Recent Child Porn Statute for Possession | New Jersey Sex Crime Law
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
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Administrative Office of the Courts
Office of Professional and Governmental Services
Glenn A. Grant, J.A.D. Deirdre Naughton
Acting Administrative Director of the Courts Director, Professional and Governmental Services
New Law Advisory
Advisory No. 2013-36 Issued: August 22, 2013
To: Assignment Judges
Subject: P.L. 2013, c.136 – Revises statutes and enhances penalties for child pornography offenses
Enacted: August 14, 2013
Effective: August 14, 2013
Area of Law: Criminal
Contact: Joseph Barraco, Assistant Director for Criminal Practice, 609-292-4638
On August 14, 2013, Governor Christie signed S-2493 into law as P.L. 2013, c.136. The new law took effect on August 14, 2013. A copy of the law is attached and is available on the Judiciary Infonet under Legal Reference/Legislation Affecting Courts. Below is a summary of the law.
The new law revises the State’s statutes concerning child sexual abuse and child pornography. Specifically, the law:
(1) Reorganizes subsection a. of N.J.S.A. 2C:24-4 concerning certain child endangerment offenses to distinguish the acts causing harm to a child that represent “abuse” or “neglect” from those sexual acts that impair or debauch a child’s morals;
(2) Incorporates new terms for child pornography, such as “item[s] depicting the sexual exploitation or abuse of a child;”
(3) Expands the scope of criminal possession or viewing of child pornography;
(4) Expands the scope of criminal distribution of child pornography, particularly with respect to computer file-sharing programs and peer-to-peer networks;
(5) Upgrades offenses and respective penalties associated with child endangerment focused on sexual exploitation or abuse; and
(6) Adds under “Megan’s Law,” in N.J.S.A. 2C:43-6.4, the availability of parole supervision for life for a person convicted of possessing, reproducing, or distributing an item depicting sexual exploitation or abuse.~ 2 ~
Below are additional highlights of the law.
Expanded scope of criminal possession or viewing – The law provides that a person commits a crime if that person knowingly possesses, receives, views or has under the person’s control, “through any means, including the Internet,” an item depicting the sexual exploitation or abuse of a child.
Criminal Distribution – The law adds the “display” of an item of sexual exploitation or abuse as falling under the definition of distribution, and further provides that any statutorily described form of distribution, such as “give,” “publish,” or “offer,” may establish criminal liability “whether [done] for pecuniary gain or not.” The law also incorporates newer means of distributing such as using computer file-sharing programs. Such programs may be used to share and distribute files by various means, including over the Internet or directly between computer systems on a network without the need of a central server, referred to in the law as a “peer-to-peer network.”
Distribution Using a File-Sharing Program – The law provides that in a prosecution: (1) the State is not required to offer proof that an item of sexual exploitation or abuse was actually searched, copied, transmitted, or viewed by another user of the file-sharing program; (2) it is not a defense that the defendant did not intend to distribute the item to another user of the file-sharing program or any other person; and (3) the State is not required to prove that the defendant was aware that the item was available for searching and copying and (4) the defendant is strictly liable regarding the criminal distribution for failing to designate the item as not available for sharing.
Upgrading of Offenses and Penalties – The law provides for the following enhanced penalties:
N.J.S.A. 2C:24-4, subsection b.(3): The crime of causing or permitting a child to engage in a prohibited sexual act, knowing or intending that the sexual act will be reproduced or will be part of an exhibition or performance, is upgraded to a crime of the first degree, regardless of the relationship between the offender and the child. Under the former law, this offense is generally a crime of the second degree, except in cases in which the offender is a parent, guardian, or other person legally charged with a child’s care or custody, in which case it is considered a crime of the first degree. Under the new law, the court imposing the term of imprisonment must, pursuant to the provisions of the “No Early Release Act,” N.J.S.A. 2C:43-7.2, fix a minimum term of 85% of the sentence imposed, during which the offender is ineligible for parole. As in the former law, an offender who commits or attempted to commit this crime continues to be subject to a special sentence of parole supervision for life under “Megan’s Law,” N.J.S.A. 2C:43-6.4.
N.J.S.A. 2C:24-4, subsection b.(4): The crime of reproducing, by photographs or other means, or reproducing using any device (including a computer), a child engaging in a prohibited sexual act remains a crime of the second degree. The new law, however, establishes that an offender who commits or ~ 3 ~ attempts to commit this crime is subject, upon motion by the prosecutor, to a special sentence of parole supervision for life unless the court finds that such special sentence is not needed to protect the community or deter the offender from future criminal activity.
N.J.S.A. 2C:24-4, subsection b.(5)(a): The crime of distribution, possessing with the intent to distribute, or distribution using a file-sharing program of any items of sexual exploitation or abuse is graded a crime of the second degree. Under the new law, if this offense involves 25 or more items depicting sexual exploitation or abuse, the offender must be sentenced to a mandatory minimum term of imprisonment fixed at, or between, one-third to one-half of the sentence imposed or five years, whichever is greater, during which time the offender would be ineligible for parole. The law clarifies that, for aggregation purposes, each depiction of the sexual exploitation or abuse is considered a separate item, and the court must aggregate all items involved, whether the act or acts constituting the offense occurred at the same time or at different times, and with respect to distribution, whether such act or acts of distribution were to the same person or several persons, or occurred at different times. Further, under the new law, a record of conviction for a distribution offense is ineligible for expungement.
Pursuant to the new law, a person convicted of a second or subsequent offense, for which a prior conviction for causing or permitting the reproduction of a prohibited sexual act or reproducing such act could count, the person must be sentenced to an extended term of imprisonment of between 10 and 20 years pursuant to the provisions of N.J.S.A. 2C:43-7.
Also, the new law establishes that an offender who commits or attempted to commit a distribution crime is subject, upon motion by the prosecutor, to a special sentence of parole supervision for life unless the court finds that such special sentence is not needed to protect the community or to deter the offender from future criminal activity.
N.J.S.A. 2C:24-4, subsection b.(5)(b): The crime of possession of any items of sexual exploitation or abuse is a crime of the third degree. Under the new law, if this offense involves 100 or more items depicting sexual exploitation or abuse, then any generally applicable presumption against imprisonment under subsection e. of N.J.S.A. 2C:44-1 does not apply and the offender must serve a sentence of imprisonment, unless the court is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others. The law clarifies that, for aggregation purposes, each depiction of the sexual exploitation or abuse is considered a separate item, and the court must aggregate all items involved, whether the possession occurred at the same time or at different times. Further, the new law provides that a record of conviction for possession of any items of sexual exploitation or abuse is ineligible for expungement.~ 4 ~
The new law provides that a person convicted of a second or subsequent offense, for which a prior conviction for causing or permitting the reproduction of a prohibited sexual act or reproducing such act could count, the person must be sentenced to an extended term of imprisonment of between five and 10 years pursuant to N.J.S.A. 2C:43-7.
Finally, the new law establishes that an offender who commits or attempts to commit the crime of possession of any items of sexual exploitation or abuse is subject, upon motion by the prosecutor, to a special sentence of parole supervision for life, unless the court finds that such special sentence is not needed to protect the community or deter the offender from future criminal activity.
Please refer to P.L. 2013, c.136 for specific sentencing provisions. Kindly advise appropriate staff of this new law. Please contact Joseph Barraco, Assistant Director, AOC Criminal Division, with any questions regarding Chapter 136.
attachment
c: Glenn A. Grant
Criminal Division Judges
Directors
Assistant Directors
Clerks of the Court
Trial Court Administrators
Criminal Division ManagersPage 1 of 12
P.L. 2013, c. 136
Approved August 14, 2013
[First Reprint]
SENATE, No. 2493
STATE OF NEW JERSEY
215th LEGISLATURE
INTRODUCED JANUARY 28, 2013
Sponsored by:
Senator KEVIN J. O’TOOLE, District 40 (Bergen, Essex, Morris and Passaic)
Senator STEPHEN M. SWEENEY, District 3 (Cumberland, Gloucester and Salem)
Senator DONALD NORCROSS, District 5 (Camden and Gloucester)
Assemblyman CHARLES MAINOR, District 31 (Hudson)
Assemblyman DAVID P. RIBLE, District 30 (Monmouth and Ocean)
Assemblyman SCOTT T. RUMANA, District 40 (Bergen, Essex, Morris and Passaic)
Assemblyman GILBERT “WHIP” L. WILSON, District 5 (Camden and Gloucester)
Assemblyman DAVID C. RUSSO, District 40 (Bergen, Essex, Morris and Passaic)
Assemblywoman MARLENE CARIDE, District 36 (Bergen and Passaic)
Assemblywoman ANGELICA M. JIMENEZ, District 32 (Bergen and Hudson)
Assemblywoman MARY PAT ANGELINI, District 11 (Monmouth)
Assemblyman JON M. BRAMNICK, District 21 (Morris, Somerset and Union)
Co-Sponsored by: Senators Bateman, Cardinale, Pou, Scutari, Addiego, Allen, Beach, Beck, A.R.Bucco, Cunningham, Greenstein, Madden, Oroho, Pennacchio, Ruiz, Sarlo, Stack, Turner, Van Drew, Weinberg, Assemblywomen Handlin, N.Munoz, B.DeCroce, Assemblymen Coughlin, Space and Assemblywoman McHose
SYNOPSIS
Revises statutes and enhances penalties for offenses involving child pornography; makes crime of causing a child to engage in a prohibited sexual act subject to “No Early Release Act.”
CURRENT VERSION OF TEXT
As reported by the Assembly Appropriations Committee on June 6, 2013, with amendments.
AN ACT concerning the sexual exploitation or abuse of a child and amending various parts of the statutory law.
BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:
1[1. N.J.S.2C:24-4 is amended to read as follows:
2C:24-4. Endangering Welfare of Children.
a. (1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child [, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-Page 2 of 12
8.21)] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this [subsection] paragraph to a child [under the age of 16] is guilty of a crime of the third degree.
(2) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
b. (1) As used in this subsection:
“Child” means any person under [16] 18 years of age.
“Distribute” means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not. The term also includes an agreement or attempt to distribute.
“File-sharing program” means a computer program, application, software or operating system that allows the user of a computer on which such program, application, software or operating system is installed to designate files as available for searching by and copying to one or more other computers, to transmit such designated files directly to one or more other computers, and to request the transmission of such designated files directly from one or more other computers. The term “file-sharing program” includes but is not limited to a computer program, application or software that enables a computer user to participate in a peer-to-peer network.
“Internet” means the international computer network of both federal and non-federal interoperable packet switched data networks.
“Item depicting the sexual exploitation or abuse of a child” means a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act.
“Peer-to-peer network” means a connection of computer systems through which files are shared directly between the systems on a network without the need of a central server.
“Prohibited sexual act” means
(a) Sexual intercourse; or
(b) Anal intercourse; or
(c) Masturbation; or
(d) Bestiality; or
(e) Sadism; or
(f) Masochism; or
(g) Fellatio; or
(h) Cunnilingus;
(i) Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or
(j) Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.
“Reproduction” means, but is not limited to, computer generated images.
(2) (Deleted by amendment, P.L.2001, c.291).
(3) A person commits a crime of the [second] first degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an Page 3 of 12
exhibition or performance. [If the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.]
(4) [Any person who] A person commits a crime of the second degree if he photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act [is guilty of a crime of the second degree].
(5) (a) [Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.] A person commits a crime of the second degree if, by any means, including but not limited to the Internet, he:
(1) knowingly distributes an item depicting the sexual exploitation or abuse of a child;
(2) knowingly possesses an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item; or
(3) using a file-sharing program, knowingly stores or maintains an item depicting the sexual exploitation or abuse of a child which is designated as available for searching by or copying to one or more other computers.
In a prosecution under subparagraph (a) of paragraph (3) of this subsection, the State shall not be required to offer proof that an item depicting the sexual exploitation or abuse of a child had actually been searched, copied, transmitted or viewed by another user of the file-sharing program, or by any other person, and it shall be no defense that the defendant did not intend to distribute the item to another user of the file-sharing program or to any other person. Nor shall the State be required to prove that the defendant was aware that the item depicting the sexual exploitation or abuse of a child was available for searching or copying to one or more other computers, and the defendant shall be strictly liable for failing to designate the item as not available for searching or copying by one or more other computers.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 25 or more items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.
For purposes of this subparagraph, the term “possess” includes receiving, viewing, or having under one’s control, through any means, including the Internet.
(b) [Any person who] A person commits a crime of the third degree if he knowingly possesses, receives, views or [knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree] has under his control, Page 4 of 12
through any means, including the Internet, an item depicting the sexual exploitation or abuse of a child.
Notwithstanding the provisions of subsection e. of N.J.S.2C:44-1, in any instance where a person was convicted of an offense under this subparagraph that involved 100 or more items depicting the sexual exploitation or abuse of a child, the court shall impose a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.
Nothing in this subparagraph shall be construed to preclude or limit any prosecution or conviction for the offense set forth in subparagraph (a) of this paragraph.
(6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of [16] 18 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of [16] 18.
If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of [16] 18, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of [16] 18, nor shall it be a defense that the actor believed that the child was [16] 18 years of age or older, even if such a mistaken belief was reasonable.
(7) For aggregation purposes, each depiction of the sexual exploitation or abuse of a child shall be considered a separate item, and each individual act of distribution of an item depicting the sexual exploitation or abuse of a child shall be considered a separate item. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (a) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the act or acts constituting the violation occurred at the same time or at different times and, with respect to distribution, whether the act or acts of distribution were to the same person or several persons or occurred at different times, provided that each individual act was committed within the applicable statute of limitations. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (b) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the possession of such items occurred at the same time or at different times, provided that each individual act was committed within the applicable statute of limitations.
(cf: P.L.2001, c.291, s.1)]1
11. N.J.S.2C:24-4 is amended to read as follows:
2C:24-4. Endangering Welfare of Children.
a. (1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child[, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and section 1 of P.L.1974, c.119 (C.9:6-8.21)] is guilty of a crime of the second degree. Any other person who engages in Page 5 of 12
conduct or who causes harm as described in this [subsection] paragraph to a child [under the age of 18] is guilty of a crime of the third degree.
(2) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
b. (1) As used in this subsection:
“Child” means any person under 18 years of age.
“Distribute” means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not. The term also includes an agreement or attempt to distribute.
“File-sharing program” means a computer program, application, software or operating system that allows the user of a computer on which such program, application, software or operating system is installed to designate files as available for searching by and copying to one or more other computers, to transmit such designated files directly to one or more other computers, and to request the transmission of such designated files directly from one or more other computers. The term “file-sharing program” includes but is not limited to a computer program, application or software that enables a computer user to participate in a peer-to-peer network.
“Internet” means the international computer network of both federal and non-federal interoperable packet switched data networks.
“Item depicting the sexual exploitation or abuse of a child” means a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act.
“Peer-to-peer network” means a connection of computer systems through which files are shared directly between the systems on a network without the need of a central server.
“Prohibited sexual act” means
(a) Sexual intercourse; or
(b) Anal intercourse; or
(c) Masturbation; or
(d) Bestiality; or
(e) Sadism; or
(f) Masochism; or
(g) Fellatio; or
(h) Cunnilingus; or
(i) Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or
(j) Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.
“Reproduction” means, but is not limited to, computer generated images.
(2) (Deleted by amendment, P.L.2001, c.291).
(3) A person commits a crime of the [second] first degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance. [If the person is a parent, guardian or other person legally Page 6 of 12
charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.]
(4) [Any person who] A person commits a crime of the second degree if he photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act [is guilty of a crime of the second degree].
(5) (a) [Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree] A person commits a crime of the second degree if, by any means, including but not limited to the Internet, he:
(i) knowingly distributes an item depicting the sexual exploitation or abuse of a child;
(ii) knowingly possesses an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item; or
(iii) knowingly stores or maintains an item depicting the sexual exploitation or abuse of a child using a file-sharing program which is designated as available for searching by or copying to one or more other computers.
In a prosecution under sub-subparagraph (iii) of this subparagraph, the State shall not be required to offer proof that an item depicting the sexual exploitation or abuse of a child had actually been searched, copied, transmitted or viewed by another user of the file-sharing program, or by any other person, and it shall be no defense that the defendant did not intend to distribute the item to another user of the file-sharing program or to any other person. Nor shall the State be required to prove that the defendant was aware that the item depicting the sexual exploitation or abuse of a child was available for searching or copying to one or more other computers, and the defendant shall be strictly liable for failing to designate the item as not available for searching or copying by one or more other computers.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 25 or more items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.
For purposes of this subparagraph, the term “possess” includes receiving, viewing, or having under one’s control, through any means, including the Internet.
(b) [Any person who] A person commits a crime of the third degree if he knowingly possesses [or], knowingly views [any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the third degree] , or knowingly has under his control, through any means, including the Internet, an item depicting the sexual exploitation or abuse of a child.Page 7 of 12
Notwithstanding the provisions of subsection e. of N.J.S.2C:44-1, in any instance where a person was convicted of an offense under this subparagraph that involved 100 or more items depicting the sexual exploitation or abuse of a child, the court shall impose a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.
Nothing in this subparagraph shall be construed to preclude or limit any prosecution or conviction for the offense set forth in subparagraph (a) of this paragraph.
(6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 18 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 18. If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of 18, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 18, nor shall it be a defense that the actor believed that the child was 18 years of age or older, even if such a mistaken belief was reasonable.
(7) For aggregation purposes, each depiction of the sexual exploitation or abuse of a child shall be considered a separate item, and each individual act of distribution of an item depicting the sexual exploitation or abuse of a child shall be considered a separate item. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (a) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the act or acts constituting the violation occurred at the same time or at different times and, with respect to distribution, whether the act or acts of distribution were to the same person or several persons or occurred at different times, provided that each individual act was committed within the applicable statute of limitations. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (b) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the possession of such items occurred at the same time or at different times, provided that each individual act was committed within the applicable statute of limitations.1
(cf: P.L.2013, c.51, s.13)
2. Section 2 of P.L.1994, c.130 (C.2C:43-6.4) is amended to read as follows:
2. a. Notwithstanding any provision of law to the contrary, a judge imposing sentence on a person who has been convicted of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1, endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4, endangering the welfare of a child pursuant to paragraph (3) of subsection b. of N.J.S.2C:24-4, luring or an attempt to commit any of these offenses shall include, in addition to any sentence authorized by this Code, a special sentence of parole supervision for life. Page 8 of 12
Notwithstanding any provision of law to the contrary, a court imposing sentence on a person who has been convicted of endangering the welfare of a child pursuant to paragraph (4) or (5) of subsection b. of N.J.S.2C:24-4, or an attempt to commit either of these offenses shall include, upon motion of the prosecutor, a special sentence of parole supervision for life in addition to any sentence authorized by Title 2C of the New Jersey Statutes, unless the court finds on the record that the special sentence is not needed to protect the community or deter the defendant from future criminal activity.
b. The special sentence of parole supervision for life required by this section shall commence immediately upon the defendant’s release from incarceration. If the defendant is serving a sentence of incarceration for another offense at the time he completes the custodial portion of the sentence imposed on the present offense, the special sentence of parole supervision for life shall not commence until the defendant is actually released from incarceration for the other offense. Persons serving a special sentence of parole supervision for life shall remain in the legal custody of the Commissioner of Corrections, shall be supervised by the Division of Parole of the State Parole Board, shall be subject to the provisions and conditions set forth in subsection c. of section 3 of P.L.1997, c.117 (C.30:4-123.51b) and sections 15 through 19 and 21 of P.L.1979, c.441 (C.30:4-123.59 through 30:4-123.63 and 30:4-123.65), and shall be subject to conditions appropriate to protect the public and foster rehabilitation. Such conditions may include the requirement that the person comply with the conditions set forth in subsection f. of this section concerning use of a computer or other device with access to the Internet. If the defendant violates a condition of a special sentence of parole supervision for life, the defendant shall be subject to the provisions of sections 16 through 19 and 21 of P.L.1979, c.441 (C.30:4-123.60 through 30:4-123.63 and 30:4-123.65), and for the purpose of calculating the limitation on time served pursuant to section 21 of P.L.1979, c.441 (C.30:4-123.65) the custodial term imposed upon the defendant related to the special sentence of parole supervision for life shall be deemed to be a term of life imprisonment. When the court suspends the imposition of sentence on a defendant who has been convicted of any offense enumerated in subsection a. of this section, the court may not suspend imposition of the special sentence of parole supervision for life, which shall commence immediately, with the Division of Parole of the State Parole Board maintaining supervision over that defendant, including the defendant’s compliance with any conditions imposed by the court pursuant to N.J.S.2C:45-1, in accordance with the provisions of this subsection. Nothing contained in this subsection shall prevent the court from at any time proceeding under the provisions of N.J.S.2C:45-1 through 2C:45-4 against any such defendant for a violation of any conditions imposed by the court when it suspended imposition of sentence, or prevent the Division of Parole from proceeding under the provisions of sections 16 through 19 and 21 of P.L.1979, c.441 (C.30:4-123.60 through 30:4-123.63 and C.30:4-123.65) against any such defendant for a violation of any conditions of the special sentence of parole supervision for life, including the conditions imposed by the court pursuant to N.J.S.2C:45-1. In any such proceeding by the Division of Parole, the provisions of subsection c. of section 3 of P.L.1997, c.117 (C.30:4-123.51b) authorizing revocation and return to prison shall be applicable to such a defendant, notwithstanding that the defendant may not have been sentenced to or served any portion of a custodial term for conviction of an offense enumerated in subsection a. of this section.
c. A person sentenced to a term of parole supervision for life may petition the Superior Court for release from that parole supervision. The judge may grant a petition for release from a special sentence of parole supervision for life only upon proof by clear and convincing evidence that the person has not committed a crime for 15 years since the last conviction or release from incarceration, whichever is later, and that the person is not likely Page 9 of 12
to pose a threat to the safety of others if released from parole supervision. Notwithstanding the provisions of section 22 of P.L.1979, c.441 (C.30:4-123.66), a person sentenced to a term of parole supervision for life may be released from that parole supervision term only by court order as provided in this subsection.
d. A person who violates a condition of a special sentence imposed pursuant to this section without good cause is guilty of a crime of the fourth degree. Notwithstanding any other law to the contrary, a person sentenced pursuant to this subsection shall be sentenced to a term of imprisonment, unless the court is clearly convinced that the interests of justice so far outweigh the need to deter this conduct and the interest in public safety that a sentence to imprisonment would be a manifest injustice. Nothing in this subsection shall preclude subjecting a person who violates any condition of a special sentence of parole supervision for life to the provisions of sections 16 through 19 and 21 of P.L.1979, c.441 (C.30:4-123.60 through 30:4-123.63 and C.30:4-123.65) pursuant to the provisions of subsection c. of section 3 of P.L.1997, c.117 (C.30:4-123.51b).
e. A person who, while serving a special sentence of parole supervision for life imposed pursuant to this section, commits a violation of N.J.S.2C:11-3, N.J.S.2C:11-4, N.J.S.2C:11-5, subsection b. of N.J.S.2C:12-1, N.J.S.2C:13-1, section 1 of P.L.1993, c.291 (C.2C:13-6), N.J.S.2C:14-2, N.J.S.2C:14-3, N.J.S.2C:24-4, N.J.S.2C:18-2 when the offense is a crime of the second degree, or subsection a. of N.J.S.2C:39-4 shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7, which term shall, notwithstanding the provisions of N.J.S.2C:43-7 or any other law, be served in its entirety prior to the person’s resumption of the term of parole supervision for life.
f. The special sentence of parole supervision for life required by this section may include any of the following Internet access conditions:
(1) Prohibit the person from accessing or using a computer or any other device with Internet capability without the prior written approval of the court except the person may use a computer or any other device with Internet capability in connection with that person’s employment or search for employment with the prior approval of the person’s parole officer;
(2) Require the person to submit to periodic unannounced examinations of the person’s computer or any other device with Internet capability by a parole officer, law enforcement officer or assigned computer or information technology specialist, including the retrieval and copying of all data from the computer or device and any internal or external peripherals and removal of such information, equipment or device to conduct a more thorough inspection;
(3) Require the person to submit to the installation on the person’s computer or device with Internet capability, at the person’s expense, one or more hardware or software systems to monitor the Internet use; [and]
(4) Require the person to submit to any other appropriate restrictions concerning the person’s use or access of a computer or any other device with Internet capability[.] ; and
(5) Require the person to disclose all passwords used by the person to access any data, information, image, program, signal or file on the person’s computer or any other device with Internet capability.
(cf: P.L.2007, c.219, s.3)
3. N.J.S.2C:52-2 is amended to read as follows:
2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the Page 10 of 12
expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in [section] N.J.S.2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:
(1) less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
(2) at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction.
In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person’s age at the time of the offense, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay.
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: [Section] N.J.S. 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in [section] N.J.S. 2C:11-5; [section] N.J.S. 2C:13-1 (Kidnapping); [section 2C:13-6] section 1 of P.L.1993, c.291 (C.2C:13-6) (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); [section] N.J.S. 2C:14-2 (Sexual Assault or Aggravated Sexual Assault); [section] N.J.S. 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, [section] N.J.S. 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, [section] N.J.S. 2C:13-2 (Criminal Restraint) or [section] N.J.S. 2C:13-3 (False Imprisonment); [section] N.J.S. 2C:15-1 (Robbery); [section] N.J.S. 2C:17-1 (Arson and Related Offenses); [section] N.J.S. 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); [section] N.J.S. 2C:24-4b(4) (Endangering the welfare of a child); [section] N.J.S. 2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); [section] N.J.S. 2C:24-4b.(5)(a) [(Selling or manufacturing child pornography)] (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual Page 11 of 12
exploitation or abuse of a child); N.J.S. 2C:24-4b.(5)(b) (Possessing items depicting the sexual exploitation or abuse of a child); [section] N.J.S. 2C:28-1 (Perjury); [section] N.J.S. 2C:28-2 (False Swearing); [section] N.J.S. 2C:34-1b.(4) (Knowingly promoting the prostitution of the actor’s child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.
Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or
(3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.
d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
(cf: PL.2009, c.188, s.1)
4. Section 2 of P.L.1997, c.117 (C.2C:43-7.2) is amended as follows:
2. a. A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole.
b. The minimum term required by subsection a. of this section shall be fixed as a part of every sentence of incarceration imposed upon every conviction of a crime enumerated in subsection d. of this section, whether the sentence of incarceration is determined pursuant to N.J.S.2C:43-6, N.J.S.2C:43-7, N.J.S.2C:11-3 or any other provision of law, and shall be calculated based upon the sentence of incarceration actually imposed. The provisions of subsection a. of this section shall not be construed or applied to reduce the time that must be served before eligibility for parole by an inmate sentenced to a mandatory minimum period of incarceration. Solely for the purpose of calculating the minimum term of parole ineligibility pursuant to subsection a. of this section, a sentence of life imprisonment shall be deemed to be 75 years.
c. Notwithstanding any other provision of law to the contrary and in addition to any other sentence imposed, a court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to this section shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree, or a three-year term of parole supervision if the defendant is being sentenced for a crime of the second degree. The term of parole supervision shall commence upon the completion of the sentence Page 12 of 12
of incarceration imposed by the court pursuant to subsection a. of this section unless the defendant is serving a sentence of incarceration for another crime at the time he completes the sentence of incarceration imposed pursuant to subsection a., in which case the term of parole supervision shall commence immediately upon the defendant’s release from incarceration. During the term of parole supervision the defendant shall remain in release status in the community in the legal custody of the Commissioner of the Department of Corrections and shall be supervised by the State Parole Board as if on parole and shall be subject to the provisions and conditions of section 3 of P.L.1997, c.117 (C.30:4-123.51b).
d. The court shall impose sentence pursuant to subsection a. of this section upon conviction of the following crimes or an attempt or conspiracy to commit any of these crimes:
(1) N.J.S.2C:11-3, murder;
(2) N.J.S.2C:11-4, aggravated manslaughter or manslaughter;
(3) N.J.S.2C:11-5, vehicular homicide;
(4) subsection b. of N.J.S.2C:12-1, aggravated assault;
(5) subsection b. of section 1 of P.L.1996, c.14 (2C:12-11), disarming a law enforcement officer;
(6) N.J.S.2C:13-1, kidnapping;
(7) subsection a. of N.J.S.2C:14-2, aggravated sexual assault;
(8) subsection b. of N.J.S.2C:14-2 and paragraph (1) of subsection c. of N.J.S.2C:14-2, sexual assault;
(9) N.J.S.2C:15-1, robbery;
(10) section 1 of P.L.1993, c.221 (C.2C:15-2), carjacking;
(11) paragraph (1) of subsection a. of N.J.S.2C:17-1, aggravated arson;
(12) N.J.S.2C:18-2, burglary;
(13) subsection a. of N.J.S.2C:20-5, extortion;
(14) subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), booby traps in manufacturing or distribution facilities;
(15) N.J.S.2C:35-9, strict liability for drug induced deaths;
(16) section 2 of P.L.2002, c.26 (C.2C:38-2), terrorism;
(17) section 3 of P.L.2002, c.26 (C.2C:38-3), producing or possessing chemical weapons, biological agents or nuclear or radiological devices; [or]
(18) N.J.S.2C:41-2, racketeering, when it is a crime of the first degree: or
(19) paragraph (3) of subsection b. of N.J.S.2C:24-4, causing or permitting a child to engage in a prohibited sexual act, knowing that the act may be reproduced or reconstructed in any manner, or be part of an exhibition or performance.
e. (Deleted by amendment, P.L.2001, c.129).
(cf: P.L. 2007, c.341, s.6)
5. This act shall take effect immediately.
