cdTOCtest

F. Sentencing

State v. Megargel, 143 N.J. 484, 503 (1996); State v.
Matarama, 306 N.J. Super. 6, 24-25 (App. Div. 1997),
certif. denied, 153 N.J. 50 (1998); State v. Ellis, 280 N.J.
Super. 533, 552-53 (App. Div. 1995). The ordinary
term of imprisonment for a first-degree kidnapping is
fifteen to thirty years, with a presumptive of twenty years.
N.J.S.A. 2C:44-1f(1)(a).

II. CRIMINAL RESTRAINT AND RELATED

OFFENSES

A. Criminal Restraint

An individual is guilty of criminal restraint, a crime
of the third degree, if he or she restrains another
unlawfully in circumstances exposing the other to the risk
of serious bodily, or if he or she holds another in a
condition of involuntary servitude. N.J.S.A. 2C:13-2.

State v. Marchand, 227 N.J. Super. 92 (App. Div.
1988), aff’d o.b, 114 N.J. 569 (1989), relying on United
States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101
L.Ed.2d 788 (1988), construed N.J.S.A. 2C:13-2b
(knowingly holding another in a condition of involuntary
servitude) as requiring the State to prove “compulsion of
services by the use or threatened use of physical or legal
coercion.” The statutory language “The creation by the
actor of circumstances resulting in a belief by another that
he must remain in a particular location shall for purposes
of this section be deemed to be a holding in a condition
of involuntary servitude” only expands and clarifies what
is involuntary; servitude must still be proved by the State.

State v. Worthy, 329 N.J. Super. 109 (App. Div.
2000), held that the requisite mental state of “knowing”
applies to all material elements of the offense of criminal
restraint, N.J.S.A. 2C:13-2a, and the jury charge must
make this clear to the jury. Thus, the State has to prove
beyond a reasonable doubt that the defendant knew he or
she was restraining, that the defendant knew the restraint
was unlawful and that the defendant knew “the restraint
[was] under circumstances exposing the victim to serious
bodily injury.” In this case, where the jurors could have
found the defendant did not knowingly expose the victim
to the risk of serious bodily, reversal was required.

B. False imprisonment

An individual is guilty of false imprisonment, a
disorderly persons offense, if he knowingly and
unlawfully restrains another “so as to interfere

substantially with his liberty.” N.J.S.A. 2C: 13-3. It is

an affirmative defense to a prosecution under both this

statutory provision and N.J.S.A. 2C:13-2 that the person

held was less than eighteen years old, that defendant was

the legal guardian or a relative of the person restrained

and that defendant’s only purpose was to assume control

of the child.

State v. Bragg, 295 N.J. Super. 459 (App. Div. 1996).

On retrial, upon request, false imprisonment must be

charged to the jury as a lesser-included offense of criminal

restraint where the facts demonstrated a question as to

whether the defendant restrained the victim in

circumstances exposing her to serious bodily injury.

C. Interference with Custody, Criminal Coercion,

Enticing Child

A defendant is guilty of either a third-degree or

fourth-degree offense if, with a purpose to unlawfully

restrict another’s freedom of action, the defendant

threatens to take one of the actions enumerated in

N.J.S.A. 2C:13-5a(1) through (7). Grading of the crime

depends on whether defendant’s purpose was criminal or

whether the threat was to commit a crime more serious

than one of the fourth degree.

In State v. Monti, 260 N.J. Super. 179 (App. Div.

1992), erroneous jury charge mandated reversal of

defendant’s conviction for third-degree conspiracy to

commit criminal coercion. The trial judge failed to have

the jury consider the seriousness of the threat defendant

paid a “hit man” to undertake and failed to properly

identify the threatened crime and its elements. In this

case, defendant’s non-criminal purpose in conspiring was

to coerce another into refraining from interfering with

defendant’s use of his property.