New Jersey-2020-S1750-Introduced

An Act concerning relief from criminal and other proceedings pertaining to actual or alleged violations of law committed by a person while a victim of human trafficking, and amending P.L.2013, c.51.

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

1. Section 10 of P.L.2013, c.51 (C.2C:44-1.1) is amended to read as follows:

10. a. (1) A person convicted of [N.J.S.2C:34-1, prostitution and related offenses, or section 3 of P.L.1997, c.93 (C.2C:34-1.1), loitering for the purpose of engaging in prostitution, or a similar local ordinance,] an offense or other violation of law committed as a result of the person's status as a victim of human trafficking as described in section 1 of P.L.2005, c.77 (C.2C:13-8) or 22 U.S.C. s.7102, and which offense was committed as a result of the trafficking scheme or other course of conduct in violation of either of those acts that resulted in the person's victimization, or committed at the direction of an organizer, supervisor, financier, or manager of that scheme or other course of conduct as described in paragraph (2) of subsection a. of section 1 of P.L.2005, c.77 (C.2C:13-8), may file an application with the Superior Court in accordance with the Rules of Court to have [the] each conviction, finding of guilt, or, in the case of an offense committed while a juvenile, adjudication of delinquency vacated at any time following entry of a judgment of conviction, [when the person's participation in the offense was a result of having been a victim of human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8) or as defined in paragraph (14) of 22 U.S.C. s.7102] finding of guilt, or adjudication of delinquency. The application shall be made to the Superior Court in the county in which the most recent disposition was adjudged, and may include any other prior disposition which the person is seeking to be vacated, regardless of where that prior disposition occurred.

(2) [Notwithstanding any law to the contrary] In the same application filed pursuant to paragraph (1) of this subsection, the person may also [in the same application] seek an order for the expungement of any reference to the person's arrest, charge, complaint, conviction, adjudication of delinquency, or other disposition, and any proceeding [for prostitution] related thereto in any records in the custody of a court, or law enforcement or correctional agency entitled to be served with the application pursuant to subsection b. of this section, as well as an order for the expungement of the person's DNA record and other identifiable information from the State DNA database in accordance with section 9 of P.L.1994, c.136 (C.53:1-20.25).

b. (1) (a) An application made to the Superior Court under this section and all associated supporting documents filed with the application shall remain under seal and kept confidential, and shall not be disseminated or disclosed, in whole or in part, except to another court, or a law enforcement or correctional agency as set forth in this subparagraph. The application, together with a copy of all supporting documents, shall be served pursuant to the Rules of Court upon: the Attorney General; the county prosecutor of the county wherein the court is located; the Superintendent of State Police; the chief of police or other executive head of the police department of the municipality wherein [the] each offense or other violation of law was committed or alleged to have been committed; the chief law enforcement officer of any other law enforcement agency of this State that participated in the arrest of the person; the superintendent or warden of any institution in which the person was confined; and, if a disposition was made in municipal court, upon the judge of that court. [Any of the noticed parties herein may make an appearance or file a submission responding to the person's application.] Each recipient of the application and supporting documents shall keep them confidential, shall only use them in a manner consistent with and in furtherance of the purpose for which they were received, and shall not further disseminate or disclose them, in whole or in part, to any party outside of the parties set forth in this subparagraph.

(b) Unless a party given notice pursuant to subparagraph (a) of this paragraph files an objection to the application and requests a hearing within 45 days of the date of receipt of the application, the application shall be deemed unopposed and the court may grant the relief sought in accordance with subsections c. and d. of this section. Any objection filed by a noticed party shall not be deemed determinative, and the court may grant relief over any party's objection.

(2) [The application shall be made and heard within a reasonable time after] With respect to any court appearance by the person [has ceased to be a victim of human trafficking or has sought services for being a victim of human trafficking, whichever occurs later, subject to reasonable concerns for the safety of the person, family members of the person, or other victims of human trafficking that may be jeopardized by the bringing of] concerning the application, [or for other reasons consistent with the purposes of this paragraph] if required, the court shall, consistent with the Rules of Court, permit the person to enter an appearance by telephone, video link as approved by the Administrative Office of the Courts, or other approved means of audio or audio and visual communication, unless there is a compelling reason to so deny.

c. (1) The court may vacate [a] any conviction, finding of guilt, or adjudication of delinquency pursuant to this section if it finds by a preponderance of the evidence that the person was a victim of human trafficking [pursuant to] as described in section 1 of P.L.2005, c.77 (C.2C:13-8) or [as defined in paragraph (14) of] 22 U.S.C. s.7102 [at the time of the offense], and that the offense or other violation of law to be vacated was a result of the person having been a victim of human trafficking.

(2) In making a determination:

(a) evidence documenting the person's status as a victim of human trafficking [at the time of the offense] from a federal, state, or local governmental agency shall create a rebuttable presumption that the person's participation in the offense was a result of having been a victim, but shall not be required to vacate a conviction under this section; and

(b) the court may additionally consider other evidence it deems appropriate in determining whether the person was a victim of human trafficking, including, but not limited to:

(i) certified records of federal or State court proceedings which demonstrate that the defendant was a victim of a trafficker charged with a human trafficking offense under section 1 of P.L.2005, c.77 (C.2C:13-8) or chapter 77 of Title 18 of the United States Code;

(ii) certified records of approval notices or law enforcement certifications generated from a federal immigration proceeding available to victims of human trafficking; and

(iii) testimony or a sworn statement from a trained professional staff member of a victim services organization, an attorney, a member of the clergy or a health care or other professional from whom the person has sought assistance in addressing the trauma associated with being a victim of human trafficking.

d. (1) If the court finds, pursuant to subsection c. of this section, that the person was a victim of human trafficking, it shall enter an order vacating the conviction, finding of guilt, or adjudication of delinquency, which indicates the disposition to be vacated due to a substantive defect in the underlying proceedings that resulted in the disposition, and directing that all court records be revised accordingly. When the person's application also seeks an order for expungement, the court order shall require that any court, law enforcement and correctional [agencies, and other] agency noticed [parties] pursuant to subsection b. of this section expunge all references to the person's arrest, charge, complaint, conviction, adjudication of delinquency, or other disposition, and any related proceedings [for the violation of N.J.S.2C:34-1, prostitution and related offenses, or section 3 of P.L.1997, c.93 (C.2C:34-1.1), loitering for the purpose of engaging in prostitution, or a similar local ordinance] from all records in their custody that relate to the vacated conviction or other disposition, and in the case of an order concerning the expungement of the person's DNA record and other identifiable information from the State DNA database, the order shall require the Division of State Police in the Department of Law and Public Safety to purge this information in accordance with section 9 of P.L.1994, c.136 (C.53:1-20.25). An expungement ordered pursuant to this section shall have the same force as an expungement ordered pursuant to N.J.S.2C:52-1 et seq. and section 9 of P.L.1994, c.136 (C.53:1-20.25), as applicable.

e. A court that grants relief pursuant to this section may take any additional action as appropriate under the circumstances to carry out the purposes of this section.

(cf: P.L.2013, c.51, s.10)

2. This act shall take effect on the first day of the fourth month next following enactment, except the Attorney General and Administrative Director of the Courts may take any anticipatory administrative action in advance thereof as shall be necessary for the implementation of the act.

STATEMENT

This bill would provide a process for a person to vacate and expunge, as applicable, all arrests, charges, complaints, convictions, or other dispositions, as well as DNA records, for actual or alleged violations of law committed by the person as a result of having been a victim of human trafficking. Under current law, a victim can make an application to the Superior Court for an order to vacate and expunge convictions and related records only for violations of N.J.S.2C:34-1, prostitution and related offenses, or section 3 of P.L.1997, c.93 (C.2C:34-1.1), loitering for the purpose of engaging in prostitution, or a similar local ordinance. The bill would remove this limitation on qualifying convictions and instead provide that all convictions and other dispositions for violations of law committed while a person was a victim of human trafficking, as well as the person's DNA record and other identifiable information from the State DNA database, may be vacated and expunged, as applicable.

Under the bill, the application would be made to the Superior Court in the county in which the most recent disposition was adjudged, and could include any other prior disposition which the person is seeking to be vacated, regardless of where that prior disposition occurred. An application, and all associated supporting documents filed therewith, would remain under seal and kept confidential, and would not be disseminated or disclosed except to the following parties, who would be noticed with copies of the filing: the Attorney General; the county prosecutor of the county wherein the court is located; the Superintendent of State Police; the chief of police or other executive head of the police department of the municipality wherein each offense or other violation of law was committed or alleged to have been committed; the chief law enforcement officer of any other law enforcement agency of this State that participated in the arrest of the person; the superintendent or warden of any institution in which the person was confined; and, if a disposition was made in municipal court, upon the judge of that court. These parties, in turn, would also have a duty to keep the application and supporting documents confidential.

Unless one of the above noticed parties filed an objection to the application and requested a hearing within 45 days of the date of receipt of the application, the application would be deemed unopposed and the court could grant the relief sought. If the person seeking relief was required to make a court appearance concerning the application, the court would be required, consistent with the Rules of Court, to permit the person to enter an appearance by telephone, video link as approved by the Administrative Office of the Courts, or other approved means of audio or audio and visual communication, unless there was a compelling reason to so deny.

If the Superior Court found that a person was a victim of human trafficking, it would be required to enter an order vacating each conviction or other disposition. The order would indicate that the conviction or other disposition was vacated due to a substantive defect in the underlying proceedings that resulted in such disposition, and direct that all court records be revised accordingly. Concerning any expungement request with the application, the court order would require that any court, law enforcement and correctional agency which received a copy of the application expunge all references to the victim's arrest, charge, complaint, conviction, or other disposition and any related proceedings from records relating to each vacated conviction or other disposition; and in the case of an order concerning the expungement of the person's DNA record and other identifiable information from the State DNA database, the order would additionally require the Division of State Police in the Department of Law and Public Safety to purge this information.