Dog Fighting Statutes (Part 4)

The dogfighting “Leader” statute continues:

(2) The court may prohibit any convicted person from having future possession or custody of any animal for any period of time the court deems reasonable, including a permanent prohibition.

c. Notwithstanding the provisions of 2C:1-8, a conviction of leader of a dog fighting network shall not merge with the conviction for any offense, nor shall such other conviction merge with a conviction under this section, which is the object of the conspiracy. Nothing contained in this section shall prohibit the court from imposing an extended term pursuant to 2C:43-7; nor shall this section be construed in any way to preclude or limit the prosecution or conviction of any person for conspiracy under 2C:5-2, or any prosecution or conviction under 2C:41-1 (racketeering activities) or subsection g. of 2C:5-2 (leader of organized crime) or any prosecution or conviction for any such offense.

d. It shall not be necessary in any prosecution under this section 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 attendant 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, or the amount of cash or currency involved.

e. It shall not be a defense to a prosecution under this section that the dog intended to be used for fighting was brought into or transported in this State solely for ultimate distribution or sale in another jurisdiction.

f. It shall not be a defense that the defendant was subject to the supervision or management of another, nor that another person or persons were also leaders of a dog fighting network.

A separation of powers issue is presented when the Legislature drafts “shall not merge” provisions into a statute. A merger analysis is typically reserved for the trial court, i.e. the Judicial Branch as opposed to the Legislative Branch.