Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Monday, October 17, 2011

Racketeering

Racketeering

2C:41-1. Definitions.

For purposes of this section and N.J.S.2C:41-2 through N.J.S.2C:41-6:

a."Racketeering activity" means (1) any of the following crimes which are crimes under the laws of New Jersey or are equivalent crimes under the laws of any other jurisdiction:

(a)murder

(b)kidnapping

(c)gambling

(d)promoting prostitution

(e)obscenity

(f)robbery

(g)bribery

(h)extortion

(i)criminal usury

(j)violations of Title 33 of the Revised Statutes

(k)violations of Title 54A of the New Jersey Statutes and Title 54 of the Revised Statutes

(l)arson

(m) burglary

(n)theft and all crimes defined in chapter 20 of Title 2C of the New Jersey Statutes

(o)forgery and fraudulent practices and all crimes defined in chapter 21 of Title 2C of the New Jersey Statutes

(p)fraud in the offering, sale or purchase of securities

(q)alteration of motor vehicle identification numbers

(r)unlawful manufacture, purchase, use or transfer of firearms

(s)unlawful possession or use of destructive devices or explosives

(t)violation of sections 112 through 116 inclusive of the "Casino Control Act," P.L.1977, c.110 (C.5:12-112 through 5:12-116)

(u)violation of N.J.S.2C:35-4, N.J.S.2C:35-5 or N.J.S.2C:35-6 and all crimes involving illegal distribution of a controlled dangerous substance or controlled substance analog, except possession of less than one ounce of marijuana

(v)violation of subsection b. of N.J.S.2C:24-4 except for subparagraph (b) of paragraph (5) of subsection b.

(w) violation of section 1 of P.L.1995, c.405 (C.2C:39-16), leader of firearms trafficking network

(x)violation of section 1 of P.L.1983, c.229 (C.2C:39-14), weapons training for illegal activities

(y)violation of section 2 of P.L.2002, c.26 (C.2C:38-2), terrorism.

(z)violation of section 1 of P.L.2005,c.77 (C.2C:13-8), human trafficking.

(2)any conduct defined as "racketeering activity" under Title 18, U.S.C.s.1961(1)(A), (B) and (D).

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

c."Enterprise" includes any individual, sole proprietorship, partnership, corporation, business or charitable trust, association, or other legal entity, 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.

d."Pattern of racketeering activity" requires

(1)Engaging in at least two incidents of racketeering conduct one of which shall have occurred after the effective date of this act and the last of which shall have occurred within 10 years (excluding any period of imprisonment) after a prior incident of racketeering activity; and

(2)A showing that the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants or victims or methods of commission or are otherwise interrelated by distinguishing characteristics and are not isolated incidents.

e."Unlawful debt" means a debt

(1)Which was incurred or contracted in gambling activity which was in violation of the law of the United States, a state or political subdivision thereof; or

(2)Which is unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury.

f."Documentary material" includes any book, paper, document, writing, drawing, graph, chart, photograph, phonorecord, magnetic or recording or video tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into useable form or other tangible item.

g."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.

h."Trade or commerce" shall include all economic activity involving or relating to any commodity or service.

L.1981, c.167, s.2; amended 1987, c.106, s.7; 1995, c.110; 1999, c.25, s.5; 2002, c.26, s.18; 2005, c.77, s.3.

2C:41-1.1. Declaration of policy and legislative findings
The Legislature hereby finds and declares to be the public policy of this State, the following:

a. By enactment of the "Criminal Justice Act of 1970," P.L.1970, c. 74 (C. 52:17B-97 et seq.), the Legislature recognized that the existence of organized crime and organized crime type activities presents a serious threat to the political, social and economic institutions of this State.

b. Despite the impressive gains of our law enforcement agencies, organized crime and similar activities in this State are still a highly sophisticated, diversified and widespread activity that annually drains millions of dollars from this State's economy by unlawful conduct and the illegal use of force, fraud and corruption. In recent years, that organized crime and organized criminal type activity has spread to the operation of otherwise legitimate businesses.

c. In order to safeguard the public interest, effective criminal and civil sanctions are needed to prevent, disrupt and eliminate the infiltration of organized crime type activities which are substantial in nature into the legitimate trade or commerce of this State. It is, therefore, in the public interest to provide that activity which is inimical to the general health, welfare and prosperity of the State and its inhabitants be made subject to strict civil and criminal sanctions.

L.1981, c. 167, s. 1, eff. June 15, 1981.

2C:41-2. Prohibited activities
a. It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which he has participated as a principal within the meaning of N.J.S. 2C:2-6 to use or invest, directly or indirectly, any part of the income, or the proceeds of the income, in acquisition of any interest in, or the establishment or operation of any enterprise which is engaged in or the activities of which affect trade or commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer or of assisting another to do so, shall not be unlawful under this section, provided that the sum total of the securities of the issuer held by the purchaser, the members of his family, and his or their accomplices in any pattern of racketeering activity or in the collection of an unlawful debt does not amount in the aggregate to 1% of the outstanding securities of any one class, or does not, either in law or in fact, empower the holders thereof to elect one or more directors of the issuer, provided further, that if, in any proceeding involving an alleged investment in violation of this section, it is established that over half of the defendant's aggregate income for a period of 2 or more years immediately preceding the investment was derived from a pattern of racketeering activity, a rebuttable presumption shall arise that the investment included income derived from a pattern of racketeering activity.

b. It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in or activities of which affect trade or commerce.

c. It shall be unlawful for any person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

d. It shall be unlawful for any person to conspire as defined by N.J.S. 2C:5-2, to violate any of the provisions of this section.

2C:41-3. Criminal penalties.

a.Any person who violates any provision of N.J.S.2C:41-2 in connection with a pattern of racketeering activity which involves a crime of violence, a crime of the first degree or the use of firearms shall be guilty of a crime of the first degree. All other violations of N.J.S.2C:41-2 shall be crimes of the second degree.

b.In addition, such persons shall forfeit to the entity funding the prosecuting agency involved the following:

(1)Any interest including money or anything of value he has acquired or maintained in violation of this chapter and

(2)Any interest in, security of, claim against, or property or contractual right of any kind affording a source of influence over any enterprise which he has established, acquired, maintained, operated, controlled, conducted, or participated in the conduct of, in violation of this chapter.

c.In any action brought by the Attorney General under this section, the Superior Court shall have jurisdiction to enter such restraining orders or prohibitions, or to take such other actions, including, but not limited to, the acceptance of satisfactory performance bonds, in connection with any property or other interests subject to forfeiture under this section, as it shall deem proper.

d.Upon conviction of a person under this section, the court shall authorize the Attorney General to seize all property or other interest declared forfeited under this section, subject to the rights of innocent persons such as any prior lienholders or other valid lienholders, upon such other terms and conditions as the court shall deem proper. If a property right or other interest is not exercisable or transferable for value by the Attorney General, it shall expire, and shall not revert to the convicted person.

e.The Attorney General shall dispose of all such property as soon as commercially feasible, making due provision for the rights of innocent persons.

f.When an offense charged may result in a criminal forfeiture, the indictment shall allege the extent of the interest or property subject to forfeiture. If the indictment alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.

L.1981, c.167, s.2; amended 1999, c.25, s.6.

2C:41-4. Civil remedies
a. The Superior Court, making due provision for the rights of innocent persons, shall have jurisdiction to prevent and restrain the acts or conduct which constitute violations of N.J.S. 2C:41-2, by issuing appropriate orders, including, but not limited to:

(1) Ordering any person to divest himself of any interest, direct or indirect, in any enterprise;

(2) Imposing reasonable restrictions on the future activities or investments of any person, including but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise found to be in violation of N.J.S. 2C:41-2;

(3) Ordering the dissolution or reorganization of any enterprise;

(4) Ordering the denial, suspension or revocation of the charter of any corporation organized under the laws of this State and to deny, suspend or revoke the license of any foreign corporation authorized to do business in the State of New Jersey;

(5) Ordering the denial, suspension or revocation of the license or permit granted to any enterprise by any department or agency of the State of New Jersey;

(6) Entering a cease and desist order which specifies the acts or conduct which is to be discontinued, altered or implemented by any person;

(7) Ordering the restitution of any moneys or property unlawfully obtained or retained by any person found to be in violation of N.J.S. 2C:41-2;

(8) Assessing civil monetary penalties against any person who has violated N.J.S. 2C:41-2 to deter future violations, provided that the court shall, upon making a finding on the record as to the gain any such person has acquired or maintained through the violation, assess such penalties in an amount not to exceed three times the amount of the gain; and

(9) Ordering any person to forfeit to the State any interest he has acquired or maintained in violation of this chapter and any interest in, security of, claim against, or property or contractual right of any kind affording a source of influence over any enterprises he has established, operated, controlled, conducted, or participated in the conduct of, in violation of this chapter. Forfeiture under this subsection shall be in accordance with chapter 64 of Title 2C of the New Jersey Statutes. The interest which shall be subject to forfeiture shall be as defined by this section and as defined by N.J.S. 2C:64-1a.;

(10) Imposing any or all of the foregoing sanctions in combination with each other.

b. The Attorney General may institute proceedings in Superior Court for violations of N.J.S. 2C:41-2. In any action brought under this section, the court shall proceed as soon as practicable to the hearing and determination thereof. Pending final determination thereof, the court may at any time enter restraining orders or prohibitions, or take other actions, including the acceptance of satisfactory performance bonds, as it shall deem proper.

c. Any person damaged in his business or property by reason of a violation of N.J.S. 2C:41-2 may sue therefor in any appropriate court and shall recover threefold any damages he sustains and the cost of the suit, including a reasonable attorney's fee, costs of investigation and litigation.

d. A final judgment rendered in favor of the State in any criminal proceeding brought under this chapter shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding.

L.1981, c. 167, s. 2, eff. June 15, 1981.

2C:41-5. Investigative interrogatories
a. Whenever the Attorney General determines that there exists a reasonable suspicion that any person or enterprise may have information or be in possession, custody, or control of any documentary materials relevant to an investigation under this chapter, or whenever the Attorney General believes it to be in the public interest that an investigation be made pursuant to this chapter, he may, prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon the person, an investigative interrogatory requiring him to answer and produce material for examination.

b. Each interrogatory shall:

(1) State the nature of the conduct constituting the alleged violation which is under investigation and the provision of law applicable thereto;

(2) Advise the person that he has the right to discuss the interrogatory with legal counsel prior to returning it to the Attorney General or prior to making material available as provided hereinafter in subsection f. and that he has the right to file in Superior Court a petition to modify or set aside the interrogatory pursuant to subsection j. hereinafter;

(3) Describe the class or classes of documentary material to be produced thereunder with such specificity and certainty as to permit the material to be fairly identified;

(4) Prescribe a return date which will provide a reasonable period of time within which answers may be made and material so demanded may be assembled and made available for inspection and copying or reproduction as provided hereinafter in subsection f.

c. No interrogatory shall:

(1) Contain any requirement which would be held to be unreasonable if contained in a subpoena duces tecum issued in aid of a grand jury investigation; or

(2) Require the production of any documentary evidence which would be otherwise privileged from disclosure if demanded by a subpoena duces tecum issued in aid of a grand jury investigation.

d. Service of any interrogatory filed under this section may be made upon a person by:

(1) Delivering a duly executed copy thereof to any partner, executive officer, managing agent, or general agent thereof, or to any agent thereof authorized by appointment or by law to receive service of process on behalf of the person, or upon any individual person; or

(2) Delivering a duly executed copy thereof to the principal office or place of business of the person to be served; or

(3) Depositing a copy in the United States mail, by registered or certified mail duly addressed to the person at his principal office or place of business.

e. A verified return by the individual serving any interrogatory, setting forth the manner of service shall be prima facie proof of service. In the case of service by registered or certified mail, the return shall be accompanied by the return post office receipt of delivery of the interrogatory.

f. Any person upon whom any interrogatory issued under this section has been duly served which requires the production of materials shall make the material available for inspection and copying or reproduction to the Attorney General at the principal place of business of that person in the State of New Jersey or at such other place as the Attorney General and the person thereafter may agree and prescribe in writing, on the return date specified in the interrogatory or on a later date as the Attorney General may prescribe in writing. Upon written agreement between the person and the Attorney General, copies may be substituted for all or any part of the original materials. The Attorney General may cause the preparation of any copies of documentary material as may be required for official use by the Attorney General.

No material produced pursuant to this section shall be available for examination, without the consent of the person who produced the material, by an individual other than the Attorney General or any person retained by the Attorney General in connection with the enforcement of this act. Under reasonable terms and conditions as the Attorney General shall prescribe, documentary material while in his possession shall be available for examination by the person who produced the material or any duly authorized representatives of the person.

In any case or proceeding involving any alleged violation of this chapter, the Attorney General may present before any court or Grand Jury, any such documentary material in his possession pursuant to this section subject to any protective order deemed proper by the Superior Court.

Any person who shall disclose to any person other than the Attorney General or a person retained by the Attorney General as set forth above, the name of any person who receives an investigative interrogatory or any information obtained pursuant thereto, except in proceedings involving an alleged violation of this chapter and except as so directed by the Attorney General shall be guilty of a crime of the fourth degree.

g. Upon completion of:

(1) The review and investigation for which any documentary material was produced under this section, and

(2) Any case or proceeding arising from the investigation, the Attorney General shall return to the person who produced the material all the material other than copies thereof made by the Attorney General pursuant to this section which has not passed into the control of any court or grand jury through the introduction thereof into the record of the case or proceeding.

h. When any documentary material has been produced by any person under this section for use in any racketeering investigation, and no case or proceeding arising therefrom has been instituted within 2 years after completion of the examination and analysis of all evidence assembled in the course of the investigation, the person shall be entitled, upon written demand made upon the Attorney General, to the return of all documentary material other than copies thereof made pursuant to this section so produced by the person.

i. Whenever any person fails to comply with any investigative interrogatory duly served upon him under this section or whenever satisfactory copying or reproduction of any material cannot be done and the person refuses to surrender the material, the Attorney General may file in the Superior Court a petition for an order of the court for the enforcement of this section.

j. At any time before the return date specified in the interrogatory, such person may file in the Superior Court a petition for an order modifying or setting aside the interrogatory. The time allowed for compliance of the interrogatory, in whole or in part as deemed proper and ordered by the court, shall not run during the pendency of such petition in the court. The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the interrogatory to comply with the provisions of this section or upon any constitutional or other legal right or privilege of the petitioner. In such proceeding the Attorney General shall establish the existence of an investigation pursuant to this chapter and the nature and subject matter of the investigation.

2C:41-6. Liberal construction
The provisions of subsections a., c., d., e., and h. of 2C:41-1; 2C:41-2; subsections b., c., d., e., and f. of 2C:41-3; and 2C:41-4 shall be liberally construed to effectuate the remedial purposes of this chapter.

L.1981, c. 167, s. 2, eff. June 15, 1981.

2C:41-6.1. Remedies cumulative
The remedies provided in this act shall be cumulative with each other and other remedies at law.

L.1981, c. 167, s. 11, eff. June 15, 1981.

2C:41-6.2. Severability
If any one or more sections, clauses, sentences or parts of this act shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.