Text of NJ A 4681 (2018)

ASSEMBLY, No. 4681 STATE OF NEW JERSEY 218th LEGISLATURE INTRODUCED OCTOBER 29, 2018 Sponsored by: Assemblyman BENJIE E. WIMBERLY District 35 (Bergen and Passaic) SYNOPSIS Includes false incrimination and filing false police report as form of bias intimidation; establishes crime of false 9-1-1 call with purpose to intimidate or harass based on race or other protected class. CURRENT VERSION OF TEXT As introduced. An Act concerning false police reports and bias intimidation and amending N.J.S.2C:16-1 and N.J.S.2C:33-3. Be It Enacted by the Senate and General Assembly of the State of New Jersey: 1. N.J.S.2C:16-1 is amended to read as follows: 2C:16-1. Bias Intimidation. a. Bias Intimidation. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:28-4; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4; or N.J.S.2C:39-5, (1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or (2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or (3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. b. Permissive inference concerning selection of targeted person or property. Proof that the target of the underlying offense was selected by the defendant, or by another acting in concert with the defendant, because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity shall give rise to a permissive inference by the trier of fact that the defendant acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. c. Grading. Bias intimidation is a crime of the fourth degree if the underlying offense referred to in subsection a. is a disorderly persons offense or petty disorderly persons offense. Otherwise, bias intimidation is a crime one degree higher than the most serious underlying crime referred to in subsection a., except that where the underlying crime is a crime of the first degree, bias intimidation is a first-degree crime and the defendant upon conviction thereof may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 15 years and 30 years, with a presumptive term of 20 years. d. Gender exemption in sexual offense prosecutions. It shall not be a violation of subsection a. if the underlying criminal offense is a violation of chapter 14 of Title 2C of the New Jersey Statutes and the circumstance specified in paragraph (1), (2) or (3) of subsection a. of this section is based solely upon the gender of the victim. e. Merger. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provision of law, a conviction for bias intimidation shall not merge with a conviction of any of the underlying offenses referred to in subsection a. of this section, nor shall any conviction for such underlying offense merge with a conviction for bias intimidation. The court shall impose separate sentences upon a conviction for bias intimidation and a conviction of any underlying offense. f. Additional Penalties. In addition to any fine imposed pursuant to N.J.S.2C:43-3 or any term of imprisonment imposed pursuant to N.J.S.2C:43-6, a court may order a person convicted of bias intimidation to one or more of the following: (1) complete a class or program on sensitivity to diverse communities, or other similar training in the area of civil rights; (2) complete a counseling program intended to reduce the tendency toward violent and antisocial behavior; and (3) make payments or other compensation to a community-based program or local agency that provides services to victims of bias intimidation. g. As used in this section "gender identity or expression" means having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth. h. It shall not be a defense to a prosecution for a crime under this section that the defendant was mistaken as to the race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity of the victim. (cf: P.L.2007, c.303, s.1) 2. N.J.S.2C:33-3 is amended to read as follows: 2C:33-3. False Public Alarms. a. (1) (a) Except as otherwise provided in this section, a person is guilty of a crime of the third degree if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm. (b) A person is guilty of a crime of the second degree if the false alarm involves a report or warning of an impending bombing, hostage situation, person armed with a deadly weapon as defined by subsection c. of N.J.S.2C:11-1, or any other incident that elicits an immediate or heightened response by law enforcement or emergency services. (c) A person is guilty of a crime of the second degree if the false alarm involves a report or warning about any critical infrastructure located in this State. For purposes of this subparagraph, "critical infrastructure" means any building, place of assembly, or facility that is indispensably necessary for national security, economic stability, or public safety. (2) A person is guilty of a crime of the third degree if he knowingly causes the false alarm to be transmitted to or within any organization, official or volunteer, for dealing with emergencies involving danger to life or property. b. A person is guilty of a crime of the second degree if in addition to the report or warning initiated, circulated or transmitted under subsection a. of this section, he places or causes to be placed any false or facsimile bomb in a building, place of assembly, or facility of public transport or in a place likely to cause public inconvenience or alarm. A violation of this subsection is a crime of the first degree if it occurs during a declared period of national, State or county emergency. c. A person is guilty of a crime of the second degree if a violation of subsection a. of this section in fact results in serious bodily injury to another person or occurs during a declared period of national, State or county emergency. A person is guilty of a crime of the first degree if a violation of subsection a. of this section in fact results in death. d. For the purposes of this section, "in fact" means that strict liability is imposed. It shall not be a defense that the death or serious bodily injury was not a foreseeable consequence of the person's acts or that the death or serious bodily injury was caused by the actions of another person or by circumstances beyond the control of the actor. The actor shall be strictly liable upon proof that the crime occurred during a declared period of national, State or county emergency. It shall not be a defense that the actor did not know that there was a declared period of emergency at the time the crime occurred. e. A person is guilty of a crime of the fourth degree 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. f. A person is guilty of a crime of the third degree if the person knowingly places a call to a 9-1-1 emergency telephone system with purpose to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. All local and county law enforcement authorities shall submit an annual report, on a form prescribed by the Attorney General, to the Uniform Crime Reporting Unit, within the Division of State Police in the Department of Law and Public Safety, or to another designated recipient determined by the Attorney General, containing the number and nature of offenses under this section committed within their respective jurisdictions and the disposition of these offenses. Every two years, the Uniform Crime Reporting Unit or other designated recipient of the annual reports shall forward a summary of all reports received during the preceding two-year period, along with a summary of offenses investigated by the Division of State Police for the same period, to the State's Office of Emergency Management. (cf: P.L.2015, c.156, s.1) 3. This act shall take effect immediately. STATEMENT This bill expands the list of crimes that constitute a form of bias intimidation to include the crime of falsely incriminating another person or filing a false police report. Under the bill, a person who falsely incriminates, files a false police report, or calls the 9-1-1 emergency telephone system with the purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity would be subject to a criminal penalty. Under N.J.S.2C:16-1, a person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of certain offenses found in chapters 11 through 18 of Title 2C and N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5 with, among other things, a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. The offenses found in chapters 11 through 18 of Title 2C include, but are not limited to, terroristic threats, assault, murder, and arson. The crimes specifically listed are N.J.S.2C:33-4 (harassment); N.J.S.2C:39-3 (prohibited weapons and devices); N.J.S.2C:39-4 (possession of weapons for unlawful purpose); and N.J.S.2C:39-5 (unlawful possession of weapons). Bias intimidation is a crime of the fourth degree if the underlying offense is a disorderly persons offense or petty disorderly persons offense. A crime of the fourth degree is punishable by up to 18 months imprisonment, a fine up to $10,000, or both. Otherwise, bias intimidation is a crime graded one degree higher than the most serious underlying crime, except in cases in which the underlying crime is of the first degree, bias intimidation is a first-degree crime and the defendant, upon conviction may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 15 years and 30 years, with a presumptive term of 20 years. This bill would expand the list of underlying offenses for bias intimidation to include falsely incriminating someone or filing a false police report. Under N.J.S.2C:28-4, a person who knowingly gives or causes to be given false information to a law enforcement officer in order to implicate another commits false incrimination, a crime of the third degree. False incrimination is a crime of the second degree if the victim was implicated in a crime of the first or second degree. The penalty for a crime of the third degree is three to five years imprisonment, a fine of up to $15,000, or both. Second degree crimes are punishable by five to 10 year imprisonment, a fine of up to $150,000, or both. N.J.S.2C:28-4 also establishes the fourth degree crime of reporting to law enforcement authorities an offense or other incident that did not occur, or pretending to furnish the authorities with information relating to an arrest or incident for which the offender has no information. This bill establishes a higher criminal penalty for falsely giving information to law enforcement agencies with the purpose to intimidate a victim because of his or her race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. In addition, the bill establishes a third degree crime of knowingly placing a 9-1-1 call with purpose to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. Under N.J.S.2C:33-3, it is a fourth degree crime to call 9-1-1 without the purpose of reporting the need for 9-1-1 service.