New Jersey Section 2C:33-29 – Crime of gang criminality

New Jersey’s Law Against Gang Criminality

New Jersey has passed strict laws to crack down on gang activity and organized crime. One of the key laws is Section 2C:33-29, which makes it a crime to engage in gang criminality. This law defines what constitutes a criminal street gang and sets forth grading and penalties for gang criminality offenses.

What is a Criminal Street Gang?

Section 2C:33-29 defines a criminal street gang as three or more persons who are associated in fact and who individually or in combination have committed certain criminal offenses within the past five years.

To be considered associated in fact, two of the following criteria that indicate gang membership must apply:

• Self-proclamation as a gang member
• Witness testimony or official statement identifying the individual as a gang member
• Written or electronic correspondence indicating gang membership
• Paraphernalia, photographs, or clothing showing gang affiliation
• Tattoos demonstrating membership
• Any other evidence of gang activity

In addition, the group must have engaged in criminal activity such as robbery, assault, arson, burglary, or drug trafficking. The law requires more than just an association – the group of individuals must be involved in an ongoing pattern of criminal conduct.

Crime of Gang Criminality

Under Section 2C:33-29, a person commits the crime of gang criminality if they knowingly engage in criminal street gang activity and commit, attempt to commit, or conspire to commit specified offenses such as robbery, assault, sexual assault, arson, burglary, extortion, or drug distribution.

The crime can be committed as a principal or accomplice. It is considered gang criminality if the crime was done to benefit or was directed by a criminal street gang.

Even conspiring or attempting to commit one of the enumerated offenses constitutes gang criminality. The law casts a wide net to capture gang-related criminal activity.

Grading of Gang Criminality

Gang criminality is generally graded one degree higher than the most serious underlying offense. For example, if the most serious underlying crime was a 2nd degree offense, gang criminality would be graded as a 1st degree crime.

There is an exception – if the underlying offense is already a 1st degree crime, gang criminality remains a 1st degree offense. But the sentence is enhanced to a mandatory minimum prison term of 15-30 years.

Sentences for gang criminality must run consecutive to (after) any sentence received for the underlying offense. So gang crimes result in significantly longer prison terms.

Recruiting Minors and Sentencing Enhancements

There are further sentencing enhancements if the crime involves recruiting or coercing minors under 18 into joining a gang. This is considered an automatic 2nd degree offense.

Likewise, committing gang criminality while detained or incarcerated elevates the crime to 2nd degree status. Sentences must run consecutive to the term for the original offense.

Defenses to Gang Criminality Charges

Because gang criminality charges can result in lengthy mandatory minimum sentences, the stakes are high for defendants. An experienced criminal defense attorney can raise legal and factual defenses to challenge these allegations.

• Contesting gang membership: Defendants may argue there is insufficient evidence to prove they were affiliated with a criminal street gang. Gang indicators like tattoos, clothing, and associations can be ambiguous.
• No underlying criminal activity: The prosecution has to establish the defendant committed or conspired to commit specific criminal offenses. The defense can dispute whether any criminal conduct occurred.
• Duress or coercion: Defendants, especially juveniles, may claim they were forced into gang activity through threats or peer pressure. This can negate the knowing mental state required.
• Mistake of fact: Defendants may assert they were unaware other members of the group were involved in criminal conduct, negating the “knowledge” requirement.
• False accusations: Witnesses or informants may falsely allege gang ties due to biases or to gain leniency in their own cases.
• Illegal police conduct: If the police violated the defendant’s rights through improper stops, searches, or coercive interrogations, evidence may be suppressed.