An Act concerning criminal penalties for offenses related to theft from a carrier, amending N.J.S. 2C:20-1 and N.J.S. 2C:20-7 and supplementing Title 2C of the New Jersey Statutes.

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

1. N.J.S. 2C:20-1 is amended to read as follows:

2C:20-1. Definitions. In chapters 20 and 21, unless a different meaning plainly is required:

a. "Deprive" means: (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.

b. "Fiduciary" means an executor, general administrator of an intestate, administrator with the will annexed, substituted administrator, guardian, substituted guardian, trustee under any trust, express, implied, resulting or constructive, substituted trustee, executor, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent or officer of a corporation, public or private, temporary administrator, administrator, administrator pendente lite, administrator ad prosequendum, administrator ad litem or other person acting in a similar capacity. "Fiduciary" shall include an employee of, an agent of, or independant contractor with a carrier as defined in subsection w. of this section and the employee, agent or subcontractor shall be considered to be acting in the capacity of a fiduciary of the carrier employee.

c. "Financial institution" means a bank, insurance company, credit union, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.

d. "Government" means the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.

e. "Movable property" means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location. "Immovable property" is all other property.

f. "Obtain" means: (1) in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof.

g. "Property" means anything of value, including real estate, tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.

h. "Property of another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.

i. "Trade secret" means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula or improvement which is secret and of value. A trade secret shall be presumed to be secret when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

j. "Dealer in property" means a person who buys and sells property as a business.

k. "Traffic" means:

(1) To sell, transfer, distribute, dispense or otherwise dispose of property to another person; or

(2) To buy, receive, possess, or obtain control of or use property, with intent to sell, transfer, distribute, dispense or otherwise dispose of such property to another person.

l. "Broken succession of title" means lack of regular documents of purchase and transfer by any seller except the manufacturer of the subject property, or possession of documents of purchase and transfer by any buyer without corresponding documents of sale and transfer in possession of seller, or possession of documents of sale and transfer by seller without corresponding documents of purchase and transfer in possession of any buyer.

m. "Person" includes any individual or entity or enterprise, as defined herein, holding or capable of holding a legal or beneficial interest in property.

n. "Anything of value" means any direct or indirect gain or advantage to any person.

o. "Interest in property which has been stolen" means title or right of possession to such property.

p. "Stolen property" means property that has been the subject of any unlawful taking.

q. "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities.

r. "Attorney General" includes the Attorney General of New Jersey, his assistants and deputies. The term shall also include a county prosecutor or his designated assistant prosecutor, if a county prosecutor is expressly authorized in writing by the Attorney General to carry out the powers conferred on the Attorney General by this chapter.

s. "Access device" means property consisting of any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number, personal identification number, or any other data intended to control or limit access to telecommunications or other computer networks in either human readable or computer readable form, either copy or original, that can be used to obtain telephone service. Access device also means property consisting of a card, code or other means of access to an account held by a financial institution, or any combination thereof, that may be used by the account holder for the purpose of initiating electronic fund transfers.

t. "Defaced access device" means any access device, in either human readable or computer readable form, either copy or original, which has been removed, erased, defaced, altered, destroyed, covered or otherwise changed in any manner from its original configuration.

u. "Domestic companion animal" means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.

v. "Personal identifying information" means any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual and includes, but is not limited to, the name, address, telephone number, date of birth, social security number, official State issued identification number, employer or taxpayer number, place of employment, employee identification number, demand deposit account number, savings account number, credit card number, mother's maiden name, unique biometric data, such as fingerprint, voice print, retina or iris image or other unique physical representation, or unique electronic identification number, address or routing code of the individual.

w. "Carrier" means: (1) any business or establishment primarily operating for the purpose of conveying goods, property or passengers for compensation from one place to another by road, highway, rail, water or air, including but not limited to any pipeline system, railroad car, motortruck, truck, trailer, semi-trailer, commercial motor vehicle or other vehicle, any steamboat, vessel or aircraft; including the storage and warehousing of goods and property, including, but not limited to any tank or storage facility, warehouse, terminal, station, station house, platform, depot, wharf, pier, or from any ocean, intermodal, container freight station or freight consolidation facility; or (2) any business or establishment that conveys goods or property which it owns or has title to, from one place to another, by road, highway, rail, water or air including the storage and warehousing of goods and property incidental to their conveyance from one place to another including baggage.

(cf: P.L. 2004, c.11)

2. N.J.S. 2C:20-7 is amended to read as follows:

2C:20-7. Receiving Stolen Property.

a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.

b. Presumption of knowledge. The requisite knowledge or belief is presumed in the case of a person who:

(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or

(2) Has received stolen property in another transaction within the year preceding the transaction charged; or

(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it; or

(4) Is found in possession of two or more defaced access devices; or

(5) Is found in possession of property of a carrier without proper documentation, satisfactory explanation or other evidence of right to possession.

(cf: P.L.1997, c.6, s.3)

3. (New section) a. Notwithstanding the provisions of subparagraph (e) of paragraph (2) of subsection b. of N.J.S.2C:20-2, a person who commits theft from a carrier in breach of his obligation in his capacity as a fiduciary is guilty of a crime of the second degree. If, in the course of committing the theft, the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the use of a deadly weapon, he is guilty of a crime of the first degree. As used herein, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.

b. (1) A person convicted of a second or subsequent offense in breach of his obligation in his capacity as a fiduciary under this section shall be sentenced to a term of imprisonment that shall include, unless the person is sentenced pursuant to the provisions of N.J.S.2C:43-7, a mandatory minimum term of one-third to one-half of the sentence imposed, or two years, whichever is greater, during which time the defendant shall not be eligible for parole. If the person is sentenced pursuant to N.J.S.2C:43-7, the court shall impose a minimum term of one-third to one-half of the sentence imposed, or three years, whichever is greater. The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section. For the purposes of this section an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to this section, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to this section.

(2) A person convicted of a second or subsequent offense in breach of his obligation in his capacity as a fiduciary under this section who, while in the course of committing the theft, used or threatened the use of any weapon, as defined in N.J.S.2C:39-1, shall be sentenced to a term of imprisonment that shall include, unless the person is sentenced pursuant to the provisions of N.J.S.2C:43-7, a mandatory minimum term of one-third to one-half of the sentence imposed, or four years, whichever is greater, during which time the defendant shall not be eligible for parole. If the person is sentenced pursuant to N.J.S.2C:43-7, the court shall impose a minimum term of one-third to one-half of the sentence imposed, or six years, whichever is greater. The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section. For the purposes of this section an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to this section, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to this section.

4. (New section) a. A person is a leader of a theft of carrier property network if he conspires with others as an organizer, supervisor, financier or manager to engage for profit in a scheme or course of conduct to unlawfully take, dispose of, distribute, bring into or transport in this State property stolen from a carrier.

(1) Except as provided in paragraph (2) of this subsection, leader of a theft of carrier property network is a crime of the second degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, the court may impose a fine not to exceed $250,000 or five times the retail value of the property seized at the time of the arrest, whichever is greater.

(2) Leader of a theft of carrier property network is a crime of the first degree if the scheme or course of conduct to unlawfully take, dispose of, distribute, bring into or transport in this State property stolen from a carrier was conducted with the use or threatened use of any weapon, as defined in N.J.S.2C:39-1.

b. Notwithstanding the provisions of N.J.S.2C:1-8, a conviction of leader of a theft of carrier property network shall not merge with the conviction for any offense which is the object of the conspiracy. Nothing contained in this act shall prohibit the court from imposing an extended term pursuant to N.J.S.2C:43-7; nor shall this act be construed in any way to preclude or limit the prosecution or conviction of any person for conspiracy under N.J.S.2C:5-2, or any prosecution or conviction for any other offense.

c. It shall not be necessary in any prosecution under this act for the State to prove that any intended profit was actually realized. The trier of fact may infer that a particular scheme or course of conduct was undertaken for profit from all of the attending circumstances, including but not limited to the number of persons involved in the scheme or course of conduct, the actor's net worth and his expenditures in relation to his legitimate sources of income, the amount of property or number of incidents of theft, or the amount of cash or currency involved.

d. It shall not be a defense to a prosecution under this act that the stolen property was brought into or transported in this State solely for ultimate distribution in another jurisdiction; nor shall it be a defense that any profit was intended to be made in another jurisdiction.

e. A person convicted of a second or subsequent offense under this section shall be sentenced to a term of imprisonment that shall include, unless the person is sentenced pursuant to the provisions of N.J.S. 2C:43-7, a mandatory minimum term of one-third to one-half of the sentence imposed, or two years, whichever is greater, during which time the defendant shall not be eligible for parole. If the person is sentenced pursuant to N.J.S.2C:43-7, the court shall impose a minimum term of one-third to one-half of the sentence imposed, or three years, whichever is greater. The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section. For the purposes of this section an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to this section, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to this section.

f. It shall be a rebuttable presumption that a person convicted as leader of a theft of carrier property network authorized the use or threatened use of a weapon, as defined in N.J.S.2C:39-1 and, notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, the court may impose a fine not to exceed $500,000 or five times the retail value of the property seized at the time of the arrest, whichever is greater.

5. (New section) a. A person convicted under the provisions of chapter 20 of Title 2C of the New Jersey Statutes of theft or unlawful taking of property from a carrier shall be subject, notwithstanding the terms of imprisonment provided in N.J.S.2C:43-6 or N.J.S.2C:43-8, to a minimum term of imprisonment of not less than 120 days for the second offense and to a minimum term of imprisonment of not less than 270 days for a third or subsequent offense.

b. A person convicted under the provisions of chapter 20 of Title 2C of the New Jersey Statutes of theft or unlawful taking of property from a carrier who, while in the course of committing the theft, used or threatened the use of a deadly weapon, as defined in section 3 of P.L. c. (C. ) (pending before the Legislature as section 3 of this bill), shall be subject, notwithstanding the terms of imprisonment provided in N.J.S.2C:43-6 or N.J.S.2C:43-8, to a minimum term of imprisonment of not less than 240 days for the second offense and to a minimum term of imprisonment of not less than 540 days for a third or subsequent offense.

6. (New section) a. In addition to any other disposition authorized by law, a person convicted under the provisions of chapter 20 of Title 2C of the New Jersey Statutes of theft or unlawful taking of property from a carrier, including leader of a theft of carrier property network and operating a facility for the sale of property stolen from a carrier, shall, except as provided in subsection c., be subject:

(1) For the first offense, to a penalty of $500;

(2) For the second offense, to a penalty of $1,000; and

(3) For a third or subsequent offense, to a penalty of $2,000. b. In addition to any other disposition authorized by law, a person convicted under the provisions of chapter 20 of Title 2C of the New Jersey Statutes of theft or unlawful taking of property from a carrier, including leader of a theft of carrier property network who, while in the course of committing the theft, used or threatened the use of a weapon, as defined in N.J.S.2C:39-1, shall be subject:

(1) For the first offense, to a penalty of $1,000;

(2) For the second offense, to a penalty of $2,000; and

(3) For a third or subsequent offense, to a penalty of $4,000.

c. All penalties provided for in this section shall be collected as provided for the collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4), and shall be distributed in accordance with the provisions of N.J.S.2C:64-6 as if the collected monies were the proceeds of property forfeited pursuant to the provisions of chapter 64 of Title 2C of the New Jersey Statutes. However, the distributed monies are to be used for law enforcement activities related to theft from a carrier.

7. (New section) The offenses of theft or unlawful taking of property from a carrier shall be deemed to have been committed not only in the county where the violation first occurred, but also in any county into which the defendant may have taken or been in possession of any money, baggage, goods or property of a carrier.

8. (New section) a. A person who knowingly maintains or operates any premises, place or facility used for the storage or resale of any property stolen from a carrier is guilty of a crime of the second degree.

b. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, the court may impose a fine not to exceed $250,000 or five times the retail value of the property stolen from the carrier seized at the time of the arrest, whichever is greater.

c. A person convicted of a second or subsequent offense under this section shall be sentenced to a term of imprisonment that shall include, unless the person is sentenced pursuant to the provisions of N.J.S.2C:43-7, a mandatory minimum term of one-third to one-half of the sentence imposed, or two years, whichever is greater, during which time the defendant shall not be eligible for parole. If the person is sentenced pursuant to N.J.S.2C:43-7, the court shall impose a minimum term of one-third to one-half of the sentence imposed, or three years, whichever is greater. The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section. For the purposes of this section an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to this section, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to this section.

9. This act shall take effect immediately.

STATEMENT

This bill adds a definition of "carrier" to the chapter on theft offenses and makes certain specific provisions for these type of theft offenses. The bill includes employees, agents or subcontractors of carriers within the definition of "fiduciary." The bill adds a presumption that property is stolen if the person is lacking proper documentation for the cargo, satisfactory explanation or other evidence of right to possession.

Under the bill, a person who commits theft from a carrier in breach of his obligation in his capacity as a fiduciary shall be convicted of a crime of the second degree. If, in the course of committing the theft, he attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the use of a deadly weapon, he is guilty of a crime of the first degree. As used in the bill, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury, he is guilty of a crime of the first degree.

In addition, the bill creates the second degree crimes of leader of a theft of carrier property network, maintaining or operating any premises, place or facility used for a carrier's stolen property and the first degree crime of leader of a theft of carrier property network, if the scheme or course of conduct to unlawfully take, dispose of, distribute, bring into or transport in this State property stolen from a carrier was conducted with the use or threatened use of any weapon. Upon conviction, the court may impose a fine equal to five times the value of the property seized at the time of arrest or $250,000 for a crime of the second degree and $500,000 for a crime of the first degree, whichever is greater.

The bill provides that a person convicted of a second or subsequent offense in breach of his obligation as a fiduciary, leader of theft of carrier property network, or maintaining or operating any premises, place or facility used for stolen property shall face certain mandatory minimum terms of imprisonment.

The bill also provides that a person convicted of theft or unlawful taking of property from a carrier shall be subject to a minimum term of imprisonment of not less than 120 days for the second offense and not less than 270 days for a third or subsequent offense. If the crime was conducted with the use or threatened use of any weapon, the person shall be subject to a minimum term of imprisonment of not less than 240 days for the second offense and not less than 540 for a third or subsequent offense.

In addition, a person convicted of theft or unlawful taking of property from a carrier, leader of a theft of carrier property network, or operating a facility for sale of stolen carrier property shall be subject to a $500 penalty for a first offense, a $1,000 penalty for a second offense, and a $2,000 penalty for a third or subsequent offense. If the offense involved the use or threatened use of a weapon, the person shall be subject to a $1,000 penalty for a first offense, a $2,000 penalty for a second offense, and a $4,000 penalty for a third or subsequent offense.

This bill is intended to discourage theft from carriers which has been a growing problem in this State as it has been in most other parts of this country. The FBI has estimated that over $6 billion worth of cargo is stolen in this country every year. The cost of this theft is borne by every citizen in the increased price we must pay for goods and transportation services. New Jersey is one of the busiest centers of commerce in this county. Our ports, our airports, our rail facilities, our roads and highways and the facilities serving our motor carrier industry have become key targets for such theft. This bill attempts to provide proper recourse against those responsible, especially the leaders of network organizations involved in such crimes and the employees of carriers who participate in such crimes.