An Act concerning criminal street gangs, supplementing Title 2A of the New Jersey Statutes, and amending N.J.S.2C:29-9 and N.J.S.2C:44-1.

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

1. (New section) The Legislature finds and declares:

a. Criminal street gangs are a public nuisance. A criminal street gang is an unincorporated association that exists for the purpose of organized criminal activity. In many communities throughout the State, gangs conduct systematic campaigns of intimidation, which interfere with the public's right to use and enjoy public and private property, impede the ability of communities to educate children, undermine commerce, subvert law enforcement, and reduce civic engagement.

b. The prevalence of criminal street gangs in the State and the inability of law enforcement to control gang violence and intimidation through traditional law enforcement methods justify authorizing courts to temporarily enjoin criminal street gangs from operating within specifically designated geographic areas in neighborhoods destabilized by gang activity. Acts, which in themselves are not illegal, committed by a member of a criminal street gang in furtherance of the gang's purposes may be enjoined for the benefit of public safety in times of crisis.

c. While it is not the intent of the Legislature to deprive any person of a right protected by the Constitution of this State or the United States, the Legislature recognizes that individual rights must be balanced against society's duty to ensure that residents are not terrorized by criminal street gangs.

2. (New section) a. As used in this section:

"Criminal street gang" means a "criminal street gang" as defined in subsection a. of section 1 of P.L.2007, c.341 (C.2C:33-29).

b. The Attorney General or the prosecutor of the county in which a criminal street gang operates may bring a civil action in the name of the State to enjoin a criminal street gang from operating within a defined geographic area. An action under this section shall be instituted by the filing of a verified petition in the Superior Court of the county encompassing the geographic area designated in the petition for the injunction. The petition shall include:

(1) a description of the geographic area covered by the injunction;

(2) the name of the criminal street gang and the activities of the criminal street gang in the specified geographic area;

(3) a detailed enumeration of the activities to be prohibited by the injunction sought; and

(4) any other information required by the court.

c. After the filing of the petition, application for an injunction may be made to the court.

d. A copy of the petition and a notice of the time and place of the hearing on the injunction, shall be served upon at least three members of the criminal street gang that are frequently present in the designated geographic area no later than five days before the hearing and in accordance with court rule.

e. At the hearing, the Attorney General or the prosecutor seeking the injunction shall have the burden of proving by clear and convincing evidence that:

(1) the facts contained in the petition are true;

(2) the activities enjoined are committed by criminal street gang members in furtherance of a criminal street gang active within the defined geographic area; and

(3) the terms of the injunction are narrowly tailored to address the acts of the criminal street gang.

f. The court may enter an order enjoining the criminal street gang from any act committed in furtherance of the gang. An injunction issued pursuant to this section may not exceed one year in duration.

3. N.J.S.2C:29-9 is amended to read as follows:

2C:29-9. Contempt. a. A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or protective order, pursuant to section 1 of P.L.1985, c.250 (C.2C:28-5.1), or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.

b. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the provisions of this subsection.

As used in this subsection, "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by a federal law or formally acknowledged by a state.

c. A person is guilty of a disorderly persons offense if he violates a term of an injunction issued pursuant to section 2 of P.L. , c. (C. )(pending before the Legislature as this bill) after being served with a copy of the injunction, but the presumption against incarceration contained in subsection e. of N.J.S.2C:44-1 shall not apply. A court may require a person convicted under this subsection to complete a job-training or education program in lieu of imprisonment.

(cf: P.L.2008, c.81, s.3)

4. N.J.S.2C:44-1 is amended to read as follows:

2C:44-1. Criteria for Withholding or Imposing Sentence of Imprisonment. a. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:

(1) The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;

(2) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;

(3) The risk that the defendant will commit another offense;

(4) A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;

(5) There is a substantial likelihood that the defendant is involved in organized criminal activity;

(6) The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;

(7) The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;

(8) The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person's status as a sports official, coach or manager;

(9) The need for deterring the defendant and others from violating the law;

(10) The offense involved fraudulent or deceptive practices committed against any department or division of State government;

(11) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;

(12) The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and

(13) The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle.

b. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances:

(1) The defendant's conduct neither caused nor threatened serious harm;

(2) The defendant did not contemplate that his conduct would cause or threaten serious harm;

(3) The defendant acted under a strong provocation;

(4) There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;

(5) The victim of the defendant's conduct induced or facilitated its commission;

(6) The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;

(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;

(8) The defendant's conduct was the result of circumstances unlikely to recur;

(9) The character and attitude of the defendant indicate that he is unlikely to commit another offense;

(10) The defendant is particularly likely to respond affirmatively to probationary treatment;

(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents;

(12) The willingness of the defendant to cooperate with law enforcement authorities;

(13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.

c. (1) A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.

(2) When imposing a sentence of imprisonment the court shall consider the defendant's eligibility for release under the law governing parole, including time credits awarded pursuant to Title 30 of the Revised Statutes, in determining the appropriate term of imprisonment.

d. Presumption of imprisonment. The court shall deal with a person who has been convicted of a crime of the first or second degree, or a crime of the third degree when the court finds that the aggravating factor in paragraph (5) of subsection a. applies, by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. Notwithstanding the provisions of subsection e. of this section, the court shall deal with a person who has been convicted of theft of a motor vehicle or of the unlawful taking of a motor vehicle and who has previously been convicted of either offense by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.

e. The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public under the criteria set forth in subsection a., except that this subsection shall not apply if the court finds that the aggravating factor in paragraph (5) of subsection a. applies or if the person is convicted of any of the following crimes of the third degree: theft of a motor vehicle; unlawful taking of a motor vehicle; eluding; if the person is convicted of a crime of the third degree constituting use of a false government document in violation of subsection c. of section 1 of P.L.1983, c.565 (C.2C:21-2.1); if the person is convicted of a crime of the third degree constituting distribution, manufacture or possession of an item containing personal identifying information in violation of subsection b. of section 6 of P.L.2003, c.184 (C.2C:21-17.3); if the person is convicted of a crime of the third or fourth degree constituting bias intimidation in violation of N.J.S.2C:16-1; or if the person is convicted of a crime of the third degree under section 2 of P.L.1997, c.111 (C.2C:12-1.1); or if the person is convicted of a disorderly persons offense constituting contempt under subsection c. of N.J.S.2C:29-9; or it the person is convicted of a crime of the third or fourth degree under the provisions of section 1 or 2 of P.L.2007, c.341 (C.2C:33-29 or 2C:33-30).

f. Presumptive Sentences. (1) Except for the crime of murder, unless the preponderance of aggravating or mitigating factors, as set forth in subsections a. and b., weighs in favor of a higher or lower term within the limits provided in N.J.S.2C:43-6, when a court determines that a sentence of imprisonment is warranted, it shall impose sentence as follows:

(a) To a term of 20 years for aggravated manslaughter or kidnapping pursuant to paragraph (1) of subsection c. of N.J.S.2C:13-1 when the offense constitutes a crime of the first degree;

(b) Except as provided in paragraph (a) of this subsection to a term of 15 years for a crime of the first degree;

(d) To a term of four years for a crime of the third degree; and

(e) To a term of nine months for a crime of the fourth degree.

In imposing a minimum term pursuant to 2C:43-6b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

Unless the preponderance of mitigating factors set forth in subsection b. weighs in favor of a lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(1) shall have a presumptive term of life imprisonment. Unless the preponderance of aggravating and mitigating factors set forth in subsections a. and b. weighs in favor of a higher or lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(2) shall have a presumptive term of 50 years' imprisonment; sentences imposed pursuant to 2C:43-7a.(3) shall have a presumptive term of 15 years' imprisonment; and sentences imposed pursuant to 2C:43-7a.(4) shall have a presumptive term of seven years' imprisonment.

In imposing a minimum term pursuant to 2C:43-7b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

(2) In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. If the court does impose sentence pursuant to this paragraph, or if the court imposes a noncustodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.

g. Imposition of Noncustodial Sentences in Certain Cases. If the court, in considering the aggravating factors set forth in subsection a., finds the aggravating factor in paragraph a.(2), a. (5), a.(10) or a.(12) and does not impose a custodial sentence, the court shall specifically place on the record the mitigating factors which justify the imposition of a noncustodial sentence.

h. Except as provided in section 2 of P.L.1993, c.123 (C.2C:43-11), the presumption of imprisonment as provided in subsection d. of this section shall not preclude the admission of a person to the Intensive Supervision Program, established pursuant to the Rules Governing the Courts of the State of New Jersey.

(cf: P.L.2010, c.30, s.1)

5. This act shall take effect immediately.

STATEMENT

This bill would authorize a court to enjoin a criminal street gang from engaging in any activity in furtherance of the gang in a defined geographic area for a period not to exceed one year.

An action pursuant to the provisions of the bill would be brought in the Superior Court of the county in which the geographic area covered by the injunction is located and would be instituted by the filing of a petition by the Attorney General or county prosecutor that includes, at a minimum, the following information:

� a description of the geographic area covered by the injunction;

� the name of the criminal street gang and the activities of the criminal street gang in the specified geographic area;

� a detailed enumeration of the activities to be prohibited by the injunction sought; and

� any other information required by the court.

After the filing of the petition, application for an injunction would be made to the court. A copy of the petition and a notice of the time and place of the hearing on the injunction would be served upon at least three members of the criminal street gang that are frequently present in the designated geographic area no later than five days before the hearing.

Under the provisions of the bill, the Attorney General or the prosecutor seeking the injunction would have the burden of proving by clear and convincing evidence that the facts contained in the petition are true, that the activities sought to be enjoined are in furtherance of a criminal street gang active in the defined geographic area, and that the terms of the injunction are narrowly tailored to address the acts of the criminal street gang.

As used in the bill, the term "criminal street gang" means three or more persons associated in fact. Individuals are associated in fact if: (1) two of the following seven criteria that indicate criminal street gang membership apply: (a) self-proclamation; (b) witness testimony or official statement; (c) written or electronic correspondence; (d) paraphernalia or photographs; (e) tattoos; (f) clothing or colors; (g) any other indicia of street gang activity; and (2) individually or in combination with other members of a criminal street gang, while engaging in gang related activity, have committed or conspired or attempted to commit, within the preceding five years from the date of present offense, excluding any period of imprisonment, one or more offenses on separate occasions of robbery, carjacking, aggravated assault, assault, aggravated sexual assault, sexual assault, arson, burglary, kidnapping, extortion, tampering with witnesses and informants or a violation of chapter 11, sections 3, 4, 5, 6, or 7 of chapter 35 or chapter 39 of Title 2C of the New Jersey Statutes This definition is taken from existing law, subsection a. of P.L.2007, c.341 (C.2C:33-29).

A person who has been properly served with a copy of the injunction and who violates a term of the injunction would be guilty of a disorderly persons offense; however, the presumption against incarceration that applies to a first-time offender would not apply to a person found guilty of violating an injunction issued pursuant to the bill. A disorderly persons offense is punishable by up to six months imprisonment, a fine of $1000, or both. The bill also authorizes the court to order an offender to complete a job training or education program in lieu of imprisonment.

It is the intent of the sponsor to give broad authority to the courts to fashion injunctions to protect specific neighborhoods from activities that, although not necessarily illegal, are committed by gang members in furtherance of the gang. Such activities may include, but are not limited to: possessing and discharging firearms, associating with other gang members in public, loitering, wearing attire and exhibiting hand signals associated with the gang, possessing spray-paint, and blocking driveways and sidewalks. Gang injunctions are currently used in California and Texas.