2C:35A-4. Calculation of anti-drug profiteering penalty

2C:35A-4. Calculation of anti-drug profiteering penalty.

a. Where the prosecutor has established one or more grounds for imposing an Anti-Drug Profiteering Penalty pursuant to section 3 of this chapter, the court shall assess a monetary penalty as follows:

(1) $200,000.00 in the case of a crime of the first degree; $100,000.00 in the case of a crime of the second degree; $50,000.00 in the case of a crime of the third degree; $25,000.00 in the case of a crime of the fourth degree;

(2) an amount equal to three times the street value of all controlled dangerous substances or controlled substance analogs involved, or three times the market value of all drug paraphernalia involved, if this amount is greater than that provided in paragraph (1) of this subsection; or

(3) an amount equal to three times the value of any benefit illegally obtained by the actor for himself or another, or any injury to or benefit deprived of another.

b. When the court is for any reason unable to determine the amount of the penalty pursuant to paragraph (2) of subsection a., the court shall assess a penalty in the amount appropriate to the degree of the offense as provided in paragraph (1) of subsection a.

c. In determining the street value of the substance involved or the market value of drug paraphernalia involved, the court shall take into account all amounts of the substance or paraphernalia reasonably believed to have been involved in the course of the criminal activity in which the defendant knowingly participated, and it shall not be relevant for the purposes of this section that some of those amounts or paraphernalia were involved in acts or transactions which occurred, or which were intended to occur, in another jurisdiction.

d. Where the prosecution requests that the court assess a penalty in an amount calculated pursuant to paragraph (2) or (3) of subsection a., the prosecutor shall have the burden of establishing by a preponderance of the evidence the appropriate amount of the penalty to be assessed pursuant to that paragraph. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at trial, plea hearing or other court proceedings and shall also consider the presentence report and other relevant information, including expert opinion in the form of live testimony or by affidavit. The court's findings shall be incorporated in the record, and such findings shall not be subject to modification by an appellate court except upon a showing that the finding was totally lacking support in the record or was arbitrary and capricious.

L.1997, c.187, s.2; amended 1999, c.160, s.3.