ASSEMBLY APPROPRIATIONS COMMITTEE

STATEMENT TO

[First Reprint]

ASSEMBLY, No. 4755

with committee amendments

STATE OF NEW JERSEY

DATED:  FEBRUARY 20, 2025

      The Assembly Appropriations Committee reports favorably and with committee amendments Assembly Bill No. 4755 (1R).

      As amended and reported, this bill makes various changes to State law related to retail theft.  The bill upgrades certain crimes related to retail theft, permits certain defendants to be sentenced to extended terms of imprisonment, and establishes a retail theft unit in the Department of Law and Public Safety (DLPS).

Assault

      As amended, the bill establishes that it is aggravated assault to assault an employee of a store or other retail mercantile establishment.

      Aggravated assault of an employee of a retail mercantile establishment is a crime of the third degree if the victim suffers bodily injury; otherwise, it is a crime of the fourth degree.  A third degree crime is punishable by three to five years imprisonment, a fine of up to $15,000, or both.  A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.

Tax Evasion

      As amended, the bill establishes a second degree crime if any portion of a tax, fee, penalty, or interest, or any part thereof required to be paid or turned over was accrued through conduct as a leader of an organized retail theft enterprise, otherwise it is a crime of the third degree.  Relatedly, as amended, the bill clarifies that a person is guilty of the second degree crime if the taxes the person failed to turn over to the Director of the Division of Taxation were collected or withheld as part of an organized retail theft enterprise.

      A second degree crime is punishable by five to 10 years imprisonment, a fine of up to $150,000, or both.

Persistent Offender

      The bill provides that a person may be sentenced to an extended term of imprisonment for repeat convictions related to retail theft.

      Under the bill, a person is a persistent offender if the person has previously been convicted on two or more prior and separate occasions of receiving stolen property, shoplifting, or being a leader of an organized retail theft enterprise; or theft that involves the stealing of merchandise, regardless of the dates of the convictions.  A persistent offender may be sentenced to an extended term, upon motion of the prosecutor, if the prior conviction was for a crime committed on a separate occasion and the crime for which the person is being sentenced was committed either: (1) within 10 years of the date of the defendant’s last release from confinement for the commission of any crime; or (2) within 10 years of the date of the commission of the most recent violation of a crime established in the bill for which the defendant has a prior conviction.

Retail Theft Aggregation

      As amended, the bill provides the value of the merchandise involved in a violation or in multiple violations may be aggregated.  As amended, the bill provides that the value of merchandise involved in a violation of the shoplifting statute may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons regardless of the time period over which the scheme or course of conduct took place, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.

Fencing

      The bill updates the fencing statute, section 7 of P.L.1981, c.167 (C.2C:20-7.1), to clarify that the statute also applies to online sales of stolen goods.

Fostering Stolen Property

      The bill also separately establishes the offense of fostering the sale of stolen property.  The offense is a disorderly persons offense.

      As amended, a person commits an offense under the bill when the person, acting alone or in concert with another person or persons, advertises or otherwise assists, by any means, including through personal contact or through the use of an online platform or any other communications channel or medium in the sale of property of another knowing that is has been stolen or reasonably believing that it is stolen.

      As amended, the bill establishes two presumptions that are available in the prosecution of an offense of fostering the sale of stolen property.  First, proof of the property being advertised for sale at a price substantially below its fair market value, unless satisfactorily explained, gives rise to an inference that the person advertising or otherwise assisting in the sale of the property knew that it is stolen or reasonably believed that the property is stolen; and second, proof that a person advertised or otherwise assisted in the sale of the property without having ascertained by reasonable inquiry that the person offering the property for sale had a legal right to possess or control it gives rise to an inference that such person knew that it is stolen or reasonably believed that it is stolen.

      A disorderly persons offense is punishable by up to six months imprisonment, a fine of up to $1,000, or both.

Gift Card Fraud

      As amended, the bill imposes certain packaging and consumer notice requirements for the sale of gift cards and requires the Division of Consumer Affairs (DCA) in DLPS to create a notice related to gift card fraud for dissemination in locations which sell gift cards.

      The bill prohibits a retail mercantile establishment from knowingly selling gift cards to a consumer unless the establishment conspicuously displays the notice provided by the DCA and the packaging of the gift card meets certain requirements in the bill.  As amended, the bill requires that gift cards, if enclosed in packaging, be sealed in a manner that is not easily opened, removed, or replaced without signs of tampering, and requires that all activation codes or bar codes be concealed.  As amended, the bill allows a retail mercantile establishment to sell gift cards that do not conform to the packaging requirements if the gift card is chip-enabled and activated only after the consumer registers the card on the card issuer’s website, or the gift card is sold only for use at that retail mercantile establishment and the card inventory is secured, or the gift card incorporates certain anti-tampering or anti-fraud technology.

      Further, the bill establishes requirements as it relates to third-party gift card resellers.  The bill defines “third-party gift card reseller” as a merchant who, without authorization from or affiliation with the business entity issuing the gift card, is engaged in the business of: (1) buying gift cards on behalf of consumers; or (2) reselling gift cards to consumers.  These resellers are subject to certain record maintenance requirements.

      A retail mercantile establishment that violates the provisions of section 1 of P.L.2021, c.431 (C.56:8-110.1) or the provisions of the bill related to gift card fraud is subject to a civil penalty of $1,000.

Organized Retail Theft Unit

      Finally, as amended, the bill requires the Attorney General to undertake steps as the Attorney General deems appropriate to promote the effective investigation, prosecution, and deterrence of organized retail theft in this State, which may include establishing a unit, task force, or other appropriate office or initiative to combat organized retail theft.  As amended, the bill also provides that the Attorney General may implement a statewide policy to direct and coordinate State and local law enforcement efforts to investigate and prosecute organized retail theft.

      The unit, and the Division of Criminal Justice, will have the authority to (1) investigate and, if warranted, prosecute cases concerning acts of retail theft; and (2) assist county prosecutors in the investigation and prosecution of acts of retail theft.

COMMITTEE AMENDMENTS:

      The committee amended the bill to:

- Remove all references to “open- or closed-loop gift cards”;

- Clarify that the definitions that apply to gift card fraud violations also apply to the Consumer Fraud Act;

- Clarify the provisions concerning gift card packaging and security requirements for retail sellers;

- Remove the appropriation to the Department of Law and Public Safety;

- Change the effective date of sections 9 and 10, instead of sections 10 and 11, to make those sections inoperable until October 1, 2025;

- Change the effective date of section 6, instead of section 7, to make that section take effect on the 180th day after the date of enactment; and

- Make technical corrections.

FISCAL IMPACT:

      The Office of Legislative Services (OLS) concludes that establishing and upgrading certain crimes related to retail theft and sentencing certain defendants to extended prison terms may result in an indeterminate annual increase in State and local expenditures and revenues.  The OLS lacks sufficient information to quantify the fiscal impact, as it is not possible to estimate the number of crimes likely to be committed under the provisions of this bill or how many persistent offenders will be sentenced to extended prison terms.

      The OLS finds that the following State and local agencies may incur caseload and expenditure increases: a) the Department of Law and Public Safety may have to prosecute additional cases; b) county prosecutors may also have to prosecute additional cases; c) the Judiciary may have to adjudicate additional complaints and monitor additional probationers; d) the Office of the Public Defender may have to represent additional low income defendants; e) the Department of Corrections may have to house and care for additional offenders for routine and extended prison sentences; and f) the State Parole Board may have to supervise the return to society of additional offenders.  In addition, the Department of Law and Public Safety may establish a special unit or task force to combat retail theft.

      The OLS notes that the State may receive indeterminate revenues from regular and enhanced fines imposed on individuals convicted of these crimes; however, the State’s ability to collect fines has historically been limited.

      The bill establishes the offense of fostering the sale of stolen property as a disorderly persons offense.  Annual local expenditures and revenues are likely to increase as disorderly persons offenses are adjudicated in municipal courts and defendants are sentenced to county jails.  Generally, a presumption of non-incarceration applies to first time offenders. Annual municipal revenue would likely increase due to an increase in court filing fees and penalties from these disorderly persons cases.