "causes an average citizen to commit a crime." Id. at 584 (quoting State v. Fogarty, 128 N.J. at 65). "The statutory entrapment defense based upon both subjective and objective elements is an issue that the jury must determine." Ibid.
In contrast, due process entrapment focuses exclusively on government conduct. State v. Johnson, 127 N.J. at 470. Due process entrapment occurs when government conduct is "patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." Id. at 473; see generally State v. Talbot, 71 N.J. 160 (1976). Due process entrapment poses an issue of law that must be decided by the court. State v. Florez.
(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
b. Except as provided in subsection c. of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
Suffice it to say, New Jersey law recognizes both statutory entrapment and due process entrapment. Under the Code of Criminal Justice, entrapment is an affirmative defense which the defendant must prove by a preponderance of the evidence. State v. Florez, 134 N.J. at 583. The statutory defense, N.J.S.A. 2C:2-12, has both subjective and objective elements. State v. Rockholt, 96 N.J. 570, 579 (1994). "Subjective entrapment occurs when the police implant a criminal plan in the mind of an innocent person who would not ordinarily have committed the offense." State v. Florez, 134 N.J. at 583-84. Objective entrapment takes place when the police conduct "is so egregious as to `impugn the integrity of the court'" permitting a conviction or "causes an average citizen to commit a crime." Id. at 584 (quoting State v. Fogarty, 128 N.J. at 65). "The statutory entrapment defense based upon both subjective and objective elements is an issue that the jury must determine." Ibid.
In contrast, due process entrapment focuses exclusively on government conduct. State v. Johnson, 127 N.J. at 470. Due process entrapment occurs when government conduct is "patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." Id. at 473; see generally State v. Talbot, 71 N.J. 160 (1976). Due process entrapment poses an issue of law that must be decided by the court. State v. Florez.
COURT RULE 3:7. INDICTMENT AND ACCUSATION 3:7-1. Entitling of Papers
The indictment and all subsequent papers in connection therewith shall be entitled in the Superior Court.
Note: Source-R.R. 3:4-1(b). 3:7-2. Use of Indictment or Accusation
A crime punishable by death shall be prosecuted by indictment. Every other crime shall be prosecuted by indictment unless the defendant, after having been advised of the right to indictment, shall waive the right in a signed writing, in which case the defendant may be tried on accusation. Such accusation shall be prepared by the prosecuting attorney and entitled and proceeded upon in the Superior Court. Nothing herein contained, however, shall be construed as limiting the criminal jurisdiction of a municipal court over indictable offenses provided by law and these rules.
Note: Source-R.R. 3:4-2(a)(b). Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994. 3:7-3. Nature and Contents of Indictment or Accusation
(a) Nature and Contents Generally. The indictment or accusation shall be a written statement of the essential facts constituting the crime charged, need not contain a formal commencement and shall be signed by the prosecuting attorney. The indictment shall be endorsed as a true bill by the foreperson and conclude: "against the peace of this State, the government and dignity of the same." Allegations made in one count of the indictment or accusation may be incorporated by reference in another count. It may be alleged in a single count either that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant. Surplusage in the indictment or accusation may be stricken by the court on defendant's motion. (b) Indictment for Murder or Manslaughter. Every indictment for murder shall specify whether the act is murder as defined by N.J.S.A. 2C:11-3(a)(1), (2) or (3) and whether the defendant is alleged: (1) to have committed the act by his or her own conduct or (2) to have procured the commission of the offense by payment or promise of payment, of anything of pecuniary value or (3) to be the leader of a drug trafficking network, as defined in N.J.S.A.2C:35-3, and who, in furtherance of a conspiracy enumerated in N.J.S.A. 2C:35-3, commanded or by threat or promise solicited the commission of the offense. In every indictment for aggravated manslaughter or manslaughter, it is sufficient to charge that the defendant committed aggravated manslaughter or manslaughter contrary to N.J.S.A. 2C:11-4.
Note: Source-R.R. 3:4-3(a)(b)(c), 3:4-4. Paragraphs (a) and (b) amended August 28, 1979 to be effective September 1, 1979; paragraph (b) amended September 28, 1982 to be effective immediately; paragraph (b) amended July 13, 1993 to be effective immediately; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994. 3:7-4. Amendment of Indictment or Accusation
The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.
Note: Source-R.R. 3:4-5. Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994. 3:7-5. Bill of Particulars
A bill of particulars shall be ordered by the court if the indictment or accusation is not sufficiently specific to enable the defendant to prepare a defense. The defendant shall move therefore pursuant to Rule 3:10-2. The application shall point out clearly the particulars sought by the defense. The prosecutor shall furnish the bill of particulars within 10 days after the order of the court. Further particulars may be ordered when a demand therefor is promptly made. A bill of particulars may be amended at any time, subject to such conditions as the interest of justice requires. Any particulars that have been furnished to the defendant pursuant to R. 3:13-3 and 4 shall not be subject to an application pursuant to this rule.
Note: Source-R.R. 3:4-6; amended June 29, 1990, to be effective September 4, 1990; amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995. 3:7-6. Joinder of Offenses
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as providedby R. 3:15-2.
Note: Source-R.R. 3:4-7; amended August 28, 1979 to be effective September 1, 1979. 3:7-7. Joinder of Defendants
Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or accusation as to one or more of several defendants joined in the same indictment or accusation shall not affect the right of the State to proceed against the other defendants. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.
Note: Source-R.R. 3:4-8. 3:7-8. Issuance of Warrant or Summons Upon Indictment or Accusation
Upon the return of an indictment or the filing of an accusation a summons or warrant shall be issued in accordance with R. 3:3-1 by the criminal division manager as designee of the deputy clerk of the Superior Court in the manner provided by law for each defendant named in the indictment or accusation who is not under bail. The criminal division manager as designee of the deputy clerk of the Superior Court, upon request, shall issue more than one warrant or summons for the same defendant. If the defendant fails to appear in response to a summons, a warrant shall issue. If a summons is issued upon indictment to a defendant who has not been previously held to answer a complaint, the defendant shall undergo all post-arrest identification procedures that are required by law upon arrest, on the return date of the summons, or upon written request of the appropriate law enforcement agency.
Note: Source-R.R. 3:4-9. Amended July 22, 1983 to be effective September 12, 1983; amended July 13, 1994 to be effective January 1, 1995. 3:7-9. Form of Warrant and Summons
The warrant shall contain the name of the defendant or, if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty, shall describe the offense charged in the indictment or accusation and shall command that the defendant be arrested and brought before the court. Conditions of pretrial release shall be fixed by the court and endorsed thereon, and in such case the sheriff or warden may take any bail. The summons shall be in the same form as the warrant except that it shall be directed to thedefendant and require the defendant to appear to plead before the court at a stated time and place. The summons shall also state that if the defendant fails to so appear, a warrant for defendant's arrest shall issue.
Note: Source-R.R. 3:4-10(a)(b); amended July 13, 1994 to be effective January 1, 1995. 3:7-10. Execution of Service; Return
(a) Execution of Warrant. The warrant shall be executed in accordance with R. 3:3-3. (b) Summons to an Individual. The summons shall be served upon an individual in accordance with R. 4:4-4. (c) Summons to a Corporation. Service of a summons upon a defendant corporation, municipal or otherwise, shall be made in accordance with R. 4:4-4. If the defendant corporation does not appear, the court shall order the clerk to enter an appearance for said corporation and endorse the plea of not guilty on the indictment or accusation, and further proceedings may then be had thereon in the same manner as if the corporation had appeared and so pleaded. A plea to an indictment or accusation by a defendant corporation shall be made by an attorney of this State. (d) Service Upon a Corporation by Publication. If the summons directed to a corporation is returned "not served" and it appears to the satisfaction of the court that the summons could not be served, the court shall by order direct the corporation to cause its appearance and plea to be entered by a day certain. A copy of such order shall within 5 days after the date thereof be published in a newspaper in this State once, at least 2 weeks preceding the day certain so specified. If the defendant corporation does not appear within the time specified by the order, the court, if satisfied that publication has been duly made, shall direct the clerk to enter an appearance and a plea of "not guilty" for the defendant corporation, and thereupon further proceedings may be had on the indictment or accusation as provided by these rules. (e) Return. The officer executing a warrant shall make prompt return thereof to the court, and at the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. The officer serving a summons shall make return thereof on or before the return day. At the request of the prosecuting attorney made at any time while the indictment or accusation is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to the sheriff or other authorized officer for execution or service.
Note: Source-R.R. 3:4-11, 3:4-12(a)(b), 3:4-13. Paragraph (d) amended July 7, 1971 to be effective September 13, 1971.
Note: Source-R.R. 3:4-1(b). 3:7-2. Use of Indictment or Accusation
A crime punishable by death shall be prosecuted by indictment. Every other crime shall be prosecuted by indictment unless the defendant, after having been advised of the right to indictment, shall waive the right in a signed writing, in which case the defendant may be tried on accusation. Such accusation shall be prepared by the prosecuting attorney and entitled and proceeded upon in the Superior Court. Nothing herein contained, however, shall be construed as limiting the criminal jurisdiction of a municipal court over indictable offenses provided by law and these rules.
Note: Source-R.R. 3:4-2(a)(b). Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994. 3:7-3. Nature and Contents of Indictment or Accusation
(a) Nature and Contents Generally. The indictment or accusation shall be a written statement of the essential facts constituting the crime charged, need not contain a formal commencement and shall be signed by the prosecuting attorney. The indictment shall be endorsed as a true bill by the foreperson and conclude: "against the peace of this State, the government and dignity of the same." Allegations made in one count of the indictment or accusation may be incorporated by reference in another count. It may be alleged in a single count either that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant. Surplusage in the indictment or accusation may be stricken by the court on defendant's motion. (b) Indictment for Murder or Manslaughter. Every indictment for murder shall specify whether the act is murder as defined by N.J.S.A. 2C:11-3(a)(1), (2) or (3) and whether the defendant is alleged: (1) to have committed the act by his or her own conduct or (2) to have procured the commission of the offense by payment or promise of payment, of anything of pecuniary value or (3) to be the leader of a drug trafficking network, as defined in N.J.S.A.2C:35-3, and who, in furtherance of a conspiracy enumerated in N.J.S.A. 2C:35-3, commanded or by threat or promise solicited the commission of the offense. In every indictment for aggravated manslaughter or manslaughter, it is sufficient to charge that the defendant committed aggravated manslaughter or manslaughter contrary to N.J.S.A. 2C:11-4.
Note: Source-R.R. 3:4-3(a)(b)(c), 3:4-4. Paragraphs (a) and (b) amended August 28, 1979 to be effective September 1, 1979; paragraph (b) amended September 28, 1982 to be effective immediately; paragraph (b) amended July 13, 1993 to be effective immediately; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994. 3:7-4. Amendment of Indictment or Accusation
The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.
Note: Source-R.R. 3:4-5. Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994. 3:7-5. Bill of Particulars
A bill of particulars shall be ordered by the court if the indictment or accusation is not sufficiently specific to enable the defendant to prepare a defense. The defendant shall move therefore pursuant to Rule 3:10-2. The application shall point out clearly the particulars sought by the defense. The prosecutor shall furnish the bill of particulars within 10 days after the order of the court. Further particulars may be ordered when a demand therefor is promptly made. A bill of particulars may be amended at any time, subject to such conditions as the interest of justice requires. Any particulars that have been furnished to the defendant pursuant to R. 3:13-3 and 4 shall not be subject to an application pursuant to this rule.
Note: Source-R.R. 3:4-6; amended June 29, 1990, to be effective September 4, 1990; amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995. 3:7-6. Joinder of Offenses
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as providedby R. 3:15-2.
Note: Source-R.R. 3:4-7; amended August 28, 1979 to be effective September 1, 1979. 3:7-7. Joinder of Defendants
Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or accusation as to one or more of several defendants joined in the same indictment or accusation shall not affect the right of the State to proceed against the other defendants. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.
Note: Source-R.R. 3:4-8. 3:7-8. Issuance of Warrant or Summons Upon Indictment or Accusation
Upon the return of an indictment or the filing of an accusation a summons or warrant shall be issued in accordance with R. 3:3-1 by the criminal division manager as designee of the deputy clerk of the Superior Court in the manner provided by law for each defendant named in the indictment or accusation who is not under bail. The criminal division manager as designee of the deputy clerk of the Superior Court, upon request, shall issue more than one warrant or summons for the same defendant. If the defendant fails to appear in response to a summons, a warrant shall issue. If a summons is issued upon indictment to a defendant who has not been previously held to answer a complaint, the defendant shall undergo all post-arrest identification procedures that are required by law upon arrest, on the return date of the summons, or upon written request of the appropriate law enforcement agency.
Note: Source-R.R. 3:4-9. Amended July 22, 1983 to be effective September 12, 1983; amended July 13, 1994 to be effective January 1, 1995. 3:7-9. Form of Warrant and Summons
The warrant shall contain the name of the defendant or, if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty, shall describe the offense charged in the indictment or accusation and shall command that the defendant be arrested and brought before the court. Conditions of pretrial release shall be fixed by the court and endorsed thereon, and in such case the sheriff or warden may take any bail. The summons shall be in the same form as the warrant except that it shall be directed to thedefendant and require the defendant to appear to plead before the court at a stated time and place. The summons shall also state that if the defendant fails to so appear, a warrant for defendant's arrest shall issue.
Note: Source-R.R. 3:4-10(a)(b); amended July 13, 1994 to be effective January 1, 1995. 3:7-10. Execution of Service; Return
(a) Execution of Warrant. The warrant shall be executed in accordance with R. 3:3-3. (b) Summons to an Individual. The summons shall be served upon an individual in accordance with R. 4:4-4. (c) Summons to a Corporation. Service of a summons upon a defendant corporation, municipal or otherwise, shall be made in accordance with R. 4:4-4. If the defendant corporation does not appear, the court shall order the clerk to enter an appearance for said corporation and endorse the plea of not guilty on the indictment or accusation, and further proceedings may then be had thereon in the same manner as if the corporation had appeared and so pleaded. A plea to an indictment or accusation by a defendant corporation shall be made by an attorney of this State. (d) Service Upon a Corporation by Publication. If the summons directed to a corporation is returned "not served" and it appears to the satisfaction of the court that the summons could not be served, the court shall by order direct the corporation to cause its appearance and plea to be entered by a day certain. A copy of such order shall within 5 days after the date thereof be published in a newspaper in this State once, at least 2 weeks preceding the day certain so specified. If the defendant corporation does not appear within the time specified by the order, the court, if satisfied that publication has been duly made, shall direct the clerk to enter an appearance and a plea of "not guilty" for the defendant corporation, and thereupon further proceedings may be had on the indictment or accusation as provided by these rules. (e) Return. The officer executing a warrant shall make prompt return thereof to the court, and at the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. The officer serving a summons shall make return thereof on or before the return day. At the request of the prosecuting attorney made at any time while the indictment or accusation is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to the sheriff or other authorized officer for execution or service.
Note: Source-R.R. 3:4-11, 3:4-12(a)(b), 3:4-13. Paragraph (d) amended July 7, 1971 to be effective September 13, 1971.
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