2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Saturday, March 26, 2011



a. Overview

Sentencing in New Jersey is governed by the New Jersey Code of Criminal Justice, Title 2C. The Code of Criminal Justice defines what constitutes criminal activity and what the penalties are for violating the law. There are four degrees of crime: first degree, second degree, third degree and fourth degree. The most serious criminal activity is encompassed in the first degree category. An example of a first degree crime is armed robbery. The least serious type of criminal activity is contained in the fourth degree category. An example of this would be theft of goods valued at between $200-$500. Below these four levels of crimes there are two levels of less serious offenses, 20

which are categorized as disorderly persons, and petty disorderly persons offenses. Upon conviction of a crime of the first degree, a judge may sentence within a prescribed range of 10-20 years in state prison; for violating a second degree crime, within a range of 5-10 years in state prison; for a third degree crime, within a range of 3-5 years in state prison; and for fourth degree crime, within a range of up to 18 months. Any sentence of one year or greater is a sentence to state prison unless the county has a penitentiary or workhouse. N.J.S.A. 2C:43-10(a) and (b).

These sentencing ranges were placed in the Criminal Code to guide judges' discretion and, hopefully, avoid undue sentencing disparity. Sentencing disparity occurs when two offenders who have similar backgrounds and who committed similar offenses receive dissimilar sentences. A judge can determine the length of sentence, within the permissible range by first starting at the mid-range of the sentence range and then considering the aggravating and mitigating factors. Aggravating factors are factors that aggravate the crime or make the crime more serious while the mitigating factors are factors that mitigate the crime or make the crime less serious.

Under the Code, there is a presumption of incarceration for persons sentenced for first and second degree crimes or for persons convicted for a second time of theft of a motor vehicle or of the unlawful taking of a motor vehicle. This means that it is presumed that the judge will sentence an offender to state prison. In order to overcome this presumption, which would allow the judge to sentence the offender to probation or another non-incarcerative term, the court, having regard for the character and condition of the defendant, must find that the defendant's imprisonment would be a serious injustice which overrides the need to deter such conduct by others. N.J.S.A. 2C:44-1(d).

There is no presumption of incarceration for crimes of the third and fourth degree. This means that the judge is free to determine whether or not to sentence the offender to incarceration. However, there is a presumption against incarceration if the offender is a first offender. This presumption against incarceration does not apply to certain third or fourth degree crimes such as theft of a motor vehicle, unlawful taking of a motor vehicle, eluding, or a crime of the third or fourth degree constituting bias intimidation. N.J.S.A. 2C:44-1(e). 21

Once a judge decides to impose a prison sentence, the judge can also fix a minimum term of parole ineligibility if he or she is clearly convinced that the aggravating factors substantially outweigh the mitigating factors. These minimum terms are called discretionary minimum terms as they are solely within the discretion of the judge. A minimum parole ineligibility term is a period of time that the offender must serve in prison before becoming eligible for release on parole. A minimum parole ineligibility term can be up to one half of the maximum sentence that is imposed. N.J.S.A. 2C:43-6(b).

There are a number of statutes that require that the judge impose a mandatory minimum parole ineligibility term, meaning that the judge has no discretion whether to impose a minimum term. Some examples are persons convicted of possession of a firearm with intent to use it against the person of another or committing certain offenses while using or possessing a firearm (Graves Act), death by auto while under the influence of alcohol or drugs, sex offenses (second or subsequent offenses) and distributing drugs near or on school property (School Zone).

The Criminal Code also gives sentencing judges the discretion to extend the term of imprisonment of offenders convicted of first, second, or third degree offenses who are (1) persistent offenders, (2) professional criminals, (3) hired criminals, (4) second offenders with a firearm, (5) convicted of committing certain crimes and during the course of committing the crime used, or were in possession of a stolen motor vehicle, or (6) convicted of aggravated sexual assault, sexual assault, aggravated criminal sexual contact or criminal sexual contact involving violence and the victim was 16 years of age or younger, or (7) knowingly involved in criminal street gang activity. In most cases in order to extend the term, the prosecutor must make an application to the court and the court must hold a hearing. At the hearing, the State must prove that the defendant falls within the enhancement criteria set forth in N.J.S.A. 2C:44-3. Pursuant to Rule 3:21-4 (e), (f), the prosecutor need not file notice to seek an extended term if the extended term exposure is part of the negotiated plea agreement and is set forth on the guilty plea form.