Anti-Drug Profiteering

2C:35A-1. Short Title. This act shall be known and may be cited as the “Anti-Drug Profiteering Act.”

2C:44-4 was amended to permit a monetary penalty of three times the value of benefits illegally obtained

It applies to persons convicted of 2C:35-5 (distribution etc. of CDS) if the activity was a “substantial source of livelihood” or was distribution to a person who could be expected to distribute to others, or was distribution to three or more persons or on five or more occasions. The Bill Statement accompanying the statute expresses an intent that the penalty be applicable to “persons who deal large amounts of drugs for profit.” However, as a practical matter, most of the time when distribution or possession with intent to distribute is proved, the basis for the penalty can be proved as well. The penalties are mandatory if the basis is proved. See 2C:35A-4a and 2C:35A-5.

The amounts of the penalties are set forth in 2C:35A-4. By amendment in 1999, subsection a(3) was added, expanding the available means of calculation to include “an amount equal to three times the value of any benefit illegally obtained by the actor for himself or another, or any injury to or benefit deprived of another.”

The imposition of monetary penalties pursuant to this act is intended to serve as an adjunct to forfeiture actions.

2C:35A-3. Criteria for Imposition of Anti-Drug Profiteering Penalty.

1. except as may be provided by section 5 of this chapter, where a person has been convicted of a crime defined in chapter 35 or 36 of this Title or any crime involving criminal street gang related activity as defined in subsection h. of N.J.S.2C:44-3 or an attempt or conspiracy to commit such a crime, the court shall, upon the application of the prosecutor, sentence the person to pay a monetary penalty in an amount determined pursuant to section 4 of this chapter, provided the court finds at a hearing, which may occur at the time of sentencing, that the prosecutor has established by a preponderance of the evidence one or more of the grounds specified in this section. The findings of the court shall be incorporated in the record, and in making its findings, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings and shall also consider the presentence report and any other relevant information.
2. Any of the following shall constitute grounds for imposing an Anti-Drug Profiteering Penalty:

(1) The defendant was convicted of: (a) a violation of N.J.S.2C:35-3 (leader of narcotics trafficking network), or (b) a violation of subsection g. of N.J.S.2C:5-2 (leader of organized crime), or (c) an offense defined in chapter 41 of this Title (racketeering) which involved the manufacture, distribution, possession with intent to distribute or transportation of any controlled dangerous substance or controlled substance analog.

(2) The defendant is a drug profiteer. A defendant is a drug profiteer when the conduct constituting the crime shows that the person has knowingly engaged in the illegal manufacture, distribution or transportation of any controlled dangerous substance, controlled substance analog or drug paraphernalia as a substantial source of livelihood. In making its determination, the court may consider all of the attending circumstances, including but not limited to the defendant’s role in the criminal activity, the nature, amount and purity of the substance involved, the amount of cash or currency involved, the extent and accumulation of the defendant’s assets during the course of the criminal activity and the defendant’s net worth and his expenditures in relation to his legitimate sources of income.

(3) The defendant is a wholesale drug distributor. (a) A defendant is a wholesale drug distributor when the conduct constituting the crime involves the manufacture, distribution or intended or attempted distribution of a controlled dangerous substance or controlled substance analog to any other person for pecuniary gain, knowing, believing, or under circumstances where it reasonably could be assumed that such other person would in turn distribute the substance to another or others for pecuniary gain. It shall not be necessary for the prosecution to establish to whom the substance was distributed or intended or attempted to be distributed, and the court may draw all reasonable inferences from the nature of the defendant’s conduct and the substance involved that such other person, while not specifically identified, would in turn distribute the substance to another or others for pecuniary gain. In making its determination, the court shall consider all of the attending circumstances, including but not limited to the defendant’s role in the criminal activity, the nature, amount and purity of the substance involved, and the likelihood that a substance of such purity would be intended to be distributed directly to the ultimate consumer of the substance.

(b) Notwithstanding that the prosecutor has established that the defendant is a wholesale drug distributor within the meaning of this paragraph, the court shall not impose an anti-drug profiteering penalty on that ground if the defendant establishes by a preponderance of the evidence at the hearing that his participation in the conduct constituting the crime was limited solely to operating a conveyance used to transport a controlled dangerous substance or controlled substance analog, or loading or unloading the substance into such a conveyance or storage facility. Nothing in this paragraph shall be construed to establish a basis for not imposing a penalty where the prosecutor has established any other ground or grounds specified in this section for the imposition of an anti-drug profiteering penalty.

(4) The defendant is a professional drug distributor. A professional drug distributor is a person who has at any time, for pecuniary gain, unlawfully distributed a controlled dangerous substance, controlled substance analog or drug paraphernalia to three or more different persons, or on five or more separate occasions regardless of the number of persons to whom the substance or paraphernalia was distributed.

This section  (4) Is a very broad catchall applicable to almost anyone charged with a distribution related offense. It is a very rare case in which someone is charged with distribution without some available proof of five separate acts. Thus, under the law, a person is considered a “professional drug distributor” if they share marijuana with someone once a year over a five-year period. More information can be found on this in our blog, “Who’s the Dealer When Drugs Are Shared“. Note that the state need only prove five acts of distribution by a preponderance of the evidence for forfeiture purposes, as opposed to the proof beyond a reasonable doubt required for criminal conviction.

(5) The defendant was involved in criminal street gang related activity.

1. In making its determination, the court may rely upon expert opinion in the form of live testimony or by affidavit, or by such other means as the court deems appropriate.
2. For the purposes of this chapter, an act is undertaken for pecuniary gain if it involves or contemplates the transfer of anything of value in exchange for a controlled dangerous substance, controlled substance analog or drug paraphernalia, provided that the thing of value received or intended to be received in exchange for the substance or paraphernalia is or was reasonably believed to be of a higher value than that expended by the defendant or by any other person with whom the actor is acting in concert, to acquire or manufacture the substance or paraphernalia. It shall also include any act which would constitute a violation of subsection a. of N.J.S.2C:35-5, N.J.S.2C:35-11, N.J.S.2C:36-3 or any other crime for which the actor was paid or expected to be paid in return for performing such act, or from which the actor received a benefit for himself or another or injured another or deprived another of a benefit. There shall be a rebuttable presumption at the hearing that any manufacturing, distribution or possession with intent to distribute which contemplates or involves the payment or exchange of anything of value constitutes an act undertaken for pecuniary gain. It shall not be necessary for the prosecution to establish that any intended profit or payment was actually received; nor shall it be relevant that the act, payment in return for such act or the transfer of anything of value in exchange for the substance or paraphernalia, occurred or was intended to occur in another jurisdiction.

2C:35A-4. Calculation of Anti-Drug Profiteering Penalty. a. Where the prosecutor has established one or more grounds for imposing an Anti-Drug Profiteering Penalty pursuant to section 3 of this chapter, the court shall assess a monetary penalty as follows:

(1) $200,000.00 in the case of a crime of the first degree; $100,000.00 in the case of a crime of the second degree; $50,000.00 in the case of a crime of the third degree; $25,000.00 in the case of a crime of the fourth degree;

(2) an amount equal to three times the street value of all controlled dangerous substances or controlled substance analogs involved, or three times the market value of all drug paraphernalia involved, if this amount is greater than that provided in paragraph (1) of this subsection; or

(3) an amount equal to three times the value of any benefit illegally obtained by the actor for himself or another, or any injury to or benefit deprived of another.

Subsection (1) will be the controlling penalty schedule in most cases since a criminal conviction establishes a per se dollar amount.   Moreover, it maximizes the State’s profits since the figures are almost always going to be higher than anything the State can otherwise prove regarding street value.

1. When the court is for any reason unable to determine the amount of the penalty pursuant to paragraph (2) of subsection a., the court shall assess a penalty in the amount appropriate to the degree of the offense as provided in paragraph (1) of subsection a.
2. In determining the street value of the substance involved or the market value of drug paraphernalia involved, the court shall take into account all amounts of the substance or paraphernalia reasonably believed to have been involved in the course of the criminal activity in which the defendant knowingly participated, and it shall not be relevant for the purposes of this section that some of those amounts or paraphernalia were involved in acts or transactions which occurred, or which were intended to occur, in another jurisdiction.
3. Where the prosecution requests that the court assess a penalty in an amount calculated pursuant to paragraph (2) or (3) of subsection a., the prosecutor shall have the burden of establishing by a preponderance of the evidence the appropriate amount of the penalty to be assessed pursuant to that paragraph. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at trial, plea hearing or other court proceedings and shall also consider the presentence report and other relevant information, including expert opinion in the form of live testimony or by affidavit. The court’s findings shall be incorporated in the record, and such findings shall not be subject to modification by an appellate court except upon a showing that the finding was totally lacking support in the record or was arbitrary and capricious.

2C:35A-5. Revocation or Reduction of Penalty Assessment. The court shall not revoke or reduce a penalty imposed pursuant to this chapter except in accordance with the provisions of N.J.S.2C:35-12. An anti-drug profiteering penalty imposed pursuant to this chapter shall not be deemed a fine for purposes of N.J.S.2C:46-3.

2C:35A-6. Payment Schedule. The court may, for good cause shown, and subject to the provisions of this section, grant permission for the payment of a penalty assessed pursuant to this chapter to be made within a specified period of time or in specified installments, provided however that the payment schedule fixed by the court shall require the defendant to pay the penalty in the shortest period of time consistent with the nature and extent of his assets and his ability to pay , and further provided that the prosecutor shall be afforded the opportunity to present evidence or information concerning the nature, extent and location of the defendant’s assets or interests in property which are or might be subject to levy and execution. In such event, the court may only grant permission for the payment to be made within a specified period of time or installments with respect to that portion of the assessed penalty which would not be satisfied by the liquidation of property which is or may be subject to levy and execution, unless the court finds that the immediate liquidation of such property would result in undue hardship to innocent persons. If no permission to make payment within a specified period of time or in installments is embodied in the sentence, the entire penalty shall be payable forthwith.

This section is very important.  In most cases, the defendant will not have the assets available to pay the fine.  Without consideration of a defendant’s ability to pay, the statute might be unconstitutional.  Still, without an effective attorney advocating for a lesser fine, most courts will impose the fines without considering ability to pay.

2C:35A-7. Relation to Other Dispositions.

A defendant shall not be entitled to receive credit toward the payment of a penalty imposed pursuant to this chapter for the value of property forfeited, or subject to forfeiture, pursuant to the provisions of chapters 41 and 64 of this Title.

2C:35A-8. Collection and Distribution. All penalties assessed pursuant to this chapter shall be docketed and collected as provided for collection of fines, penalties and restitution in chapter 46 of this Title. The Attorney General or prosecutor may prosecute an action to collect penalties imposed pursuant to this chapter. All penalties assessed pursuant to this chapter shall be disposed of, distributed, appropriated and used as if the collected penalties were the proceeds of property forfeited pursuant to chapter 64 of this Title.