GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

S                                                                                                                                                     2

SENATE BILL 1358

Judiciary I (Civil) Committee Substitute Adopted 7/10/07

 

 

 

Short Title:     Street Gang Prevention Act.

(Public)

Sponsors:

 

Referred to:

 

March 26, 2007

A BILL TO BE ENTITLED

AN ACT To enact the North Carolina street gang prevention act.

The General Assembly of North Carolina enacts:

SECTION 1.(a)  Chapter 14 of the General Statutes is amended by adding a new Article to read:

"Article 13A.

"North Carolina Street Gang Prevention Act.

" 14-50.15.  Short title.

This Article shall be known and may be cited as the "North Carolina Street Gang Prevention Act".

" 14-50.16.  Definitions.

The following definitions apply in this Article:

(1)       'Criminal street gang' or 'street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more felony offenses, or delinquent acts that would be felonies if committed by an adult, which has a common name, common identifying sign or symbol, and has three or more members individually or collectively engaged in, or who have engaged in, criminal street gang activity.

(2)       'Criminal street gang activity' means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit an act or acts, with the specific intent that such act or acts were intended or committed for the purpose, or in furtherance, of the person's involvement in a criminal street gang or street gang. An act or acts are included if accompanied by the necessary mens rea or criminal intent, and would be chargeable by indictment under the following laws of this State:

a.         Any offense under Article 5 of Chapter 90 of the General Statutes (Controlled Substances Act).

b.         Any offense under Chapter 14 of the General Statutes except Articles 9, 22A, 38, 40, 43, 46, 47, 59 thereof; and further excepting G.S. 14-78.1, 14-82, 14-86, 14-145, 14-179, 14-183, 14-184, 14-186, 14-190.9, 14-195, 14-197, 14-201, 14-247, 14-248, 14-313 thereof.

(3)       'Pattern of criminal street gang activity' means engaging in, and having a conviction for, at least two prior incidents of criminal street gang activity, as defined in subdivision (2) of this section, that have the same or similar purposes, results, accomplices, victims, or methods of commission or otherwise are interrelated by common characteristics and are not isolated and unrelated incidents, provided that at least one of these offenses occurred after December 1, 2007, and the last of the offenses occurred within three years, excluding any periods of imprisonment, of prior criminal street gang activity. Any offenses committed by a defendant prior to indictment for an offense based upon a pattern of street gang activity shall not be used as the basis for any subsequent indictments for offenses involving a pattern of street gang activity.

" 14-50.17.  Participation in criminal street gang activity prohibited.

(a)       It is unlawful for any person employed by or associated with a criminal street gang to conduct or participate in a pattern of criminal gang activity.

(b)       It is unlawful for any person to acquire or maintain, directly or indirectly, through a pattern of criminal gang activity or proceeds derived therefrom, any interest in or control of any real or personal property of any nature, including money.

(c)       It is unlawful for any person who acts as an organizer, supervisor, or in any other position of management with regard to a criminal street gang to engage in, directly or indirectly, or conspire to engage in, a pattern of criminal gang activity.

(d)       It is unlawful for any person to cause, encourage, solicit, or coerce another to participate in criminal street gang activity.

(e)       It is unlawful for any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or to any associate or relative of the other person with the intent to deter the person from assisting a member or associate of a criminal street gang to withdraw from such criminal street gang.

(f)        It is unlawful for any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or to any associate or relative of the other person with the intent to punish or retaliate against the person for having withdrawn from a criminal street gang.

(g)       Any person who violates

(1)       Subsection (c) of this section: or

(2)       Subsection (d) of this section where the person caused, encouraged, solicited, or coerced to participate in criminal street gang activity is under 16 years old,

shall be guilty of a Class F felony. Any person who violates any other provision of this section shall be guilty of a Class H felony.

(h)       Any crime committed in violation of this section shall be considered a separate offense.

" 14-50.18.  Enhanced offense for criminal gang activity.

A person who is convicted of a misdemeanor offense that is committed for the benefit of, at the direction of, or in association with, any criminal street gang, is guilty of an offense that is one class higher than the offense committed. A Class A1 misdemeanor shall be enhanced to a Class I felony under this section.

" 14-50.19.  Reports of disposition; criminal street gang activity.

When a defendant is found guilty of a criminal offense other than an offense under G.S. 14-50.17 or G.S. 14-50.18, the presiding judge shall determine whether the offense involved criminal street gang activity. If the judge so determines, then the judge shall indicate on the form reflecting the judgment that the offense involved criminal street gang activity. The clerk of court shall ensure that the official record of the defendant's conviction includes a notation of the court's determination.

" 14-50.20.  Contraband, seizure, and forfeiture.

(a)       All property of every kind used or intended for use in the course of, derived from, or realized through criminal street gang activity or a pattern of criminal street gang activity is subject to the seizure and forfeiture provisions of G.S. 14-2.3.

(b)       In any action under this section, the court may enter a restraining order in connection with any interest that is subject to forfeiture.

(c)       Innocent Activities. - The provisions of this section shall not apply to property used for criminal street gang activity, where the owner or person who has legal possession of the property does not have actual knowledge that the property is being used for criminal street gang activity.

" 14-50.21.  Local ordinances not preempted by State law.

Nothing in this Article shall prevent a local governing body from adopting and enforcing ordinances relating to gangs and gang violence that are consistent with this Article. Where local laws duplicate or supplement the provisions of this Article, this Article shall be construed as providing alternative remedies and not as preempting the field.

" 14-50.22.  Real property used by criminal street gangs declared a public nuisance; abatement.

(a)       Public Nuisance. - Any real property that is erected, established, maintained, owned, leased, or used by any criminal street gang for the purpose of conducting criminal street gang activity shall constitute a public nuisance and may be abated as provided by Article 1 of Chapter 19 of the General Statutes.

(b)       Innocent Activities. - The provisions of this section shall not apply to real property used for criminal street gang activity, where the owner or person who has legal possession of the real property does not have actual knowledge that the real property is being used for criminal street gang activity.

" 14-50.23.  Matters proved in criminal trial court.

A conviction of an offense defined as criminal gang activity shall preclude the defendant from contesting any factual matters determined in the criminal proceeding in any subsequent civil action or proceeding based on the same conduct.

" 14-50.24.  Applicability to juveniles under the age of 16.

The provisions of this Article shall not apply to juveniles under the age of 16.

" 14-50.25.  Conditional discharge and expunction of records for first offense.

(a)       A person who is convicted of an offense under G.S. 14-50.17 or G.S. 14-50.18, and who:

(1)       Has not been previously convicted of any criminal offense; and

(2)       Was age 16 or 17 at the time of the offense

may apply to the court for a deferral of proceedings without entry of judgment, and for placement on supervised probation upon such reasonable terms and conditions as the court may require. If the court, in its discretion, defers proceedings pursuant to this section, it shall place the defendant on supervised probation for not less than one year, in addition to any other conditions. Prior to taking any action to discharge and dismiss under this section, the court shall make a finding that the defendant has no previous criminal convictions.

(b)       Upon fulfillment of the terms and conditions of the probation provided for in subsection (a) of this section, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person.

(c)       Disposition of a case to determine discharge and dismissal under this section at the district court division of the General Court of Justice shall be final for the purpose of appeal.

(d)       Upon violation of a term or condition of the probation provided for in subsection (a), the court may enter an adjudication of guilt and proceed as otherwise provided.

(e)       Upon discharge and dismissal pursuant to subsection (b) of this section, the person may apply for an order to expunge the complete record of the proceedings resulting in the dismissal and discharge, pursuant to the procedures and requirements set forth in G.S. 90-96(b), (c), and (f).

(f)        A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of sixty-five dollars ($65.00) at the time the petition is filed. Fees collected under this subsection shall be deposited in the General Fund. This subsection does not apply to petitions filed by an indigent.

(g)       This section is supplemental and in addition to existing law and shall not be construed so as to repeal any existing provision contained in the General Statutes of North Carolina."

SECTION 1.(b)  G.S. 14-34.1(b) reads as rewritten:

"(b)      A person who willfully or wantonly discharges a weapon described in subsection (a) of this section from a vehicle towards a person, or into an occupied dwelling or into any occupied vehicle, aircraft, watercraft, or other conveyance that is in operation is guilty of a Class D felony."

SECTION 1.(c)  G.S. 14-2.3 reads as rewritten:

" 14-2.3.  Forfeiture of gain acquired through felonies.criminal activity.

(a)       Except as is otherwise provided in Article 3 of Chapter 31A, in the case of any violation of Article 13A of Chapter 14, or a general statute constituting a felony other than a nonwillful homicide, any money or other property or interest in property acquired thereby shall be forfeited to the State of North Carolina, including any profits, gain, remuneration, or compensation directly or indirectly collected by or accruing to any felon.offender.

(b)       An action to recover such property shall be brought by either a District Attorney or the Attorney General pursuant to G.S. 1-532. The action must be brought within three years from the date of the conviction for the felony.offense.

(c)       Nothing in this section shall be construed to require forfeiture of any money or property recovered by law-enforcement officers pursuant to the investigation of a felony an offense when the money or property is readily identifiable by the owner or guardian of the property or is traceable to him."

SECTION 2.  G.S. 15A-533 reads as rewritten:

" 15A-533.  Right to pretrial release in capital and noncapital cases.

(a)       A defendant charged with any crime, whether capital or noncapital, who is alleged to have committed this crime while still residing in or subsequent to his escape or during an unauthorized absence from involuntary commitment in a mental health facility designated or licensed by the Department of Health and Human Services, and whose commitment is determined to be still valid by the judge or judicial officer authorized to determine pretrial release to be valid, has no right to pretrial release. In lieu of pretrial release, however, the individual shall be returned to the treatment facility in which he was residing at the time of the alleged crime or from which he escaped or absented himself for continuation of his treatment pending the additional proceedings on the criminal offense.

(b)       A defendant charged with a noncapital offense must have conditions of pretrial release determined, in accordance with G.S. 15A-534.

(c)       A judge may determine in his discretion whether a defendant charged with a capital offense may be released before trial. If he determines release is warranted, the judge must authorize release of the defendant in accordance with G.S. 15A-534.

(d)       Subject to rebuttal by the person, it shall be presumed There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community if a judicial official finds the following:

(1)       There is reasonable cause to believe that the person committed an offense involving trafficking in a controlled substance;

(2)       The drug trafficking offense was committed while the person was on pretrial release for another offense; and

(3)       The person has been previously convicted of a Class A through E felony or an offense involving trafficking in a controlled substance and not more than five years has elapsed since the date of conviction or the person's release from prison for the offense, whichever is later.

(e)       There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community, if a judicial official finds the following:

(1)       There is reasonable cause to believe that the person committed an offense for the benefit of, at the direction of, or in association with, any criminal street gang, as defined in G.S. 14-50.17;

(2)       The offense described in subdivision (1) of this subsection was committed while the person was on pretrial release for another offense; and

(3)       The person has been previously convicted of an offense described in G.S. 14-50.17, and not more than five years has elapsed since the date of conviction or the person's release for the offense, whichever is later.

Such person Persons who are considered for bond under the provisions of subsections (d) and (e) of this section may only be released by a district or superior court judge upon a finding that there is a reasonable assurance that the person will appear and release does not pose an unreasonable risk of harm to the community."

SECTION 3.  There is appropriated to the Department of Crime Control and Public Safety, Governor's Crime Commission, the sum of three million dollars ($3,000,000) for the 2007-2008 fiscal year to be used to provide grants for street gang violence prevention, intervention, and suppression programs.

The Governor's Crime Commission shall develop the criteria for eligibility for these funds. The criteria shall include a matching requirement of twenty-five percent (25%), one-half of which may be in in-kind contributions, and presentation of a written plan for the services to be provided by the funds. Funds shall be available to public and private entities or agencies for juvenile or adult programs that meet the criteria established by the Governor's Crime Commission.

The Governor's Crime Commission shall report to the Chairs of the House of Representatives and Senate Appropriations Committees and the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety by April 15, 2008, on this program.  The report shall include all of the following:

(1)       The grant award process.

(2)       A description of each grant awarded.

(3)       The performance criteria for evaluating grant programs.

(4)       A list of State grants awarded in the 2007 grant cycle.

SECTION 4.  Section 3 of this act becomes effective July 1, 2007.  This section of the act is effective when it becomes law.  The remainder of this act becomes effective December 1, 2007, and applies to offenses committed on or after that date.