N.J. Admin. Code § 13:75-2.1

Current through Register Vol. 56, No. 8, April 15, 2024

Section 13:75-2.1 - Eligibility of claims

(a) The Office may order the payment of compensation for personal injury or death resulting from an attempt to prevent the commission of a crime or to arrest a suspected criminal or in aiding or attempting to aid a police officer in doing so.

(b) The Office may order the payment of compensation for personal injury or death resulting from the commission or attempt to commit any of the following offenses:

1. Aggravated assault;

2. Threats to do bodily harm;

3. Lewd, indecent, or obscene acts;

4. Indecent acts with children;

5. Kidnapping;

6. Murder;

7. Manslaughter;

8. Aggravated sexual assault;

9. Sexual assault;

10. Aggravated criminal sexual contact;

11. Criminal sexual contact;

12. Any other crime involving violence, including, but not limited to, robbery or arson;

13. Domestic violence, pursuant to N.J.S.A. 2C:25-19;

14. Burglary;

15. Tampering with a cosmetic, drug, or food product;

16. Human trafficking pursuant to N.J.S.A. 2C:13-8;

17. Bias intimidation in accordance with N.J.S.A. 2C:16-1;

18. Criminal stalking pursuant to N.J.S.A. 2C:12-10;

19. Vehicular homicide;

20. Assault by auto;

21. Simple assault pursuant to N.J.S.A. 2C:12-1;

22. Disorderly conduct pursuant to N.J.S.A. 2C:33-2; or

23. Eligibility of claims involving a motor vehicle, vessel, airplane, or commercial vehicle in which one or more of the following situations occurred:

i. The victim was injured in the commission of a violation of N.J.S.A. 39:4-50(Driving while Intoxicated);

ii. The victim was injured in the commission of a violation of N.J.S.A. 39:3-10.13(Operating a Commercial Vehicle while Intoxicated);

iii. The victim was injured in the commission of a violation of N.J.S.A. 12:7-46(Penalties for Operating Vessel Under the Influence);

iv. Theft of an automobile pursuant to N.J.S.A. 2C:20-2.1;

v. Eluding a law enforcement officer pursuant to N.J.S.A. 2C:29-2b; vi. Unlawful taking of a motor vehicle pursuant to N.J.S.A. 2C:20-10b, c, or d, where injuries to the victim occur in the course of operating an automobile in furtherance of the offense; or vii. A motor vehicle, vessel, airplane, or commercial vehicle is used as a weapon, including, but not limited to, as a vehicle to carry explosives with intent to detonate the same to inflict a deliberate injury, the Office shall consider such use as a compensable "crime involving violence" as set forth in N.J.S.A. 52:4B-11(b)(10).

(c) Eligible victims may also include:

1. Non-residents and Federal crime victims on the same basis as State residents who are victims of a crime committed in the State;

2. Residents of the State injured in a foreign jurisdiction where said jurisdiction is without a victim compensation program; and/or

3. Residents of the State who have received a final determination from a foreign jurisdiction as to a claim filed with a victim's compensation program in that foreign jurisdiction that has not fully compensated the victim or claimant for all out-of-pocket and unreimbursed and unreimbursable expenses, except that:

i. Where residents of the State are injured in a foreign state, said foreign state has primary jurisdiction, and the Office will not entertain a claim for compensation until the victim or claimant has fully exhausted all available procedures for victim's compensation in said foreign state.

(d) Where the victim of a crime has died as a direct result thereof, the Office may award compensation to the following persons:

1. A surviving spouse, parent, child, or stepchild of the deceased victim who has suffered economic loss;

2. Any relative of the deceased victim who was dependent upon the victim for support, or any person who has cohabitated with the victim/decedent and who can establish by a preponderance of evidence that a dependency existed at the time of death of the victim. In examining the issue of loss of support as it relates to this paragraph, the Office shall consider any factor it deems relevant;

3. The relative, estate of, or other natural persons who have demonstrated out-of-pocket unreimbursed and unreimbursable medical and funeral expenses for which they have become responsible on behalf of the decedent due to the incident upon which the claim is based.

(e) Any claimant who is held by the Office to be responsible for the crime upon which a claim is based, or is held to have been an accomplice or conspirator of the offender, is not eligible for compensation.

(f) No award will be made if compensation to the victim or claimant proves to be substantial unjust enrichment to the offender.

1. Where the enrichment is inconsequential or minimal, compensation may not be denied nor reduced.

2. The factors to be considered in determining whether the unjust enrichment is substantial include, but are not limited to:

i. The amount of the award and whether it is made directly to the claimant or victim;

ii. Whether the offender has access to any cash payments coming into the household on behalf of the claimant or victim;

iii. Whether the award is essential to the well-being of the claimant or victim and other innocent and dependent family members;

iv. The amount of living expenses paid by the offender before and during the dependency of the claim;

v. If a significant portion of the award will be used directly by the offender for living expenses;

vi. The legal responsibilities of the offender to the claimant or victim;

vii. Collateral resources available from the offender, which resources include, but are not limited to, court-ordered restitution or support, and insurance and pension benefits. However, life insurance payments and private donations received by the dependents of the victim shall not be considered as collateral resources.

(1) In evaluating collateral resources, the Office may consider whether the offender has a legal responsibility to pay, whether the offender has resources to pay, and whether payment is likely.

(2) The claimant or victim may not be penalized for failure of the offender to meet his or her obligation to pay for the costs of the victim's recovery; and

viii. The offender's cooperation in providing the Office with information concerning medical insurance coverage and any other information necessary to make a determination.

(g) The Office may reduce an award for compensation where the victim has not paid in full any payments owed on assessments imposed pursuant to N.J.S.A. 2C:43-3.1 or restitution ordered following conviction for a crime by deducting the amount owed and making the payments on behalf of the victim to satisfy these obligations.

(h) The Office shall not deny an award for compensation to a victim or claimant who has any nonindictable warrants or pending criminal charges. If a court-ordered bench warrant for the victim or claimant's arrest is issued for an indictable offense and remains active, the Office may make an award for compensation if there exists an emergent need. Compensation for emergency housing in order to protect the victim's physical safety shall never be denied due to a victim's criminal status.

1. Except in the case of an otherwise eligible innocent child or incompetent victim, if the parent of guardian of such victim is subject to this provision, the parent or guardian shall file the claim on behalf of the minor as a victim's representative only and shall not be eligible for any independent benefit or compensation otherwise available to claimants. Limited compensation may be awarded for those expenses and services that will directly benefit the innocent child victim.

2. Upon submission to the Office of verification from the court that the bench warrant, criminal complaint, or indictment has been dismissed or otherwise disposed of, a victim or claimant may petition the Office to reopen the claim.

(i) If a victim is injured while serving a non-custodial sentence or while incarcerated for reasons other than conviction of a crime, the Office may consider an award of compensation and shall take all relevant matters into consideration including, but not limited to, the following:

1. The availability of funds as appropriated by the State in awarding compensation;

2. Whether the victim assumed a reasonable risk of injury under all the circumstances of the case;

3. Whether the victim had reason to believe that his or her actions would result in arrest, conviction, sentence, and incarceration;

4. The likelihood of the victim's conviction for the allegations serving as the basis for the victim's incarceration;

5. The nature of the offense and the sentence imposed; and 6. The disposition of the charges by the criminal justice system.

(j) Factors the Office may consider in denying a claimant's eligibility include, but are not limited to:

1. Provocation;

2. Consent;

3. Participation in an illegal activity or behavior on the part of the victim that directly or indirectly contributed to his or her injury or death;

4. The prior case history of the victim, including matters pertaining to the victim's medical history and whether the victim cooperated with reasonable requests of law enforcement authorities or showed a compelling health or safety reason why they could not cooperate;

5. In determining whether to limit or deny an award for compensation due to the victim's contributory conduct, the Office may consider any facts that provide relevant evidence as to whether the victim's conduct was the proximate cause of the victim's injury or death. The Office may reduce the amount of the award or reject the application where it determines that the victim's conduct was the proximate cause of their injury or death. The Office shall provide compensation for emergency, temporary housing for an at-risk victim, regardless of contributory conduct, where a public safety issue exists; and

6. Notwithstanding any other provision of N.J.S.A. 52:4B-1et seq., to the contrary, the Office may make a limited award for funeral benefits, mental health counseling, loss of support for dependent children, and attorneys' fees in cases of criminal homicide when there is a determination that the victim's conduct was a contributing factor to the victim's death. The Office shall not deem any conduct of the victim a contributing factor toward the victim's injury, if the facts demonstrate that the conduct occurred during efforts by a victim to prevent a crime or to apprehend either a person who had committed a crime in the victim's presence or a person who had in fact committed a crime.

(k) The Office may deny or reduce an award if it is determined that the victim was not wearing protective equipment such as a safety belt or if the victim is the operator of a second vehicle and does not have automobile insurance as required by law. Factors the Office may consider include, but are not limited to, the extent to which the deficiency contributed to the resulting injuries and victim's knowledge of the deficiency.

(l) An award for compensation may be made whether or not any person is prosecuted or convicted for the crime giving rise to the claim.

N.J. Admin. Code § 13:75-2.1

Amended by 53 N.J.R. 1852(c), effective 11/1/2021