Sentencing in New Jersey – What a judge will consider, must they approve plea agreements and what your defense lawyer needs to argue
Recently our criminal defense law firm represented a client in Cape May County, New Jersey in a vehicular homicide that took the lives of 2 people. https://6abc.com/gerald-white-sentenced-h2oi-wildwood-rally-timothy-ogden-lindsay-weakland/14401711/
This case did not go to trial due to overwhelming amount of evidence against our client. Based on our detailed evaluation of the case, the State (prosecutor) would have been able to meet its burden of proof of guilt beyond a reasonable doubt. Despite a case not going to trial and resulting in a plea, there is still so much your criminal defense lawyer can do for you!
This was a very difficult sentencing in New Jersey where our client faced over 80 years of incarceration for 2 aggravated vehicular manslaughters and related charges where sadly 2 people lost their lives. Prior to sentencing our criminal defense law firm was able to negotiate a twenty-five (25) year State prison sentence which will require our client to serve 85% of the term imposed. The plea agreement also allowed our law firm to argue for leniency and a lesser sentence.
The facts in this case were overwhelming and the possibility of an acquit was virtually nonexistent. In addition, the very aggravating nature of the case would have almost ensured the Judge would have imposed well beyond the sentence we negotiated.
Sentencing in New Jersey
Sentencing in New Jersey is entirely in the discretion of the sentencing Judge, but the Prosecutor and the defense are permitted to negotiate as to a recommendation which is often approved and imposed. Prior to these negotiations it is important that the defense counselor and Prosecution discuss various aspects of the case including aggravating and mitigating circumstances. In New Jersey there are specific factors which a Court can consider. These factors are as follows:
(1)The nature and circumstances of the offense, and the role of the actor therein, 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, 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 he has been convicted;
(7)The defendant committed the offense pursuant to an agreement that he 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 fireman, acting in the performance of his 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; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person’s status as a sports official, coach or manager;
(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 he knew or should have known was 60 years of age or older, or disabled; and
(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
The Mitigating Factors
The mitigating factors in New Jersey are as follows:
(1)The defendant’s conduct neither caused nor threatened serious harm;
(2)The defendant did not contemplate that his 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 his conduct for the damage or injury that he 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 he 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 himself or his 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.
Presumption of Incarceration in New Jersey
There is a presumption for incarceration where a person is convicted of a crime of the first or second degree. There is also a presumption of incarceration for those convicted of third degree crimes where the court finds that there is a substantial likelihood that the defendant is involved in organized crime (aggravating factor). With exception to mandatory minimum sentences (example Graves Act- Illegal Handguns), the court does not have to impose a term of imprisonment on someone even if they are convicted of a first or second degree crime.
In these situations, the sentencing court should determine whether there is “clear and convincing evidence” that there are relevant mitigating factors present to an extraordinary degree and whether those factors exceed aggravating factors which would make prison constitute a serious injustice. Keep in mind that the fact that a defendant would incur hardship in prison or that his family would incur a hardship is not usually enough to overcome a presumption of incarceration.
While third and fourth degree crimes do not carry a presumption of incarceration, the prosecution can overcome this presumption by showing that prison is necessary for the protection of the public given the nature and circumstances of the offense and the history, character, and condition of the defendant. The sentencing court must be persuaded that there is clear and convincing evidence that incarceration is necessary. There are also special rules that apply to repeat offenders and those with prior convictions.
Mandatory Sentences & No Early Release Crimes
While Courts have wide range of discretion with regards to sentences, there are also various mandatory minimum sentences under New Jersey Graves Act (firearms offenses) as low as the offenses which are classified as violent crimes. These violent crimes are otherwise known as No Early Release Act (NERA) crimes.
Mirror offenses require that the Defendant serve 85% of the term imposed regardless of what sentence the Court imposes. In addition, crimes under the GRAVES Act also impose a period of parole ineligibility. Nonmandatory crimes in Pennsylvania make the Defendant eligible for parole typically at 1/3 of the sentence imposed (flat sentence).
With plea negotiations it is important that the criminal defense lawyer evaluate pre-Trial and Trial options which would include Motions to suppress evidence and other pre-Trial Motions like Motions to quash the Indictment.
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