Monday, April 12, 2021

33 :1-81.1a Violations by parent, guardian; notification; fine.

 33 :1-81.1a  Violations by parent, guardian; notification; fine.

 

   3.   A parent, guardian or other person having legal custody of a person under 18 years of age found in violation of R.S.33:1-81 or section 1 of P.L.1979, c.264 (C.2C:33-15) with respect to purchasing, possessing, or consuming any alcoholic beverage or cannabis item available for lawful consumption pursuant to the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L.2021, c.21 (C.24:6I-31 et al.) shall be notified of the violation in writing.  The parent, guardian or other person having legal custody of a person under 18 years of age shall be subject to a fine in the amount of $500.00 upon any subsequent violation of R.S.33:1-81 or section 1 of P.L.1979, c.264 (C.2C:33-15) on the part of such person if it is shown that the parent, guardian or other person having legal custody failed or neglected to exercise reasonable supervision or control over the conduct of the person under 18 years of age.  

   L.1991, c.169, s.3; amended 2021, c.16, s.71.

New 40A :14-118.5 Body worn cameras, recordings, regulations concerning usage; terms defined.

New  40A :14-118.5  Body worn cameras, recordings, regulations concerning usage; terms defined.

   1. a. For the purposes of this section: 

   "Body worn camera" means a mobile audio and video recording system worn by a law enforcement officer, but shall not include a recording device worn by a law enforcement officer while engaging in an undercover assignment or a recording device used during a custodial interrogation conducted in a place of detention in compliance with Rule 3:17 of the Rules Governing the Courts of the State of New Jersey. 

   "Constructive authority" means the use of the law enforcement officer's authority to exert control over a person, directed against a person who is subject to an investigative detention or arrest or against any person if the officer has un-holstered a firearm or a conducted energy device.

   "Force" shall include physical, mechanical, enhanced mechanical, and deadly force. 

   "Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest, and conviction of offenders against the laws of this State. 

   "Mobile video recording system" shall have the same meaning as set forth in section 1 of P.L.2014, c.54 (C.40A:14-118.1). 

   "School" means a public or nonpublic elementary or secondary school within this State offering education in grades kindergarten

through 12, or any combination of grades, at which a child may legally fulfill compulsory school attendance requirements.

   "Subject of the video footage" means any law enforcement officer, suspect, victim, detainee, conversant, injured party, or other similarly situated person who appears on the body worn camera recording, and shall not include a person who only incidentally appears on the recording.

   "Youth facility" means a facility within this State used to house or provide services to children under P.L.1951, c.138 (C.30:4C-1 et seq.), including but not limited to group homes, residential facilities, day care centers, and day treatment centers.

   b.   A body worn camera used by a law enforcement officer shall be placed so that it maximizes the camera's ability to capture video footage of the officer's activities.

   c. (1) Except as otherwise provided in this subsection or in subsection e. of this section, the video and audio recording functions of a body worn camera shall be activated whenever the officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between an officer and a member of the public, in accordance with applicable guidelines or directives promulgated by the Attorney General; provided however, if an immediate threat to the officer's life or safety makes activating the body worn camera impossible or dangerous, the officer shall activate the body worn camera at the first reasonable opportunity to do so.  The body worn camera shall remain activated until the encounter has fully concluded and the officer leaves the scene.

   (2)   The video and audio recording functions of a body worn camera may be deactivated, consistent with directives or guidelines promulgated by the Attorney General, under the following circumstances:

   (a)   when a civilian conversing with the officer requests that the device be deactivated where it reasonably appears that the person will not provide information or otherwise cooperate with the officer unless that request is respected;

   (b)   when a person, other than an arrestee, is seeking emergency medical services for themselves or another person and requests that the device be deactivated;

   (c)   while the officer is participating in a discussion pertaining to criminal investigation strategy and planning, provided that the discussion is not conducted in the immediate presence of a civilian and further provided that the officer is not actively engaged in the collection of physical evidence; or

   (d)   when specifically authorized to do so by an assistant prosecutor or an assistant or deputy attorney general for good and sufficient cause as determined by the assistant prosecutor or assistant or deputy attorney general.

   (3)   Unless the officer is actively engaged in investigating the commission of a criminal offense, or is responding to an emergency or call for service, or reasonably believes that he or she will be required to use constructive authority or force, the officer shall not activate the video and audio recording functions of a body worn camera, or shall deactivate a device that has been activated, while the officer:

   (a)   is in a school or youth facility or on school or youth facility property under circumstances where minor children would be in view of the device;

   (b)   is in a patient care area of a healthcare facility, medical office, or substance abuse treatment facility under circumstances where patients would be in view of the device; or

   (c)   is in a place of worship under circumstances where worshippers would be in view of the device.

   (4)   The officer shall not activate the video and audio recording functions of a body worn camera, or shall deactivate a device that has been activated, if the officer knows or reasonably believes that the recording would risk revealing the identity of an individual as an undercover officer or confidential informant or otherwise would pose a risk to the safety of an undercover officer or confidential informant, unless such activation is expressly authorized by a supervisor, or unless the exigency of the situation and danger posed to an officer require that the encounter or incident be recorded, in which event the officer shall inform his or her supervisor that the recording risks revealing the identity of an individual as an undercover officer or confidential informant.

   (5)   An officer shall not activate a body worn camera while in a courtroom during court proceedings, unless the officer is responding to a call for service or is authorized to use constructive force or authority.

   (6)   If the body worn camera model selected by a law enforcement agency produces radio-frequency interference while activated or while in standby mode, the device shall be deactivated while in the area where an electronic alcohol breath testing device is being used, or, as necessary, shall be removed from the area where such device is being used.  Nothing herein shall be construed to preclude the use of a body worn camera to record the behavior of a person arrested for driving while intoxicated other than while the person is in the breath-testing area while the electronic breath testing device is being operated.  If this provision requires deactivation of a body worn camera, the officer shall narrate the reasons for deactivation, and the device shall be re-activated when safe and practicable to do so following the completion of the breath testing operation.

   d.   A law enforcement officer who is wearing a body worn camera shall notify the subject of the recording that the subject is being recorded by the body worn camera unless it is unsafe or infeasible to provide such notification.  Such notification shall be made as close to the inception of the encounter as is reasonably possible.  If the officer does not provide the required notification because it is unsafe or infeasible to do so, the officer shall document the reasons for that decision in a report or by narrating the reasons on the body worn camera recording, or both.  The failure to verbally notify a person pursuant to this section shall not affect the admissibility of any statement or evidence.

   e.   Notwithstanding the requirements of subsection c. of this section:

   (1)   prior to entering a private residence, a law enforcement officer shall notify the occupant that the occupant is being recorded by the body worn camera and, if the occupant requests the officer to discontinue use of the officer's body worn camera, the officer shall immediately discontinue use of the body worn camera unless the officer is actively engaged in investigating the commission of a criminal offense, or is responding to an emergency, or reasonably believes that the officer will be required to use constructive authority or force;

   (2)   when interacting with an apparent crime victim, a law enforcement officer shall, as soon as practicable, notify the apparent crime victim  that he or she is being recorded by the body worn camera and, if the apparent crime victim requests the officer to discontinue use of the body worn camera, the officer shall immediately discontinue use of the body worn camera; and

   (3)   when interacting with a person seeking to anonymously report a crime or assist in an ongoing law enforcement investigation, a law enforcement officer, if the person requests that the officer discontinue use of the body worn camera, shall, evaluate the circumstances and, if appropriate, discontinue use of the body worn camera.

   f.   A request to discontinue the use of a body worn camera made to a law enforcement officer pursuant to subsection e. of this section and the response to the request shall be recorded by the recording system prior to discontinuing use of the recording system.

   g.   A body worn camera shall not be used surreptitiously.

   h.   A body worn camera shall not be used to gather intelligence information based on First Amendment protected speech, associations, or religion, or to record activity that is unrelated to a response to a call for service or a law enforcement or investigative encounter between a law enforcement officer and a member of the public, provided that nothing in this subsection shall be construed to prohibit activation of video and audio recording functions of a body worn camera as authorized under this law and in accordance with any applicable guidelines or directives promulgated by the Attorney General.

   i.   Every law enforcement agency shall promulgate and adhere to a policy, standing operating procedure, directive, or order which meets the requirements of subsection j. of this act and any applicable guideline or directive promulgated by the Attorney General that specifies the period of time during which a body worn camera recording shall be retained. 

   j.   A body worn camera recording shall be retained by the law enforcement agency that employs the officer for a retention period consistent with the provisions of this section, after which time the recording shall be permanently deleted.  A body worn camera recording shall be retained for not less than 180 days from the date it was recorded, which minimum time frame for retention shall be applicable to all contracts for retention of body worn camera recordings executed by or on behalf of a law enforcement agency on or after the effective date of this act, and shall be subject to the following additional retention periods: 

   (1)   a body worn camera recording shall automatically be retained for not less than three years if it captures images involving an encounter about which a complaint has been registered by a subject of the body worn camera recording; 

   (2)   subject to any applicable retention periods established in paragraph (3) of this subsection to the extent such retention period is longer, a body worn camera recording shall be retained for not less than three years if voluntarily requested by:

   (a)   the law enforcement officer whose body worn camera made the video recording, if that officer reasonably asserts the recording has evidentiary or exculpatory value;

   (b)   a law enforcement officer who is a subject of the body worn camera recording, if that officer reasonably asserts the recording has evidentiary or exculpatory value;

   (c)   any immediate supervisor of a law enforcement officer whose body worn camera made the recording or who is a subject of the body worn camera recording, if that immediate supervisor reasonably asserts the recording has evidentiary or exculpatory value;

   (d)   any law enforcement officer, if the body worn camera recording is being retained solely and exclusively for police training purposes;

   (e)   any member of the public who is a subject of the body worn camera recording;

   (f)   any parent or legal guardian of a minor who is a subject of the body worn camera recording; or

   (g)   a deceased subject's next of kin or legally authorized designee.

   (3)   Notwithstanding the provisions of paragraph (1) or (2) of this subsection, a body worn camera recording shall be subject to the following additional retention requirements:

   (a)   when a body worn camera recording pertains to a criminal investigation or otherwise records information that may be subject to discovery in a prosecution, the recording shall be treated as evidence and shall be kept in accordance with the retention period for evidence in a criminal prosecution;

   (b)   when a body worn camera records an arrest that did not result in an ongoing prosecution, or records the use of police force, the recording shall be kept until the expiration of the statute of limitations for filing a civil complaint against the officer or the employing law enforcement agency;

   (c)   when a body worn camera records an incident that is the subject of an internal affairs complaint, the recording shall be kept pending final resolution of the internal affairs investigation and any resulting administrative action.

   k.   To effectuate subparagraphs (e), (f), and (g) of paragraph (2) of subsection j. of this section, the member of the public, parent or legal guardian, or next of kin or designee shall be permitted to review the body worn camera recording in accordance with the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) to determine whether to request a three-year retention period.

   l.   Notwithstanding that a criminal investigatory record does not constitute a government record under section 1 of P.L.1995, c.23 (C.47:1A-1.1), only the following body worn camera recordings shall be exempt from public inspection:

   (1)   body worn camera recordings not subject to a minimum three-year retention period or additional retention requirements pursuant to subsection j. of this section;

   (2)   body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to paragraph (1) of subsection j. of this section if the subject of the body worn camera recording making the complaint requests the body worn camera recording not be made available to the public;

   (3)   body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (a), (b), (c), or (d) of paragraph (2) of subsection j. of this section; and

   (4)   body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (e), (f), or (g) of paragraph (2) of subsection j. of this section if a member, parent or legal guardian, or next of kin or designee requests the body worn camera recording not be made available to the public.

   m.   Any body worn camera recording retained beyond 180 days solely and exclusively pursuant to subparagraph (d) of paragraph (2) of subsection j. of this section shall not be admissible as evidence in any criminal or civil legal or administrative proceeding.

   n.   A law enforcement officer shall not review or receive an accounting of a body worn camera recording that is subject to a minimum three-year retention period pursuant to paragraph (1) or paragraph (3) of subsubsection j. of this section prior to creating any required initial reports, statements, and interviews regarding the recorded event; provided that nothing in this paragraph is intended to prevent the officer from considering, reviewing or receiving an accounting of such a body worn camera recording subsequent to the creation of any required initial reports, statements, and interviews regarding the recorded event.

   o.   Body worn camera recordings shall not be divulged or used by any law enforcement agency for any commercial or other non-law enforcement purpose.

   p.   If a law enforcement agency authorizes a third-party to act as its agent in maintaining recordings from a body worn camera, the agent shall be prohibited from independently accessing, viewing, or altering any recordings, except to delete recordings as required by law or agency retention policies.

   q.   If a law enforcement officer, employee, or agent fails to adhere to the recording or retention requirements contained in this act, or intentionally interferes with a body worn camera's ability to accurately capture audio or video recordings: 

   (1)    the officer, employee, or agent shall be subject to appropriate disciplinary action;

   (2)   there shall be a rebuttable presumption that exculpatory evidence was destroyed or not captured in favor of a criminal defendant who reasonably asserts that exculpatory evidence was destroyed or not captured; and

   (3)   there shall be a rebuttable presumption that evidence supporting the plaintiff's claim was destroyed or not captured in favor of a civil plaintiff suing the government, a law enforcement agency, or a law enforcement officer for damages based on police misconduct if the plaintiff reasonably asserts that evidence supporting the plaintiff's claim was destroyed or not captured.

   r.   Any recordings from a body worn camera recorded in contravention of this or any other applicable law shall be immediately destroyed and shall not be admissible as evidence in any criminal, civil, or administrative proceeding.

   s.   Nothing in this act shall be deemed to contravene any laws governing the maintenance and destruction of evidence in a criminal investigation or prosecution.

   L.2020, c.129, s.1.

 

Revised 2C :33-15 Possession, consumption by persons under legal age; penalty.

Revised  2C :33-15 Possession, consumption by persons under legal age; penalty.

   1. a. (1) Any person under the legal age to purchase alcoholic beverages, or under the legal age to purchase cannabis items, who knowingly possesses without legal authority or who knowingly consumes any alcoholic beverage, cannabis item, marijuana, or hashish in any school, public conveyance, public place, or place of public assembly, or motor vehicle shall be subject to the following consequences:

   (a)   for a first violation, a written warning issued by a law enforcement officer to the underage person. The written warning shall include the person's name, address, and date of birth, and a copy of the warning containing this information, plus a sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed the violation, shall be temporarily maintained in accordance with this section only for the purposes of determining a second or subsequent violation subject to the consequences set forth in subparagraph (b) or (c) of this paragraph.  If the violation of this section is by a person under 18 years of age, a written notification concerning the violation shall be provided to the parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a).

   (b)   for a second violation, a written warning issued by a law enforcement officer to the underage person indicating that a second violation has occurred, which includes the person's name, address, and date of birth. If the violation is by a person 18 years of age or older, the officer shall provide the person with informational materials about how to access community services provided by public or private agencies and organizations that shall assist the person with opportunities to access further social services, including but not limited to counseling, tutoring programs, mentoring services, and faith-based or other community initiatives. If the violation is by a person under 18 years of age, a written notification concerning the second violation shall be provided to the parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a). The written notification shall include the same or similar informational materials about how to access community services provided by public or private agencies and organizations as those provided directly by a law enforcement officer to a person 18 years of age or older who commits a second violation of this paragraph. A copy of the second written warning to the underage person, and, if applicable, the written notification to the parent, guardian or other person having legal custody of the underage person concerning the second warning, plus a sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed the second violation, shall be temporarily maintained in accordance with this section only for the purposes of determining a subsequent violation subject to the consequences set forth in subparagraph (c) of this paragraph.

   (c)   for a third or subsequent violation, a write-up issued by a law enforcement officer to the underage person indicating that a third or subsequent violation has occurred, which includes the person's name, address, and date of birth. If the violation is by a person 18 years of age or older, the officer shall include with the write-up a referral for accessing community services provided by a public or private agency or organization, and provide notice to that agency or organization of the referral which may also be used to initiate contact with the person, and the agency or organization shall offer assistance to the person with opportunities to access further social services, including but not limited to counseling, tutoring programs, mentoring services, and faith-based or other community initiatives. If the violation is by a person under 18 years of age, a written notification concerning the third or subsequent violation shall be provided to the parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a). The written notification shall include a referral for the person and the parent, guardian or other person having legal custody of the underage person for accessing community services provided by a public or private agency or organization, and provide notice to that agency or organization of the referral which may also then be used to initiate contact with both persons, and the agency or organization shall offer assistance to both with opportunities to access further social services, including counseling, tutoring programs, mentoring services, and faith-based or other community initiatives. A copy of a write-up for a third or subsequent violation, the written notification to the parent, guardian or other person having legal custody of the underage person, if applicable, and accompanying referrals, plus a sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed the third or subsequent violation, shall be temporarily maintained in accordance with this section only to the extent necessary to track referrals to agencies and organizations, as well as for the purposes of determining a subsequent violation subject to the consequences set forth in this subparagraph. 

   The failure of a person under the legal age to purchase alcoholic beverages or cannabis items, or the failure of a parent, guardian or other person having legal custody of the underage person, to accept assistance from an agency or organization to which a law enforcement referral was made, or to access any community services provided by that agency or organization shall not result in any summons, initiation of a complaint, or other legal action to be adjudicated and enforced in any court.

   (2) (a) A person under the legal age to purchase alcoholic beverages or cannabis items is not capable of giving lawful consent to a search to determine a violation of this section, and a law enforcement officer shall not request that a person consent to a search for that purpose.

   (b)   The odor of an alcoholic beverage, marijuana, hashish, cannabis, or cannabis item, or burnt marijuana, hashish, cannabis, or cannabis item, shall not constitute reasonable articulable suspicion to initiate an investigatory stop of a person, nor shall it constitute probable cause to initiate a search of a person or that person's personal property to determine a violation of paragraph (1) of this subsection. Additionally, the unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of paragraph (1) of this subsection, observed in plain sight by a law enforcement officer, shall not constitute probable cause to initiate a search of a person or that person's personal property to determine any further violation of that paragraph or any other violation of law. 

   (3)   A person under the legal age to purchase alcoholic beverages or cannabis items who violates paragraph (1) of this subsection for possessing or consuming an alcoholic beverage, marijuana, hashish, or a cannabis item shall not be subject to arrest, shall not be transported to a police station, police headquarters, or other place of law enforcement operations, and shall not otherwise be subject to detention or be taken into custody by a law enforcement officer at or near the location where the violation occurred, except to the extent that detention or custody at or near the location is required to issue a written warning or write-up, collect the information necessary to provide notice of a violation to a parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81a), or make referrals for accessing community services provided by a public or private agency or organization due to a third or subsequent violation, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required.

   (4)   Consistent with the provisions of subsection c. of section 1 of P.L.2020, c.129 (C.40A:14-118.5), the video and audio recording functions of a law enforcement officer's body worn camera, as defined in that section, shall be activated whenever the law enforcement officer is responding to a call for service related to a violation or suspected violation of paragraph (1) of this subsection for possessing or consuming an alcoholic beverage, marijuana, hashish, or a cannabis item, or at the initiation of any other law enforcement or investigative encounter between an officer and a person related to a violation or suspected violation of that paragraph, and shall remain activated until the encounter has fully concluded and the officer leaves the scene of the encounter; provided, however, that the video and audio recording functions of a body worn camera shall not be deactivated pursuant to subparagraph (a) of paragraph (2) of subsection c. of P.L.2020, c.129 (C.40A:14-118.5), based on a request to deactivate the camera by a person who is the subject of a responsive call for service or law enforcement or investigative encounter related to a violation or suspected violation of paragraph (1) of this subsection.

   (5)   As part of the process for the issuance of a written warning or write-up to a person for a violation of paragraph (1) of this subsection, the law enforcement officer shall take possession of any alcoholic beverage, marijuana, hashish, or cannabis item from the person, and any drug or cannabis paraphernalia for use with any marijuana, hashish, or cannabis item. The existence and description of the alcoholic beverage, marijuana, hashish, or cannabis item, and any drug or cannabis paraphernalia shall be included in the sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed a violation, and which record is temporarily maintained in accordance with this section to determine subsequent possession or consumption violations, and track referrals for accessing community services provided by a public or private agency or organization due to a third or subsequent violation. Any alcoholic beverage, marijuana, hashish, cannabis item, or drug or cannabis paraphernalia obtained by the law enforcement officer shall either be destroyed or secured for use in law enforcement training or educational programs in accordance with applicable law and directives issued by the Attorney General.

   (6)   With respect to any violation of paragraph (1) of this subsection concerning the possession or consumption of an alcoholic beverage, marijuana, hashish, or any cannabis item:

   (a)   a person under the legal age to purchase alcoholic beverages or cannabis items shall not be photographed or fingerprinted, notwithstanding any provisions of section 2 of P.L.1982, c.79 (C.2A:4A-61) to the contrary;

   (b) (i) any copy of any written warning or write-up issued to a person under the legal age to purchase alcoholic beverages or cannabis items, written notification provided to the person's parent, guardian or other person having legal custody in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a), sworn statement describing the relevant facts and circumstances that support an officer's determination that a person committed a violation, or referrals for accessing community services provided by a public or private agency or organization pertaining to a third or subsequent violation shall be segregated and maintained in a separate physical location or electronic repository or database from any other records maintained by a law enforcement agency, and reported to the Attorney General in a manner so that they are similarly segregated and maintained in a separate physical location or electronic repository or database from other law enforcement records accessible to the Attorney General and State and local law enforcement agencies, and shall not be transferred to or copied and placed in any other physical location or electronic repository or database containing any other law enforcement records. These records shall only be used to the extent necessary to determine a subsequent violation of paragraph (1) of this subsection or to track referrals to agencies and organizations, and shall not be revealed, reviewed, or considered in any manner with respect to any current or subsequent juvenile delinquency matter, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting the juvenile, or with respect to any current or subsequent prosecution for committing an offense or other violation of law, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting an adult under 21 years of age. Also, these records shall be deemed confidential and shall not be subject to public inspection or copying pursuant to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), and their existence shall not be acknowledged based upon any inquiry in the same manner as if the records were expunged records pursuant to the provisions of subsection a. of N.J.S.2C:52-15.

   The Attorney General may use the records described herein to generate the number of occurrences and other statistics concerning first, second, third and subsequent violations of paragraph (1) of this subsection, the municipal, county or other geographic areas within which first, second, third and subsequent violations occur, and the law enforcement agencies involved in first, second, third and subsequent violations, which are to be compiled and made available by the Attorney General in accordance with section 4 of P.L.2021, c.25 (C.2C:33-15.1). The identity of any person named in a record shall not be revealed or included in the information to be compiled and made available in accordance with that section.

   The records of violations shall only be maintained temporarily and shall be destroyed or permanently deleted as set forth in subparagraph (c) of this paragraph.

   (ii)   any records pertaining to a person's acceptance of assistance from an agency or organization to which a law enforcement referral was made shall not be revealed, reviewed, or considered in any manner with respect to any current or subsequent juvenile delinquency matter, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting the juvenile, or with respect to any current or subsequent prosecution for committing an offense or other violation of law, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting an adult under 21 years of age. Also, these records shall be deemed confidential and shall not be subject to public inspection or copying pursuant to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), and their existence shall not be acknowledged based upon any inquiry in the same manner as if the records were expunged records pursuant to the provisions of subsection a. of N.J.S.2C:52-15.

   (c)   All of the records maintained by a law enforcement agency and reported to the Attorney General as described in subsubparagraph (i) of subparagraph (b) of this paragraph shall be destroyed or permanently deleted by the law enforcement agency and Attorney General on the second anniversary following the creation of the record concerning a violation, or not later than the last day of the month in which that second anniversary date falls, or alternatively not later than the 21st birthday of a person who is the subject of a record, or not later than the last day of the month in which that birthday falls, whichever date occurs sooner, except that a record shall be maintained upon request by the person named in the record or representative thereof, the law enforcement officer who made the record, or the law enforcement agency currently maintaining the record if it involves a lawsuit, disciplinary complaint, or criminal prosecution arising from the violation described in the record, based on an assertion that the record has evidentiary or exculpatory value. Upon final disposition of the matter for which the extended record retention was requested, the record shall be destroyed or permanently deleted.

   (d)   A law enforcement officer shall be guilty of the crime of official deprivation of civil rights as set forth in section 3 of P.L.2021, c.25 (C.2C:30-6.1) for violating the provisions of paragraph (1) of this subsection that address law enforcement actions involving persons who are under the legal age to purchase alcoholic beverages or cannabis items.   

   b.   (Deleted by amendment, P.L.2021, c.25)   

   c.   (Deleted by amendment, P.L.2021, c.25)

   d.   Nothing in this act shall apply to possession of alcoholic beverages by any such person while actually engaged in the performance of employment pursuant to an employment permit issued by the Director of the Division of Alcoholic Beverage Control, or for a bona fide hotel or restaurant, in accordance with the provisions of R.S.33:1-26, or while actively engaged in the preparation of food while enrolled in a culinary arts or hotel management program at a county vocational school or post-secondary educational institution; and nothing in this section shall apply to possession of cannabis items by any such person while actually engaged in the performance of employment by a cannabis establishment, distributor, or delivery service as permitted pursuant to the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L.2021, c.16 (C.24:6I-31 et al.).

   e.   Except as otherwise provided in this section, the provisions of section 3 of P.L.1991, c.169 (C.33:1-81.1a) shall apply to a parent, guardian or other person with legal custody of a person under 18 years of age who is found to be in violation of this section. 

   f.   An underage person and one or two other persons shall be immune from prosecution under this section if:

   (1)   one of the underage persons called 9-1-1 and reported that another underage person was in need of medical assistance due to alcohol consumption, or the consumption of marijuana, hashish, or a cannabis item; 

   (2)   the underage person who called 9-1-1 and, if applicable, one or two other persons acting in concert with the underage person who called 9-1-1 provided each of their names to the 9-1-1 operator; 

   (3)   the underage person was the first person to make the 9-1-1 report; and

   (4)   the underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 9-1-1 call remained on the scene with the person under the legal age in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

   The underage person who received medical assistance also shall be immune from prosecution under this section.

   g.   For purposes of this section, an alcoholic beverage includes powdered alcohol as defined by R.S.33:1-1, a cannabis item includes any item available for lawful consumption pursuant to the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L.2021, c.16 (C.24:6I-31 et al.), and the terms "marijuana" and "hashish" have the same meaning as set forth in N.J.S.2C:35-2, and the terms "drug paraphernalia" and "cannabis paraphernalia" have the same meaning as set forth in N.J.S.2C:36-1 and section 3 of P.L.2021, c.16 (C.24:6I-33), respectively.

   L.1979, c.264, s.1; amended 1991, c.169, s.2; 1997, c.161; 2009, c.133, s.1; 2015, c.137, s.3; 2021, c.16, s.73; 2021, c.25, s.2; 2021, c.38.

Directive 08-21 Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2

 Directive 08-21 Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2 

 

https://njcourts.gov/attorneys/assets/directives/dir_08_21.pdf

Criminal/Family/Municipal - Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2 

April 7, 2021 

This Directive promulgates the process for sealing records from public access on order of the court at the time of sentencing for a criminal conviction or juvenile adjudication of certain marijuana or hashish offenses in accordance with the statutory amendments to N.J.S.A. 2C:52-5.2, and the marijuana decriminalization laws enacted by L. 2021, c. 19. Additionally, Attorney General Law Enforcement Directive #2021-1, “Directive Governing Dismissals of Certain Pending Marijuana Charges” (issued February 22, 2021), instructs prosecutors to seek dismissal of certain pending marijuana-related charges against either a juvenile or an adult where the conduct occurred on or before February 22, 2021. 

       The court at the time of sentencing shall order the records of the courts, probation services, and law enforcement agencies to be sealed from the public for a criminal conviction or juvenile adjudication that solely includes the following offense(s): 

• N.J.S.A. 2C:35-5(b)(12)(b)– distribution of marijuana in a quantity of one ounce or less or hashish in a quantity of five grams or less; or 

The marijuana decriminalization law, L. 2021, c. 19, reconfigured N.J.S.A. 2C:35-5(b)(12) and N.J.S.A. 2C:35-10(a)(3) by adding subsection (b) to both statutes, effective February 22, 2021. Pursuant to Attorney General Directive #2021-1, referenced above, prosecutors will be dismissing the pending charges for N.J.S.A. 2C:35-5(b)(12) and N.J.S.A. 2C:35-10(a)(3) that occurred on or before February 22, 2021. 

page1image3777219744page1image3777220032N.J.S.A. 2C:35-5(b)(12)(b) and a violation of N.J.S.A. 2C:35-7 on or within 1000 feet of school property and/or a violation of N.J.S.A. 2C:35- 7.1 on or within 500 feet of a public housing facility, public park, or public building; or 

  • N.J.S.A. 2C:35-10(a)(3)(b) – possession of marijuana in a quantity of more than six ounces or hashish in a quantity of more than 17 grams. 

This Directive also promulgates three revised forms and two new forms for use effective immediately, as follows: (1) a revised Judgment of Conviction form for use in the Criminal Division (CN 10070); (2) a revised Presentence Investigation Report (CN 10693); (3) a revised Juvenile Disposition Order form (CN 10812); (4) a new sealing court order form (CN 12763) for use in Municipal Court; and (5) a new Order for Judgment form (CN 12757) for entry of a civil judgment for any outstanding court-ordered financial assessments. See Attachments 1-5 for the above referenced forms. 

Additionally, the Supreme Court has amended Rule 1:38-3 (“Court Records Excluded from Public Access”) and Rule 1:38-11 (“Sealing of Court Records”) by order dated February 5, 2021 to conform to the statutory requirements to seal these records from public access upon criminal conviction or juvenile adjudication. 

System enhancements have been made in the Judiciary’s computerized systems to indicate the cases that have been ordered sealed from public access pursuant to N.J.S.A. 2C:52-5.2. Information concerning these modifications has been previously sent to Judiciary staff under separate cover. Modifications have also been made to remove information concerning sealed cases in the Public Safety Assessment (PSA) risk factors in accordance with N.J.S.A. 2C:52-5.2(d), which provides that these records shall not be considered whenever the Pretrial Services Program conducts a risk assessment on an eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision under N.J.S.A. 2A:162-15 et seq. Additionally, cases that have been ordered sealed pursuant to this statute will not be listed in the “Court History” section of the Presentence Investigation Report in accordance with N.J.S.A. 2C:52-5.2(d), which prohibits use of this information for sentencing purposes in any other case. 

If the conviction or adjudication includes a court-ordered financial assessment subject to collection under the comprehensive enforcement program (CEP), the court at the time of sentencing will also enter a civil judgment for the outstanding amount in the name of the Treasurer, State of New Jersey and transfer collections and disbursement responsibility to the State Treasurer pursuant to N.J.S.A. 2C:52- 5.2(a)(2). Accordingly, in those matters the appended Order for Judgment form (Attachment 5) should be completed by court staff, signed by the judge, and electronically forwarded to the Superior Court Clerk’s Office to record the civil judgment, where applicable. 

       Operationally, the municipal courts have not been part of the comprehensive enforcement program (CEP). Currently, there is no provision in the system to move cases through the CEP and civil judgment process for municipal court matters. Therefore, the municipal courts will continue their current collection process for cases that are ordered sealed. 

      Process for Sealing these Records in Criminal, Family, and Municipal Courts 

       For criminal convictions, the  Judgment of Conviction (JOC) form (CN 10070) has been updated to add checkboxes to indicate that the sentencing court has ordered: (1) the case to be sealed (page 1) and entry of a civil judgment for the outstanding court-ordered financial assessment (page 2). See Attachment 1. The appended revised JOC form supersedes the JOC form promulgated by the Supplement to Directive # 04-12 (issued July 22, 2016). Court staff will also prepare the Order of Judgment form (CN 12757) for any outstanding financial assessments as noted above and send the signed Order electronically to the Superior Court Clerk’s Office. Additionally, the Presentence Investigation (PSI) Report (CN 10693) has been updated on the first page to display a notation that this case may be eligible for sealing pursuant to N.J.S.A. 2C:52-5.2 if the charge(s) is one of the enumerated offenses. Thus, this Directive modifies and supplements the first page of the PSI form promulgated by the Supplement to Directive #03-13 (issued September 14. 2017). See Attachment 2. 

       For juvenile adjudications, the attached Juvenile Disposition Order (CN 10812) has been revised to include checkboxes and text for the sealing and outstanding court-ordered financial assessment provision. See Attachment 3. 

       For convictions in Municipal Courts, upon the judge ordering a case sealed, the court administrator will complete the attached Municipal Court sealing order (CN 12763) and distribute notification to the parties indicated on the sealing order in accordance with those identified in the following paragraph. 

       The court administrator will enter a sealing code in the automated complaint system to mark the case sealed which will suppress the record from public access. Information concerning the system code has been sent to the courts under separate cover. 

       The statute also requires notice that the matter has been sealed to be sent to: (1) the Attorney General, county prosecutor, or municipal prosecutor handling the case; and (2) the State Police and any local law enforcement agency having custody of the files and records. For criminal convictions and juvenile adjudications, to satisfy this requirement, the prosecuting attorney will have access to the Judgment of Conviction and Juvenile Disposition Order in the eCourts case jacket. 

       Until such time as similar functionality is available in municipal eCourts, Municipal Court staff will provide the court order to the Municipal Court prosecutor. Court staff will forward this information electronically to the State Police and will also provide it to the law enforcement agencies that were involved with the case. 

Link to forms

https://njcourts.gov/attorneys/assets/directives/dir_08_21.pdf

Form Promulgated by Directive #08-21 (4/7/2021), CN: 12757 

Tuesday, January 12, 2021

RECKLESS WITHOUT DRIVING WHILE INTOXICATED OR REFUSAL TO SUBMIT TO A BREATHALYZER TEST (N.J.S.A. 2C:11-5)

 

(RECKLESS WITHOUT DRIVING WHILE INTOXICATED OR REFUSAL TO SUBMIT TO A BREATHALYZER TEST)

(N.J.S.A. 2C:11-5)

 

            The defendant (Name) is charged in count __________ with the crime of reckless vehicular homicide. The indictment alleges:

(READ APPROPRIATE COUNT OF INDICTMENT)

            The statute upon which this charge is based provides:

Criminal homicide constitutes reckless vehicular homicide when it is caused by driving a vehicle (or vessel) recklessly.

            In order for you to find the defendant guilty of this crime, the State must prove the following elements beyond a reasonable doubt:

                        1.         That the defendant was driving a vehicle [or vessel];[1]

                        2.         That the defendant caused the death of (name victim); and

3.         That the defendant caused such death by driving the vehicle [or vessel] recklessly.

 

In order to find that the defendant caused (victim's) death, you must find that (victim) would not have died but for defendant's conduct.[2]

            [NOTE:  In cases where Causation - Removal of Life Support is an issue, the jury should be instructed as follows:

            You have heard testimony that on [date], (insert victim’s name) was taken off life support and that he/she died at some point after this was done. Should you find beyond a reasonable doubt that (insert victim’s name) died from medical complications that resulted from injuries caused by defendant’s actions, the removal of life support, in this case (method of removal), is not an intervening cause that relieves defendant of any criminal liability for those actions.[3] That is, if defendant’s actions set in motion (insert victim’s name) need for life support, without which death would result naturally, then the causal link between defendant’s action and the death of (insert victim’s name) was not broken by an unforeseen, extraordinary act when (insert victim’s name) was removed from life support and then expired, unless there was an intervening volitional act of another.][4]

[CHARGE IN ALL CASES]

            A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances known to him/her, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant's situation.

In other words, in order for you to find that the defendant drove a vehicle [or vessel] recklessly, the State must prove beyond a reasonable doubt that the defendant was aware he/she was operating a vehicle [or vessel] in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death to another. The State must also prove beyond a reasonable doubt that the defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted himself/herself in the situation.

            Recklessness is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. It is not necessary for the State to produce a witness to testify that the defendant stated that he/she acted with a particular state of mind. It is within your power to find that proof of recklessness has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.

[WHERE A VIOLATION OF THE MOTOR VEHICLE STATUTES

IS ALLEGED, ADD THE FOLLOWING:]

 

            The State alleges the defendant’s conduct involved [a] violation[s] of the motor vehicle laws of this State. Specifically, it is alleged that the defendant [list motor vehicle violations alleged and their elements].  It may be necessary for you to determine [Choose as appropriate: (whether defendant violated the statute regarding using a hand-held wireless communication device) / (whether defendant failed to maintain a lane)], as I will explain shortly.  However, with (that/those) possible exception(s), whether a defendant is guilty or not guilty of a motor vehicle offense will be determined by an appropriate court.[5] It is not your job to decide whether he/she is guilty or not guilty of any motor vehicle offense other than [Choose as appropriate: (using a hand-held wireless communication device) / (failing to maintain a lane)].  Rather, you may consider the evidence that he/she committed [a] motor vehicle offense[s] in deciding whether he/she was driving recklessly.

[CHARGE WHERE APPROPRIATE: LACK OF SLEEP]

In this case, the State alleges the defendant may have fallen asleep while driving [or that defendant was driving after having been without sleep for a period in excess of 24 consecutive hours]. Proof that defendant may have fallen asleep [or that defendant was driving after having been without sleep for a period in excess of 24 consecutive hours] may give rise to an inference that defendant was driving recklessly.[6]  However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject the inference as you deem appropriate.

[CHARGE WHERE APPROPRIATE:

HAND-HELD WIRELESS COMMUNICATION DEVICE]

            The State alleges that the defendant was using a hand-held wireless telephone while driving a motor vehicle in violation of New Jersey law.[7] The pertinent part of that law states that the use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway is unlawful except when the telephone is a hands-free wireless telephone or the electronic device is used hands-free, provided that the actual placement of the phone in the vehicle does not interfere with the operation of federally required safety equipment, and the operator exercises a high degree of caution in the operation of the motor vehicle.[8]

[CHOOSE AS APPROPRIATE]

            The operator of a motor vehicle may use a hand-held wireless telephone while driving with one hand on the steering wheel only if:       

·      The operator has reason to fear for his/her life or safety, or believes that a criminal act may be perpetrated against himself/herself or another person.[9]

·      The operator is using the telephone to report to appropriate authorities a fire, traffic accident, a serious road hazard or medical or hazardous materials emergency, or to report the operator of another motor vehicle who is driving in a reckless, careless or otherwise unsafe manner or who appear to be driving under the influence of alcohol or drugs.[10]

[RESUME CHARGE ON HAND HELD WIRELESS COMMUNICATION DEVICE]

 “Hands-free wireless telephone” means a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a conversation without the use of either hand; provided, however, this definition shall not preclude the use of either hand to activate, deactivate, or initiate a function of the telephone.[11]

“Use” of a wireless telephone or electronic communication device shall include, but shall not be limited to, talking or listening to another person on the telephone, text messaging, or sending an electronice message via the wireless telephone or electronic communication device.[12]

Proof that defendant used a hand-held wireless communication device in violation of this motor vehicle statute may give rise to an inference that defendant was driving recklessly.[13]  However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject the inference as you deem appropriate.

[CHARGE WHERE APPROPRIATE:

FAILURE TO MAINTAIN LANE][14]

 

            The State alleges that the defendant failed to maintain a lane while operating a motor vehicle, in violation of N.J.S.A. 39:4-88.  That section of the law states,

When a roadway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulation(s):

 

[CHOOSE AS APPROPRIATE]

 

a. A vehicle shall normally be driven in the lane nearest the right-hand edge or curb of the roadway when that lane is available for travel, except when overtaking another vehicle or in preparation for a left turn.

 

b. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.

 

c. Upon a highway which is divided into 3 lanes, a vehicle shall not be driven in the center lane except when overtaking or passing another vehicle or in preparation for a left turn or unless the center lane is at the time allocated for traffic moving in the direction the vehicle is proceeding and is signposted to give notice of that allocation.

 

d. The State Highway Commissioner may by regulation or local authorities may by resolution or ordinance with respect to highways under their jurisdiction designate right-hand lanes for slow moving traffic and inside lanes for traffic moving at the speed designated for the district as provided under this chapter, and when the lanes are signposted or marked to give notice of the designation a vehicle may be driven in any lane allocated to traffic moving in the direction in which it is proceeding, but when traveling within the inside lanes the vehicle shall be driven at approximately the speed authorized in such lanes and speed shall not be decreased unnecessarily so as to block, hinder or retard traffic.

 

e. When such roadway had been divided in such a manner that there are three or more lanes for traffic in any one direction, no truck of 10,000 pounds registered gross weight or over shall be driven in the farthest left-hand lane, except:

 

(1)  when and to the extent necessary to prepare for a left turn; a truck may be driven in the farthest left lane for up to one mile to prepare for a left hand turn as authorized under this paragraph;

 

(2)  when necessary to enter or leave such roadway by entrance or exit to or from the left lane ; a truck may be driven in the farthest left lane for up to one mile to prepare to enter or leave the roadway as authorized under this paragraph;

 

(3)  when reasonably necessary in response to emergency conditions; for the purposes of this paragraph, “emergency conditions” shall include, but not be limited to: poor visibility, snow, accidents, or the presence of emergency vehicles.

 

Proof that the defendant violated this section may give rise to an inference that defendant was driving recklessly.  However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject the inference as you deem appropriate.

[CHARGE IN ALL CASES]

            In conclusion, the three elements of the crime of reckless vehicular homicide are:

                        1.         That the defendant was driving a vehicle [or vessel];

                        2.         That the defendant caused the death of (name victim); and

                        3.         That the defendant caused such death by driving the vehicle [or vessel]

                                    recklessly.

            If the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty of vehicular homicide.

If you are satisfied that the State has proven each and every one of these elements beyond a reasonable doubt, then you must find the defendant guilty of vehicular homicide.[15]

[CHARGE IF JURY WAS INSTRUCTED ON THE N.J.S.A. 2C:11-5(b)(5) PERMISSIVE INFERENCE (FAILURE TO MAINTAIN LANE)):

If you have found the defendant guilty of Reckless Vehicular Homicide you must then answer an additional question on your Verdict Sheet, asking whether the defendant engaged in any additional conduct, other than failing to maintain a lane, that would constitute driving recklessly.[16]   The defendant has asserted that he/she engaged in no other reckless conduct in the operation of the vehicle and the State alleges otherwise. 

The defendant has the burden of proving the absence of any other reckless conduct by a preponderance of evidence.  The term "preponderance of the evidence" means the greater weight of credible evidence in the case. It does not necessarily mean the evidence of the greater number of witnesses but means that evidence which carries the greater convincing power to your minds.

If you find that the defendant has met his/her burden in establishing the absence of additional reckless conduct, other than failing to maintain a lane, answer “No” on your Verdict Sheet..  If, on the other hand, you find that the Defendant has not met his/her burden, then answer “Yes” on your verdict sheet.

Keep in mind, however, that although the burden rests upon the defendant to establish the absence of additional reckless conduct by a preponderance of the credible evidence, the burden of proving the defendant guilty of the offense charged beyond a reasonable doubt is always on the State, and that burden never shifts to the defendant.

 

 



DOG FIGHTING - (FIGHTING PARAPHRENALIA)

N.J.S.A. 2C:33-31a(7)



The indictment charges the defendant with dog fighting based on dog-fighting paraphernalia. The indictment reads as follows

(Read Indictment)



This conduct is prohibited by a statute providing:

A person is guilty of dog fighting if that person knowingly owns, possesses, buys, sells, transfers, or manufacturers dog fighting paraphernalia for the purpose of engaging in or otherwise promoting or facilitating the fighting or baiting of a dog.



To find the defendant guilty of dog fighting the State must prove beyond a reasonable doubt each of the following elements:

(1) That the defendant knowingly [Choose one or more, as appropriate: owned, possessed, bought, sold, transferred, or manufactured] dog-fighting paraphernalia.



AND



(2) That the defendant did so for the purpose of engaging in or otherwise promoting or facilitating the fighting or baiting of a dog.



The first element that the State must prove beyond a reasonable doubt is that defendant knowingly [Choose one or more, as appropriate: owned, possessed, bought, sold, transferred, or manufactured] dog-fighting paraphernalia.

“Dog-fighting paraphernalia” means equipment, products, implements, and materials of any kind that are used, intended for use, or designed for use in the training, preparation, or condition of a dog for fighting, or in furtherance of dog fighting.[1]

In determining whether an object is dog-fighting paraphernalia, you may consider the following: the proximity of the object in time and space to any violation of the dog-fighting statute; direct or circumstantial evidence of the intent of the person to deliver the object to any person whom the person in possession of the object knows, or should reasonably know, intends to use the object to violate the dog-fighting statute; oral or written instructions concerning its use provided with, or found in the vicinity of, the object; descriptive materials accompanying the object which explain or depict its use; and any other relevant factors.[2]

[IF POSSESSION IS CHARGED, CHARGE AS FOLLOWS]

To “possess” an item under the law, one must have a knowing, intentional control of that item accompanied by a knowledge of its character. So, a person who possesses an item such as ( IDENTIFY RELEVANT ITEM(S)) must know or be aware that he/she possesses it, and he/she must know what it is that he/she possesses or controls (that it is ). [WHERE APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to “possess” an item, one must knowingly procure or receive an item or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish his/her control if he/she chose to do so.

The State must prove beyond a reasonable doubt that a possessor acted knowingly in possessing the item. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he/she is aware that it is practically certain that the conduct will cause such a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that a particular defendant stated, for example, that he/she acted with knowledge when he/she had control over a particular thing. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances.

A person may possess (an item) even though it was not physically on his/her person at the time of the arrest, if he/she had in fact, at some time prior to his/her arrest, had control over it.

Possession means a conscious, knowing possession, either actual or constructive.



[CHARGE THOSE FOLLOWING PARAGRAPHS AS APPLY TO YOUR CASE]



ACTUAL POSSESSION

A person is in actual possession of an item when he/she first, knows what it is: that is, he/she has knowledge of its character, and second, knowingly has it on his/her person at a given time.




CONSTRUCTIVE POSSESSION[3]

Possession may be constructive instead of actual. As I just stated, a person who, with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it.

Constructive possession means possession in which the possessor does not physically have the item on his/her person but is aware that the item is present and is able to and has the intention to exercise control over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item.




[MERE PRESENCE – Read if Appropriate[4]]

Defendant’s mere presence at or near a place where [contraband] is/are discovered is not in itself, without more, proof beyond a reasonable doubt that defendant was in constructive possession of [that contraband]. It is, however, a circumstance to be considered with the other evidence in determining whether the State has proven possession of the [contraband] beyond a reasonable doubt.

Where defendant is one of the persons found in the area where [contraband] is/are discovered, you may not conclude, without more, that the State has proven beyond a reasonable doubt that he/she had possession of the [contraband] unless there are other circumstance(s) tending to permit such an inference to be drawn.[5] Such evidence can include, but is not limited to [choose as appropriate]: placement and accessibility of the [contraband]; defendant’s access to and connection with the place where the [contraband] was/were found; his/her proximity to the place where the [contraband] was/were found; his/her demeanor when confronted by police after the [contraband] was/were found; whether defendant made any inculpatory statements after the [contraband] was/were found; whether defendant possessed other [contraband] on his/her person or property when the [contraband] was/were found; [any other evidence deemed part of the totality of circumstances].[6]

In summary, the State must prove more than defendant’s mere presence at the time that the [contraband] was/were found. There must be other circumstance(s) tying defendant to the [contraband] in order for the State to prove constructive possession beyond a reasonable doubt.[7]]




JOINT POSSESSION

Possession may be sole or joint. If one person alone has actual or constructive possession of an item, possession is sole. If two or more persons share actual or constructive knowing possession of an item, possession is joint.



[RESUME CHARGE]

A person acts knowingly with respect to the nature of their conduct or the attendant circumstances if they are aware that their conduct is of that nature, or that such circumstances exist, or the person is aware of a high probability of their existence.

A person acts knowingly with respect to a result of their conduct if they are aware that it is practically certain that his/her conduct will cause such a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.[8]

The second element that the State must prove beyond a reasonable doubt is that the defendant [Choose one or more, as appropriate: owned, possessed, bought, sold, transferred, or manufactured] the dog-fighting paraphernalia for the purpose of engaging in, or otherwise promoting or facilitating, the [Choose as appropriate: fighting or baiting] of a dog.

For purposes of this section, “bait” means to attack with violence, to provoke, or to harass a dog with one or more animals for the purpose of training the dog for, or to cause a dog to engage in, a fight with or among other dogs.[9]

A person acts purposely with respect to the nature of their conduct or a result thereof if it is their conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if they are aware of the existence of such circumstances, or they believe or hope that the circumstances exist. “With purpose,” “designed,”, “with design,” or equivalent terms have the same meaning.[10]

Purpose and knowledge are conditions of the mind that cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to testify that an accused said they had a certain state of mind when they engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of their acts and their conduct, and from all they said and did at the particular time and place, and from all of the surrounding circumstances.[11]

If you find that the State did prove beyond a reasonable doubt all of the elements of the crime of dog fighting based on dog-fighting paraphernalia, then you must find the defendant guilty.

If you find that the State has not proven beyond a reasonable doubt any element of the crime of dog fighting based on dog-fighting paraphernalia as I have defined that crime to you, then you must find the defendant not guilty.




https://www.njcourts.gov/attorneys/criminalcharges.html

FALSE PUBLIC ALARMS – MISUSE OF 9-1-1 (N.J.S.A. 2C:33-3(e))

 

FALSE PUBLIC ALARMS – MISUSE OF 9-1-1

(N.J.S.A. 2C:33-3(e))

 

            The indictment charges the defendant with the offense of misuse of 9-1-1.  That section of our statute reads in pertinent part:

A person is guilty of [this crime] if the person knowingly places a call to a 9-1-1 emergency telephone system without purpose of reporting the need for 9-1-1 service.


            In order to find the defendant guilty of this offense, the State must prove each of the following elements beyond a reasonable doubt:

(1)           That he/she knowingly placed a call to a 9-1-1 emergency telephone system; and

(2)           That he/she did so without purpose of reporting the need for 9-1-1 service;

            The first element that the State must prove beyond a reasonable doubt is that the defendant knowingly placed a call to a 9-1-1 emergency telephone system.

A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their existence.  A person acts knowingly with respect to a result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.[1] 

Knowledge is a condition of the mind that cannot be seen and can only be determined by inferences from conduct, words, or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. him/her. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

The second element that the State must prove beyond a reasonable doubt is that the defendant made the call to 9-1-1 without purpose of reporting the need for 9-1-1 service.

A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he/she is aware of the existence of such circumstances or he/she believes or hope that they exist. “With purpose,” “designed,” “with design” or equivalent terms have the same meanings.[2]

Purpose is a condition of the mind that cannot be seen and can only be determined by inferences from conduct, words, or acts. Again, a state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act.  It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

            If after a consideration of all the evidence you are convinced beyond a reasonable doubt that the defendant knowingly placed a call to a 9-1-1 emergency telephone system without purpose of reporting the need for 9-1-1 service, you must find the defendant guilty. 

            If, however, after a consideration of all the evidence you find that the State has failed to prove any element of the offense beyond a reasonable doubt, you must find the defendant not guilty.



[1]     N.J.S.A. 2C:2-2b(2). 

[2]     N.J.S.A. 2C:2-2b(1).  


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