Sentencing in criminal cases.

2C:44- 1
www.nj laws.com/ sentencing .html?id=1068&a=
Sentencing . Kenneth Vercammen' s Law office represents persons charged
with criminal offenses throghot !ew "erse#.
$he "dge at the ti me of sentenci ng alwa#s has se%eral options incldi ng &t
not limi ted to jail' pro&ati on' commni t # ser%ice' resti tti on and s&stance a&se
conseling. $he (ro&ation )epartment' which has inter%i ewed #o' will prepare
what is called a (re*Sentence +eport. $his pro%i des informati on regardi ng the
offense to the ,ort together with informati on regardi ng #or &ac-grond. $he
jdge will also re%iew an# letters or docments that are s&mi t ted to the ,ort on
#or &ehalf.
2C:44- 1 Criteri a for wit hhol di ng or impos i ng sent e nc e
of impri s onme nt . 2C:44- 1. a. In det er mi ni ng the appropri at e
sent ence to be imposed on a person who has been convict ed of
an offense, the court shall consi der the following aggr avat i ng
circumst anc e s: (1!he nat ur e and circumst anc e s of the offense,
and the role of the act or ther ei n, including whet her or not it
was commi t t ed in an especi all" heinous, cruel, or depr aved
manner#(2!he gravit" and seriousnes s of har m inflict ed on the
victi m, including whet her or not the defendant $new or
reasonabl " shoul d have $nown that the victi m of the offense
was particul arl" vulner abl e or incapabl e of resist ance due to
advanced age, ill-heal t h, or e%tr eme "out h, or was for an"
other reason subst ant i all" incapabl e of e%erci si ng nor mal
ph"sical or ment al power of resist ance# (&!he ris$ that the
defendant will commi t anot her offense#(4' lesser sent ence will
depr eci at e the seriousnes s of the defendant ( s offense becaus e
it involved a breach of the public trust under chapt er s 2) and
&*, or the defendant too$ advant age of a position of trust or
confidence to commi t the offense#(+!her e is a subst ant i al
li$elihood that the defendant is involved in organi,ed criminal
activit"#(-!he e%t ent of the defendant ( s prior criminal record
and the seriousnes s of the offenses of which he has been
convict ed#()!he defendant commi t t ed the offense pursuant to
an agr ee me nt that he either pa" or be paid for the commi ssi on
of the offense and the pecuni ar" incenti ve was be"ond that
inher ent in the offense itself#(.!he defendant commi t t ed the
offense agai nst a police or other law enforceme nt officer,
correcti onal empl o"ee or fireman, acting in the perfor mance of
his duti es while in uniform or e%hi biting evidence of his
aut horit "# the defendant commi t t ed the offense becaus e of the
st at us of the victi m as a public servant # or the defendant
commi t t ed the offense agai nst a sport s official, at hl eti c coach
or manager , acting in or immedi at el " following the
perfor manc e of his duti es or becaus e of the person( s st at us as
a sport s official, coach or manager # (/!he need for det erri ng
the defendant and other s from violating the law# (1* !he
offense involved fraudul ent or decept i ve practi ces commi t t ed
agai nst an" depar t me nt or division of 0tat e governme nt # (11
!he imposition of a fine, penal t " or order of restit uti on without
also imposi ng a ter m of imprisonme nt would be percei ved b"
the defendant or other s mer el " as part of the cost of doing
business, or as an accept abl e contingent business or oper at i ng
e%pens e associ at ed with the initial deci sion to resort to
unlawful practices#(12 !he defendant commi t t ed the offense
agai nst a person who he $new or shoul d have $nown was -*
"ear s of age or older, or disabl ed# and(1& !he defendant , while
in the course of commi t ti ng or att empt i ng to commi t the crime,
including the immedi at e flight ther efrom, used or was in
posses si on of a stol en mot or vehicl e.b.In det er mi ni ng the
appropri at e sent ence to be imposed on a person who has been
convict ed of an offense, the court ma" properl" consi der the
following mitigati ng circumst anc e s: (1!he defendant ( s conduct
neit her caused nor threat ene d serious har m#(2!he defendant
did not cont empl at e that his conduct would cause or threat en
serious har m#(&!he defendant act ed under a strong
provocat i on#(4!her e were subst ant i al grounds tendi ng to
e%cuse or 1ustif" the defendant ( s conduct , though failing to
est abli sh a defens e# (+!he victi m of the defendant ( s conduct
induced or facilitat ed its commi ssi on#(-!he defendant has
compens at e d or will compens at e the victi m of his conduct for
the damage or in1ur" that he sust ai ned, or will partici pat e in a
progr a m of communi t " service#()!he defendant has no hist or"
of prior delin2uenc" or criminal activit" or has led a law- abiding
life for a subst ant i al period of time before the commi ssi on of
the present offense#(.!he defendant ( s conduct was the resul t
of circumst anc e s unli$el" to recur#(/!he char act er and
attit ude of the defendant indicat e that he is unli$el" to commi t
anot her offense#(1* !he defendant is particul arl" li$el" to
respond affirmati vel" to probat i onar " treat me nt # (11 !he
imprisonment of the defendant would ent ail e%cessi ve hardshi p
to himself or his depende nt s# (12 !he willingness of the
defendant to cooper at e with law enforceme nt aut horiti es#(1&
!he conduct of a "out hful defendant was subst ant i all"
influenced b" anot her person more mat ur e than the defendant .
c. (1 ' plea of guilt" b" a defendant or failure to so plead shall
not be consi der ed in withhol di ng or imposi ng a sent ence of
imprisonment . (23hen imposi ng a sent ence of imprisonme nt
the court shall consi der the defendant ( s eligibilit" for releas e
under the law governi ng parol e, including time credit s awar ded
pursuant to !itle &* of the 4evised 0tat ut es, in det er mi ni ng the
appropri at e ter m of imprisonme nt . d.5resumpt i on of
imprisonment . !he court shall deal with a person who has been
convict ed of a crime of the first or second degr ee, or a crime of
the third degr ee wher e the court finds that the aggr avat i ng
fact or in paragr aph (+ of subsect i on a. appli es, b" imposi ng a
sent ence of imprisonment unless, having regar d to the
char act er and condition of the defendant , it is of the opinion
that his imprisonment would be a serious in1ustice which
overri des the need to det er such conduct b" other s.
6otwithst andi ng the provisions of subsect i on e. of this section,
the court shall deal with a person who has been convict ed of
theft of a mot or vehicl e or of the unlawful ta$ing of a mot or
vehicl e and who has previousl" been convict ed of either
offense b" imposi ng a sent ence of imprisonment unless, having
regar d to the char act er and condition of the defendant , it is of
the opinion that his imprisonme nt would be a serious in1ustice
which overri des the need to det er such conduct b" other s.e.!he
court shall deal with a person convict ed of an offense other
than a crime of the first or second degr ee, who has not
previousl" been convict ed of an offense, without imposi ng a
sent ence of imprisonment unless, having regar d to the nat ur e
and circumst anc e s of the offense and the histor", char act er
and condition of the defendant , it is of the opinion that his
imprisonment is necess ar " for the prot ecti on of the public
under the criteri a set forth in subsect i on a., e%cept that this
subsect i on shall not appl" if the court finds that the
aggr avat i ng fact or in paragr aph (+ of subsect i on a. appli es or
if the person is convict ed of an" of the following crimes of the
third degr ee: theft of a mot or vehicl e# unlawful ta$ing of a
mot or vehicl e# eluding# if the person is convict ed of a crime of
the third degr ee constit uti ng use of a false gover nme nt
document in violation of subsect i on c. of section 1 of 5.7.1/.&,
c.+-+ (C.2C:21- 2.1# if the person is convict ed of a crime of the
third degr ee constit uti ng distributi on, manuf act ur e or
posses si on of an item cont ai ni ng personal identif"ing
informat i on in violation of subsect i on b. of section - of
5.7.2**&, c.1.4 (C.2C:21- 1). &# if the person is convict ed of a
crime of the third or fourt h degr ee constit uti ng bias
inti mi dat i on in violation of 6.8.0.2C:1-- 1# or if the person is
convict ed of a crime of the third degr ee under section 2 of
5.7.1//), c.111 (C.2C:12- 1.1# or if the person is convict ed of a
crime of the third or fourt h degr ee under the provisions of
section 1 or 2 of 5.7.2**), c.&41 (C.2C:&&- 2/ or C.2C:&&- &*.f.
5resumpt i ve 0ent ences. (1 9%cept for the crime of murder,
unless the preponder anc e of aggr avat i ng or mitigati ng fact ors,
as set forth in subsect i ons a. and b., weighs in favor of a higher
or lower ter m within the limits provided in 6.8.0.2C:4&- -, when
a court det er mi nes that a sent ence of imprisonme nt is
warrant ed, it shall impose sent ence as follows:(a!o a ter m of
2* "ears for aggr avat e d mansl aught er or $idnappi ng pursuant
to paragr aph (1 of subsect i on c. of 6.8.0.2C:1&- 1 when the
offense constit ut es a crime of the first degr ee# (b9%cept as
provided in par agr aph (a of this subsect i on to a ter m of 1+
"ear s for a crime of the first degr ee# (c!o a ter m of seven "ear s
for a crime of the second degr ee# (d!o a ter m of four "ear s for
a crime of the third degr ee# and(e!o a ter m of nine mont hs for
a crime of the fourt h degr ee. in imposi ng a mini mum ter m
pursuant to 2C:4&- -b., the sent enci ng court shall specificall"
place on the record the aggr avat i ng fact ors set forth in this
section which 1ustif" the imposi tion of a mini mum ter m.:nless
the preponder anc e of mitigati ng fact ors set forth in subsect i on
b. weighs in favor of a lower ter m within the limits aut hori,ed,
sent ences imposed pursuant to 2C:4&- )a.(1 shall have a
presumpt i ve ter m of life imprisonment . :nless the
preponder anc e of aggr avat i ng and mitigati ng fact ors set forth
in subsect i ons a. and b. weighs in favor of a higher or lower
ter m within the limits aut hori,ed, sent ences imposed pursuant
to 2C:4&- )a.(2 shall have a presumpt i ve ter m of +* "ears(
imprisonment # sent ences imposed pursuant to 2C:4&- )a.(&
shall have a presumpt i ve ter m of 1+ "ears( imprisonme nt # and
sent ences imposed pursuant to 2C:4&- )a.(4 shall have a
presumpt i ve ter m of seven "ears( imprisonme nt . In imposi ng a
mini mum ter m pursuant to 2C:4&- )b., the sent enci ng court
shall specificall" place on the record the aggr avat i ng fact ors
set forth in this section which 1ustif" the imposi tion of a
mini mum ter m.(2In cases of convictions for crimes of the first
or second degr ee wher e the court is clearl" convinced that the
mitigati ng factors subst ant i all" outwei gh the aggr avat i ng
fact ors and wher e the int er est of 1ustice demands, the court
ma" sent ence the defendant to a ter m appropri at e to a crime
of one degr ee lower than that of the crime for which he was
convict ed. If the court does impose sent ence pursuant to this
paragr aph, or if the court imposes a noncust odi al or
probat i onar " sent ence upon conviction for a crime of the first
or second degr ee, such sent ence shall not become final for 1*
da"s in order to per mi t the appeal of such sent ence b" the
prosecut i on.g.Imposi ti on of 6oncust odi al 0ent ences in Cert ai n
Cases. If the court, in consi deri ng the aggr avat i ng fact ors set
forth in subsect i on a., finds the aggr avat i ng fact or in paragr aph
a.(2, a.(+, a.(1*, or a.(12 and does not impose a cust odi al
sent ence, the court shall specificall" place on the record the
mitigati ng factors which 1ustif" the imposi tion of a noncust odi al
sent ence. h.9%cept as provided in section 2 of 5.7.1//&, c.12&
(C.2C:4&- 11, the presumpt i on of imprisonment as provided in
subsect i on d. of this section shall not precl ude the admi ssi on of
a person to the Intensive 0upervi sion 5rogr am, est abli shed
pursuant to the 4ules ;overni ng the Court s of the 0tat e of 6ew
8erse".
2C:44- 2. Criteri a for Imposi ng Fines and Rest i t ut i ons
a. !he court ma" sent ence a defendant to pa" a fine in
addition to a sent ence of imprisonment or probat i on if: (1
!he defendant has derived a pecuni ar" gain from the offense or
the court is of opinion that a fine is speci all" adapt ed to
det err ence of the t"pe of offense involved or to the correcti on
of the offender# (2 !he defendant is abl e, or given a fair
opport uni t " to do so, will be abl e to pa" the fine# and (&
!he fine will not prevent the defendant from ma$i ng restit uti on
to the victi m of the offense. b. !he court shall sent ence a
defendant to pa" restit uti on in addi tion to a sent ence of
imprisonment or probati on that ma" be imposed if: (1 !he
victi m, or in the case of a homi ci de, the near est relative of the
victi m, suffered a loss# and (2 !he defendant is abl e to pa"
or, given a fair opport uni t ", will be abl e to pa" restit uti on. c.
(1 In det er mi ni ng the amount and met hod of pa"ment of a
fine, the court shall ta$e into account the financi al resour ces of
the defendant and the nat ur e of the burden that its pa"ment
will impose. (2 In det er mi ni ng the amount and met hod of
pa"ment of restit ution, the court shall ta$e into account all
financi al resources of the defendant , including the defendant ( s
li$el" future earni ngs, and shall set the amount of restit uti on so
as to provide the victi m with the fullest compens at i on for loss
that is consi st ent with the defendant ( s abilit" to pa". !he court
shall not reduce a restit uti on awar d b" an" amount that the
victi m has recei ved from the <iolent Crimes Compens at i on
=oard, but shall order the defendant to pa" an" restit uti on
order ed for a loss previousl" compens at e d b" the =oard to the
<iolent Crimes Compens at i on =oard. If restit uti on to more than
one person is set at the same time, the court shall set priorities
of pa"ment . d. 6onpa"ment . 3hen a defendant is
sent ence d to pa" a fine or ma$e restit uti on, or bot h, the court
shall not impose at the same time an alt ernat i ve sent ence to be
served in the event that the fine or restit ution is not paid. !he
respons e of the court to nonpa"me nt shall be det er mi ned onl"
aft er the fine or restit uti on has not been paid, as provided in
section 2C:4-- 2. e. 3henever the ma%i mum pot ent i al fine
which ma" be imposed on a conviction for an offense defined in
the >Compr ehensi ve ?rug 4eform 'ct of 1/.-, > 6.8.0. 2C:&+- 1
et al. depends on the street value of the controlled danger ous
subst anc e or controlled subst ance analog involved and the
court int ends to impose a fine in e%cess of the ma%i mum
ordinar" fine applicabl e to the offense for which defendant was
convict ed, and wher e the fine has not been agreed to pursuant
to the provisions of 6.8.0.2C:&+- 12, the court at the time of
sent ence shall det er mi ne the street value at the time and place
of the offense based on the amount and purit" of the controlled
danger ous subst ance or controlled subst anc e anal og involved.
!he sent enci ng court ( s finding as to the street value ma" be
based on e%per t opinion in the form of live testi mon" or b"
affidavit, or b" such other means as the court deems
appropri at e. !he court ( s finding as to street value shall not be
sub1 ect to modification b" an appell at e court e%cept upon a
showing that the finding was tot all" lac$ing in support on the
record or was arbitr ar" or capricious. f. !he orderi ng of
restit ution pursuant to this section shall not oper at e as a bar to
the see$i ng of civil recover" b" the victi m based on the
incident underl"ing the criminal conviction. 4estit uti on order ed
under this section is to be in addi tion to an" civil remed" which
a victi m ma" posses s, but an" amount due the victi m under
an" civil remed" shall be reduced b" the amount order ed under
this secti on to the e%t ent necess ar " to avoid doubl e
compens at i on for the same loss, and the initial restit uti on
1udgment shall remai n in full force and effect .
.f #o ha%e a drg charge' the "dge will often ha%e a drg test condcted on
the morni ng of sentenci ng. .f #o test positi %e for illegal drgs' the jdge sall # will
ha%e the defendant loc-ed p.
KENNETH VERCAMMEN &
ASSOCIATES, PC
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500