Eliminates presumption of non-imprisonment for theft of a firearm.

A4394

ASSEMBLY, No. 4394

STATE OF NEW JERSEY

222nd LEGISLATURE

�

INTRODUCED FEBRUARY 19, 2026

Sponsored by:

Assemblyman� JAY WEBBER

District 26 (Morris and Passaic)

SYNOPSIS

���� Eliminates presumption of non-imprisonment for theft
of a firearm.

CURRENT VERSION OF TEXT

���� As introduced.

��

An Act
concerning theft of a firearm and amending
N.J.S.2C:20-2 and N.J.S.2C:44-1.

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

���� 1.��� N.J.S.2C:20-2 is amended
to read as follows:

���� 2C:20-2.���� a.� Consolidation
of Theft and Computer Criminal Activity Offenses.� Conduct denominated theft or
computer criminal activity in this chapter constitutes a single offense, but
each episode or transaction may be the subject of a separate prosecution and
conviction.� A charge of theft or computer criminal activity may be supported
by evidence that it was committed in any manner that would be theft or computer
criminal activity under this chapter, notwithstanding the specification of a
different manner in the indictment or accusation, subject only to the power of
the court to ensure fair trial by granting a bill of particulars, discovery, a
continuance, or other appropriate relief where the conduct of the defense would
be prejudiced by lack of fair notice or by surprise.

���� b.��� Grading of theft
offenses.

���� (1) Theft constitutes a crime
of the second degree if:

���� (a) The amount involved is
$75,000 or more;

���� (b) The property is taken by
extortion;

���� (c) The property stolen is a
controlled dangerous substance or controlled substance analog as defined in
N.J.S.2C:35-2 and the quantity is in excess of one kilogram;

���� (d) The property stolen is a
person's benefits under federal or State law, or from any other source, which
the Department of Human Services or an agency acting on its behalf has budgeted
for the person's health care and the amount involved is $75,000 or more;

���� (e) The property stolen is
human remains or any part thereof; except that, if the human remains are stolen
by deception or falsification of a document by which a gift of all or part of a
human body may be made pursuant to P.L.2008, c.50 (C.26:6-77 et al.), the theft
constitutes a crime of the first degree; or

���� (f) It is in breach of an
obligation by a person in his capacity as a fiduciary and the amount involved
is $50,000 or more.

���� (2) Theft constitutes a crime
of the third degree if:

���� (a) The amount involved
exceeds $500 but is less than $75,000;

���� (b) The property stolen is a
firearm, vessel, boat, horse, domestic companion animal or airplane
except
the presumption of non-imprisonment set forth in subsection e. of N.J.S.2C:44-1
for a first offense of a crime of the third degree shall not apply to theft of
a firearm
;

���� (c) The property stolen is a
controlled dangerous substance or controlled substance analog as defined in
N.J.S.2C:35-2 and the amount involved is less than $75,000 or is undetermined
and the quantity is one kilogram or less;

���� (d) It is from the person of
the victim;

���� (e) It is in breach of an
obligation by a person in his capacity as a fiduciary and the amount involved
is less than $50,000;

���� (f) It is by threat not
amounting to extortion;

���� (g) It is of a public record,
writing or instrument kept, filed or deposited according to law with or in the
keeping of any public office or public servant;

���� (h) The property stolen is a
person's benefits under federal or State law, or from any other source, which
the Department of Human Services or an agency acting on its behalf has budgeted
for the person's health care and the amount involved is less than $75,000;

���� (i) The property stolen is any
real or personal property related to, necessary for, or derived from research,
regardless of value, including, but not limited to, any sample, specimens and
components thereof, research subject, including any warm-blooded or
cold-blooded animals being used for research or intended for use in research,
supplies, records, data or test results, prototypes or equipment, as well as
any proprietary information or other type of information related to research;

���� (j) The property stolen is a
New Jersey Prescription Blank as referred to in
[
R.S.45:14-14
]
section 20
of P.L.2003, c.280 (C.45:14-59)
;

���� (k) The property stolen
consists of an access device or a defaced access device;

���� (l) The property stolen
consists of anhydrous ammonia and the actor intends it to be used to
manufacture methamphetamine; or

���� (m) The property stolen
consists of a package delivered to a residential property by a cargo carrier
and the amount involved is less than $75,000 or is undetermined.

���� (3) Theft constitutes a crime
of the fourth degree if the amount involved is at least $200 but does not
exceed $500.

���� (4) Theft constitutes a
disorderly persons offense if:

���� (a) The amount involved was
less than $200; or

���� (b) The property stolen is an
electronic vehicle identification system transponder.

���� The amount involved in a theft
or computer criminal activity shall be determined by the trier of fact.� The
amount shall include, but shall not be limited to, the amount of any State tax
avoided, evaded or otherwise unpaid, improperly retained or disposed of.�
Amounts involved in thefts, thefts of motor vehicles, or computer criminal
activities committed pursuant to one scheme or course of conduct, whether from
the same person or several persons, may be aggregated in determining the grade
of the offense.

���� c.���� Claim of right.� It is
an affirmative defense to prosecution for theft that the actor:

���� (1) Was unaware that the
property or service was that of another;

���� (2) Acted under an honest
claim of right to the property or service involved or that he had a right to
acquire or dispose of it as he did; or

���� (3) Took property exposed for
sale, intending to purchase and pay for it promptly, or reasonably believing
that the owner, if present, would have consented.

���� d.��� Theft from spouse.� It
is no defense that theft or computer criminal activity was from or committed
against the actor's spouse, except that misappropriation of household and
personal effects, or other property normally accessible to both spouses, is
theft or computer criminal activity only if it occurs after the parties have
ceased living together.

(cf: P.L.2023, c.101, s.4)

���� 2.��� N.J.S.2C:44-1 is amended
to read as follows:

���� 2C:44-1.� Criteria for
withholding or imposing sentences of imprisonment.

���� 2C:44-1.� a.� In determining
the appropriate sentence to be imposed on a person who has been convicted of an
offense, the court shall consider the following aggravating circumstances:

���� (1) The nature and
circumstances of the offense, and the role of the actor in committing the
offense, including whether or not it was committed in an especially heinous,
cruel, or depraved manner;

���� (2) The gravity and
seriousness of harm inflicted on the victim, including whether or not the
defendant knew or reasonably should have known that the victim of the offense
was particularly vulnerable or incapable of resistance due to advanced age,
ill-health, or extreme youth, or was for any other reason substantially
incapable of exercising normal physical or mental power of resistance;

���� (3) The risk that the
defendant will commit another offense;

���� (4) A lesser sentence will
depreciate the seriousness of the defendant's offense because it involved a
breach of the public trust under chapters 27 and 30 of this title, or the
defendant took advantage of a position of trust or confidence to commit the offense;

���� (5) There is a substantial
likelihood that the defendant is involved in organized criminal activity;

���� (6) The extent of the
defendant's prior criminal record and the seriousness of the offenses of which
the defendant has been convicted;

���� (7) The defendant committed
the offense pursuant to an agreement to either pay or be paid for the
commission of the offense and the pecuniary incentive was beyond that inherent
in the offense itself;

���� (8) The defendant committed
the offense against a police or other law enforcement officer, correctional
employee or firefighter, acting in the performance of the officer, employee, or
firefighter duties while in uniform or exhibiting evidence of his authority;
the defendant committed the offense because of the status of the victim as a
public servant; the defendant committed the offense against a sports official,
athletic coach or manager, acting in or immediately following the performance
of the person's duties or because of the person's status as a sports official,
coach or manager; or the defendant committed the offense against any health
care professional, volunteer working for a health care professional or working
at a health care facility, supportive services staff member working for a
health care professional or working at a health care facility, or employee of a
health care professional or health care facility, while the health care
professional, volunteer, supportive services staff member, or employee is
performing official duties.

���� For the purposes of this
paragraph, "health care facility" and "health care
professional" mean the same as those terms are defined in subsection b. of
section 3 of P.L.2023, c.48 (C.2C:12-3.1);

���� (9) The need for deterring the
defendant and others from violating the law;

���� (10) The offense involved
fraudulent or deceptive practices committed against any department or division
of State government;

���� (11) The imposition of a fine,
penalty, or order of restitution without also imposing a term of imprisonment
would be perceived by the defendant or others merely as part of the cost of
doing business, or as an acceptable contingent business or operating expense
associated with the initial decision to resort to unlawful practices;

���� (12) The defendant committed
the offense against a person who the defendant knew or should have known was 60
years of age or older, or disabled;

���� (13) The defendant, while in
the course of committing or attempting to commit the crime, including the
immediate flight therefrom, used or was in possession of a stolen motor
vehicle;

���� (14) The offense involved an
act of domestic violence, as that term is defined in subsection a. of section 3
of P.L.1991, c.261 (C.2C:25-19), committed in the presence of a child under 16
years of age; and

���� (15) The offense involved an
act of domestic violence, as that term is defined in subsection a. of section 3
of P.L.1991, c.261 (C.2C:25-19) and the defendant committed at least one act of
domestic violence on more than one occasion.

���� b.��� In determining the
appropriate sentence to be imposed on a person who has been convicted of an
offense, the court may properly consider the following mitigating
circumstances:

���� (1) The defendant's conduct
neither caused nor threatened serious harm;

���� (2) The defendant did not
contemplate that the defendant's conduct would cause or threaten serious harm;

���� (3) The defendant acted under
a strong provocation;

���� (4) There were substantial
grounds tending to excuse or justify the defendant's conduct, though failing to
establish a defense;

���� (5) The victim of the
defendant's conduct induced or facilitated its commission;

���� (6) The defendant has
compensated or will compensate the victim of the defendant's conduct for the
damage or injury that the victim sustained, or will participate in a program of
community service;

���� (7) The defendant has no
history of prior delinquency or criminal activity or has led a law-abiding life
for a substantial period of time before the commission of the present offense;

���� (8) The defendant's conduct
was the result of circumstances unlikely to recur;

���� (9) The character and attitude
of the defendant indicate that the defendant is unlikely to commit another
offense;

���� (10) The defendant is
particularly likely to respond affirmatively to probationary treatment;

���� (11) The imprisonment of the
defendant would entail excessive hardship to the defendant or the defendant's
dependents;

���� (12) The willingness of the
defendant to cooperate with law enforcement authorities;

���� (13) The conduct of a youthful
defendant was substantially influenced by another person more mature than the
defendant; and

���� (14) The defendant was under
26 years of age at the time of the commission of the offense.�

���� c. (1) A plea of guilty by a
defendant or failure to so plead shall not be considered in withholding or
imposing a sentence of imprisonment.

���� (2) When imposing a sentence
of imprisonment the court shall consider the defendant's eligibility for
release under the law governing parole, including time credits awarded pursuant
to Title 30 of the Revised Statutes, in determining the appropriate term of
imprisonment.

���� d.��� Presumption of
imprisonment.� The court shall deal with a person who has been convicted of a
crime of the first or second degree, or a crime of the third degree where the
court finds that the aggravating factor in paragraph (5), (14), or (15) of
subsection a. of this section applies, by imposing a sentence of imprisonment
unless, having regard to the character and condition of the defendant, it is of
the opinion that the defendant's imprisonment would be a serious injustice
which overrides the need to deter such conduct by others.� Notwithstanding the
provisions of subsection e. of this section, the court shall deal with a person
who has been convicted of theft of a motor vehicle or of the unlawful taking of
a motor vehicle and who has previously been convicted of either offense by
imposing a sentence of imprisonment unless, having regard to the character and
condition of the defendant, it is of the opinion that imprisonment would be a
serious injustice which overrides the need to deter such conduct by others.

���� e.���� The court shall deal
with a person convicted of an offense other than a crime of the first or second
degree, who has not previously been convicted of an offense, without imposing a
sentence of imprisonment unless, having regard to the nature and circumstances
of the offense and the history, character, and condition of the defendant, it
is of the opinion that imprisonment is necessary for the protection of the
public under the criteria set forth in subsection a. of this section, except
that this subsection shall not apply if the court finds that the aggravating
factor in paragraph (5), (14) or (15) of subsection a. of this section applies
or if the person is convicted of any of the following crimes of the third
degree: theft of a motor vehicle;
theft of a firearm;
unlawful taking of
a motor vehicle; eluding; strict liability vehicular homicide pursuant to
section 1 of P.L.2017, c.165 (C.2C:11-5.3); if the person is convicted of a
crime of the third degree constituting use of a false government document in
violation of subsection c. of section 1 of P.L.1983, c.565 (C.2C:21-2.1); if
the person is convicted of a crime of the third degree constituting
distribution, manufacture or possession of an item containing personal
identifying information in violation of subsection b. of section 6 of P.L.2003,
c.184 (C.2C:21-17.3); if the person is convicted of a crime of the third or
fourth degree constituting bias intimidation in violation of N.J.S.2C:16-1; if
the person is convicted of a crime of the third degree under paragraph (12) of
subsection b. of N.J.S.2C:12-1 or section 2 of P.L.1997, c.111 (C.2C:12-1.1);
or if the person is convicted of a crime of the third or fourth degree under
the provisions of section 1 or 2 of P.L.2007, c.341 (C.2C:33-29 or C.2C:33-30).

���� f.���� Presumptive Sentences.
(1) Except for the crime of murder, unless the preponderance of aggravating or
mitigating factors, as set forth in subsections a. and b. of this section,
weighs in favor of a higher or lower term within the limits provided in N.J.S.2C:43-6,
when a court determines that a sentence of imprisonment is warranted, it shall
impose sentence as follows:

���� (a) To a term of 20 years for
aggravated manslaughter or kidnapping pursuant to paragraph (1) of subsection
c. of N.J.S.2C:13-1 when the offense constitutes a crime of the first degree;

���� (b) Except as provided in
subparagraph (a) of this paragraph to a term of 15 years for a crime of the
first degree;

���� (c) To a term of seven years
for a crime of the second degree;

���� (d) To a term of four years
for a crime of the third degree; and

���� (e) To a term of nine months
for a crime of the fourth degree.

���� In imposing a minimum term
pursuant to subsection b. of N.J.S.2C:43-6, the sentencing court shall
specifically place on the record the aggravating factors set forth in this
section which justify the imposition of a minimum term.

���� Unless the preponderance of
mitigating factors set forth in subsection b. weighs in favor of a lower term
within the limits authorized, sentences imposed pursuant to paragraph (1) of
subsection a. of N.J.S.2C:43-7 shall have a presumptive term of life imprisonment.�
Unless the preponderance of aggravating and mitigating factors set forth in
subsections a. and b. of this section weighs in favor of a higher or lower term
within the limits authorized, sentences imposed pursuant to paragraph (2) of
subsection a. of N.J.S.2C:43-7 shall have a presumptive term of 50 years'
imprisonment; sentences imposed pursuant to paragraph (3) of subsection a. of
N.J.S.2C:43-7 shall have a presumptive term of 15 years' imprisonment; and
sentences imposed pursuant to paragraph (4) of subsection a. of N.J.S.2C:43-7
shall have a presumptive term of seven years' imprisonment.

���� In imposing a minimum term
pursuant to subsection b. of N.J.S.2C:43-7, the sentencing court shall
specifically place on the record the aggravating factors set forth in this
section which justify the imposition of a minimum term.

���� (2) In cases of convictions
for crimes of the first or second degree where the court is clearly convinced
that the mitigating factors substantially outweigh the aggravating factors and
where the interest of justice demands, the court may sentence the defendant to
a term appropriate to a crime of one degree lower than that of the crime for
which the defendant was convicted.� If the court does impose sentence pursuant
to this paragraph, or if the court imposes a noncustodial or probationary
sentence upon conviction for a crime of the first or second degree, the
sentence shall not become final for 10 days in order to permit the appeal of
the sentence by the prosecution.

���� g.��� Imposition of
Noncustodial Sentences in Certain Cases.� If the court, in considering the
aggravating factors set forth in subsection a. of this section, finds the
aggravating factor in paragraph (2), (5), (10), or (12) of subsection a. of
this section and does not impose a custodial sentence, the court shall
specifically place on the record the mitigating factors which justify the
imposition of a noncustodial sentence.

���� h.��� Except as provided in
section 2 of P.L.1993, c.123 (C.2C:43-11), the presumption of imprisonment as
provided in subsection d. of this section shall not preclude the admission of a
person to the Intensive Supervision Program, established pursuant to the Rules
Governing the Courts of the State of New Jersey.

(cf: P.L.2023, c.48, s.2)

���� 3.��� This act shall take
effect immediately.

STATEMENT

���� This bill provides that the
presumption of non-imprisonment for certain third and fourth degree crimes does
not apply to a person convicted of theft of a firearm.

���� Under current law, theft of a
firearm is a third degree crime, which is punishable by a term of imprisonment
of three to five years, a fine of up to $15,000, or both.�

���� Current law provides that
there is a presumption of non-imprisonment for most first-time offenders of
third and fourth degree crimes.� Therefore, a first-time offender is typically
sentenced to a term of probation, rather than a term of imprisonment upon
conviction.�

���� This bill expands the list of
crimes to which the presumption of non-imprisonment does not apply to include
theft of a firearm.