Friday, September 8, 2017

N.J.S.A. 2C:33-2 Disorderly conduct

  

N.J.S.A. 2C:33-2 Disorderly Conduct


N.J.S.A. 2C:33-2

a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or

(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.

Public means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

L.1978, c. 95, s. 2C:33-2, eff. Sept. 1, 1979.

http://www.njlaws.com/NJSA2C-33-2.html?id=3012&a=

Sunday, September 3, 2017

Probation in Lieu of Jail

                  Probation in Lieu of Jail

          Kenneth Vercammen's Law office represents individuals charged with criminal offenses. We provide representation throughout New Jersey.  Criminal charges can cost you.  If convicted, you can face jail, fines, Probation and other penalties.  Don't give up!  Our Law Office can provide experienced attorney representation for criminal offenses in juvenile matters,  and other offenses. Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people.

Violation of a Term of Probation or of a Suspended Sentence: Statutory Provisions
1. Statutory Authority for Summons, Arrest, and Detention.
N.J.S.A. 2C:45-3(a)(1) provides that at any time during a term of sentence suspension or probation the court may summons the defendant to appear before it or issue a warrant for the defendant's arrest. N.J.S.A. 2C:45-3(a)(2) allows a probation officer or peace officer to arrest the defendant without a warrant upon probable cause that the defendant violated a term of sentence suspension or probation.
(a) Hearing. N.J.S.A. 2C:45-4 instructs that the defendant must receive written notice of the violation charges and must be provided a hearing at which he or she "shall have the right to hear and controvert the evidence against him [or her], to offer evidence in his [or her] defense, and to be represented by counsel." The court may hold the defendant without bail pending decision on the charges. N.J.S.A. 2C:45-3(a)(3).
(b) Tolling Pending Disposition of the Charges. The probation or suspension period is tolled pending disposition of the violation charges. N.J.S.A. 2C:45-3(c). In the event the court finds no violation of probation, the period will be deemed not tolled. Ibid.
2. Revocation of Probation or Sentence Suspension. If the court finds "that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of" probation or sentence suspension, or if the defendant is convicted of another offense, the court "may revoke the suspension or probation and sentence or resentence the defendant." N.J.S.A. 2C:45-3(a)(4). However, "[n]o revocation of suspension or probation shall be based on failure to pay a fine or make restitution, unless the failure was willful." Ibid.
3. Resentencing the Initial Offense. In resentencing the initial offense, the court may impose "any sentence that might have been imposed originally." N.J.S.A. 2C:45-3(b).
4. Credit for time served. Pursuant to N.J.S.A. 2C:45-1(e), if the court imposes a term of incarceration as a condition of probation or sentence suspension, "[t]he term of imprisonment . . . shall be treated as part of the sentence, and in the event of a sentence of imprisonment upon the revocation of probation, the term of imprisonment served hereunder shall be credited toward service of such subsequent sentence."
5. Sentencing on the New Offense Where the Court Does Not Revoke Probation or Sentence Suspension. N.J.S.A. 2C:44-5(g) provides: "When a defendant is convicted of an offense committed while under suspension of sentence or on probation and such suspension or probation is not revoked," the following rules apply.
(a) Imprisonment in Excess of One Year. Where the court imposes imprisonment in excess of one year, the new sentence "shall not satisfy the prior suspended sentence or sentence to probation, unless the court determines otherwise at the time of sentencing." N.J.S.A. 2C:44- 5(g)(1).
(b) Imprisonment of One Year or Less. Where the court imposes a term of imprisonment of one year or less, "the period of the suspension or probation shall not run during the period of such imprisonment." N.J.S.A. 2C:44-5(g)(2).
(c) Imposition of Another Term of Probation or Sentence Suspension. Where the court imposes another suspended term or period of probation, "the period of such suspension or probation shall run concurrently with or consecutively to the remainder of the prior periods, as the court determines at the time of sentence." N.J.S.A. 2C:44-5(g)(3).
C.  Probation and Suspended Sentences:  Case Law
1. The Difference Between Probation and Suspended Sentence.
"The difference between suspension and probation is that probation places the defendant under the supervision of the County Probation Office and normally carries a requirement to report to that office periodically whereas suspension is ordinarily without such supervision." State v. Malave, 249 N.J. Super. 559, 563-64 (App. Div. 1991), certif. denied, 127 N.J. 559 (1992). "In essence, suspension of imposition of sentence is tantamount to 'unsupervised' or 'non-reporting' probation. It is less onerous than probation." State v. Cullen, 351 N.J. Super. 505, 508 (App. Div. 2002).
2. Suspended Sentence. "A court may suspend the imposition of a sentence only after first determining that a non-custodial sentence is authorized and appropriate." State v. Rivera, 124 N.J. 122, 126 (1991).
3. Reasons for a Suspended Sentence. "As a practical matter, a sentencing court may postpone the imposition of sentence for certain reasons such as obtaining information about the defendant or to permit a defendant to comply with a plea agreement, for example, by cooperating with the prosecution and testifying in another matter. Sentence, however, 'shall be imposed without unreasonable delay.'" State v. Rivera, 124 N.J. 122, 126 (1991) (quoting R. 3:21-4(a)).
4. Aggravating and Mitigating Factors and Probation. The court must weigh the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) in deciding whether to impose a term of probation. State v. Baylass, 114 N.J. 169, 174 (1989).
5. Sentencing on Multiple Offenses, Probation and Imprisonment.
"When a defendant is sentenced for more than one offense, . . . N.J.S.A. 2C:44-5(f)(1) prohibits the court from imposing both a sentence of probation and a sentence of imprisonment, except as authorized by N.J.S.A. 2C:43-2(b)(2)" (split sentence). State v. Crawford, 379 N.J. Super. 250, 259 (App. Div. 2005).
6. Conditions of Probation. The court may impose as a condition of probation a requirement that is not expressly authorized by N.J.S.A. 2C:45-1(b) (conditions of probation), as long as the condition "substantially relate[s] to an appropriate penological and rehabilitative objective" and "is not unduly restrictive of" a defendant's liberty. State v. Krueger, 241 N.J. Super. 244, 256-57 (App. Div. 1990). The condition must end with the probationary term. Id. at 256.
7. Resentencing After a Violation of Probation or Suspended Sentence.
(a) Right of Allocution. The defendant has the right to speak on his or her own behalf at resentencing on a violation of probation. State v. Lavoy, 259 N.J. Super. 594, 598-99 (App. Div. 1992).
(b) Considerations in Resentencing, the Baylass Standard.
When resentencing a defendant after a violation of probation or a suspended sentence, the court considers how the violation affects the weight accorded to the mitigating factors identified at the initial sentencing hearing. State v. Baylass, 114 N.J. 169, 178 (1989); State v. Molina, 114 N.J. 181, 184-85 (1989). State v. Hannigan, 408 N.J. Super. 388, 391 (App. Div. 2009) (applying the Baylass standard to a violation of a suspended sentence term). The court may not find any new aggravating factors, and it may not use the violation of probation as a basis to impose consecutive terms. State v. Baylass, 114 N.J. 169, 176-78 (1989). In weighing the mitigating factors, the court may consider the defendant's amenability to probation, including the ability to lead a law-abiding life and the likelihood that the defendant will respond to probationary treatment. Id. at 176-77.
(c) Downgrading. A downgrade to one degree lower, pursuant to N.J.S.A. 2C:44-1(f)(2), does not survive a violation of probation. State v. Frank, 280 N.J. Super. 26, 40 (App. Div.), certif. denied, 141 N.J. 96 (1995). In resentencing, the court must reweigh the aggravating and mitigating factors found at the initial sentencing hearing in relation to the probation violation. Ibid.
(d) Sentence Modification and the No Early Release Act.
Where the court modified, pursuant to Rule 3:21-10, a second degree robbery conviction to probation, and the defendant subsequently violated probation, on resentencing the court had to impose a period of parole ineligibility mandated by the No Early Release Act. State v. Kearns, 393 N.J. Super. 107, 110-11 (App. Div. 2007).
(e) Generally Parole Ineligibility Should Not Be Imposed on Resentencing. A parole disqualifier should not ordinarily be imposed when resentencing a defendant after a probation violation since, at the original sentencing, the mitigating factors weighed in favor of probation. State v. Baylass, 114 N.J. 169, 178 (1989).
(f) Credit for Time Served. A defendant receives credit against a sentence for a probation violation for time served in jail as a condition of probation and for time served on parole following release from jail. State v. Rosado, 131 N.J. 423, 426-28 (1993) (explaining that parole is the legal equivalent of imprisonment for purposes of determining credit under N.J.S.A. 2C:45-1(e) (formerly N.J.S.A. 2C:45-1(d)); State v. Mercadante, 299 N.J. Super. 522, 533-32 (App. Div. 1997). "[T]he credit is to be applied against the aggregate term, and not against [a] Legislatively required parole ineligibility term of incarceration." State v. Mercadante, 299 N.J. Super. 522, 533 (App. Div. 1997). However, the Court said, " [w]e perceive a different result if, in fact, there was no ability to credit parole time against the base term because of the expiration of too great a portion of the aggregate term to permit full credit for the time served on parole." Id. at 534.
Source https://www.njcourts.gov/attorneys/assets/attyresources/manualsentencinglaw.pdf

    The following are the major Court Rules and statutes dealing with Probation and Suspended Sentences in Superior Court matters

         Rule 3:21-7 states:
         After conviction, unless otherwise provided by law, the court may suspend the imposition of a sentence or the defendant may be placed on probation.
(a) Conditions. The order shall require the defendant to comply with standard conditions adopted by the court and filed by counsel with the criminal division manager as designee of the deputy clerk of the Superior Court (except as otherwise ordered), as well as such special conditions, including a term of imprisonment pursuant to N.J.S.A. 2C:45-1c, as the court imposes. As a condition of probation the court may impose a term of community-related service to be performed by the defendant under such terms and conditions as the court may determine. A copy of the order, together with the standard and special conditions, shall be furnished to the defendant, and read and explained to the defendant by the probation officer, whereupon the defendant and the probation officer shall sign a joint statement, to be filed with the criminal division manager as designee of the deputy clerk of the Superior Court, as to the officer's compliance with such reading and explanation requirement. If the defendant refuses to sign such statement, the defendant shall be resentenced.
(b) Detention. The court may, pursuant to N.J.S.A. 2C:45-3a(3), upon a showing of probable cause that the defendant has committed another offense, detain without bail pending determination of the charge, a defendant who was sentenced to probation or whose sentence was suspended.
(c) Revocation. At any time before termination of the period of suspension or probation, the court may revoke a suspension or probation pursuant to N.J.S.A. 2C:45-3.

NJSA  2C:45-1.  sets forth the Conditions of Suspension or Probation.

a.     When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court. 

b.     The court, as a condition of its order, may require the defendant:

(1)    To support his dependents and meet his family responsibilities;

(2)    To find and continue in gainful employment;
 
 (3)    To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose; 

(4)    To pursue a prescribed secular course of study or vocational training;

(5)    To attend or reside in a facility established for the instruction, recreation or residence of persons on probation; 

(6)    To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; 

(7)    Not to have in his possession any firearm or other dangerous weapon unless granted written permission; 

(8)    (Deleted by amendment, P.L.1991, c.329);

(9)    To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment;

(10)   To report as directed to the court or the probation officer, to permit the officer to visit his home, and to answer all reasonable inquiries by the probation officer; 

(11)   To pay a fine;

(12)   To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience; 

(13)   To require the performance of community-related service.


c.     The court, as a condition of its order, shall require the defendant to pay any assessments required by section 2 of P.L.1979, c.396 (C.2C:43-3.1) and shall, consistent with the applicable provisions of N.J.S.2C:43-3, N.J.S.2C:43-4 and N.J.S.2C:44-2 or section 1 of P.L. 1983, c.411 (C.2C:43-2.1) require the defendant to make restitution. 

d.     In addition to any condition imposed pursuant to subsection b. or c., the court shall order a person placed on probation to pay a fee, not exceeding $25.00 per month for the probationary term, to probation services for use by the State, except as provided in subsection g. of this section.  This fee may be waived in cases of Indigency upon application by the chief probation officer to the sentencing court. 

e.     When the court sentences a person who has been convicted of a crime to be placed on probation, it may require him to serve a term of imprisonment not exceeding 364 days as an additional condition of its order.  When the court sentences a person convicted of a disorderly persons offense to be placed on probation, it may require him to serve a term of imprisonment not exceeding 90 days as an additional condition of its order.  In imposing a term of imprisonment pursuant to this subsection, the sentencing court shall specifically place on the record the reasons, which justify the sentence imposed.  The term of imprisonment imposed hereunder shall be treated as part of the sentence, and in the event of a sentence of imprisonment upon the revocation of probation, the term of imprisonment served hereunder shall be credited toward service of such subsequent sentence.  A term of imprisonment imposed under this section shall be governed by the "Parole Act of 1979," P.L.1979, c.441 (C.30:4-123.45 et al.). 

Whenever a person is serving a term of parole as a result of a sentence of incarceration imposed as a condition of probation, supervision over that person shall be maintained pursuant to the provisions of the law governing parole.  Upon termination of the period of parole supervision provided by law, the county probation department shall assume responsibility for supervision of the person under sentence of probation.  Nothing contained in this section shall prevent the sentencing court from at any time proceeding under the provisions of this chapter against any person for a violation of probation. 

f.     The defendant shall be given a copy of the terms of his probation or suspension of sentence and any requirements imposed pursuant to this section, stated with sufficient specificity to enable him to guide himself accordingly. The defendant shall acknowledge, in writing, his receipt of these documents and his consent to their terms. 

g.     Of the moneys collected under the provisions of subsection d. of this section, $15.00 of each monthly fee collected before January 1, 1995 shall be deposited in the temporary reserve fund created by section 25 of P.L.1993, c.275, and $10.00 of each shall be deposited into a "Community Service Supervision Fund" which shall be established by each county.  The moneys in the "Community Service Supervision Fund" shall be expended only in accordance with the provisions of State law as shall be enacted to provide for expenditures from this fund for the purpose of supervising and monitoring probationers performing community service to ensure, by whatever means necessary and appropriate, that probationers are performing the community service ordered by the court and that the performance is in the manner and under the terms ordered by the court. 


2C:45-2.     Period of Suspension or Probation; Modification of Conditions; Discharge of Defendant 
     a.   When the court has suspended imposition of sentence or has sentenced a defendant to be placed on probation, the period of the suspension shall be fixed by the court at not to exceed the maximum term which could have been imposed or more than 5 years whichever is lesser. The period of probation shall be fixed by the court at not less than 1 year nor more than 5 years. The court, on application of a probation officer or of the defendant, or on its own motion, may discharge the defendant at any time. 

    b.   During the period of the suspension or probation, the court, on application of a probation officer or of the defendant, or on its own motion, may (1) modify the requirements imposed on the defendants; or (2) add further requirements authorized by N.J.S.2C:45-1.  The court shall eliminate any requirement that imposes an unreasonable burden on the defendant. 

    c.   Upon the termination of the period of suspension or probation or the earlier discharge of the defendant, the defendant shall be relieved of any obligations imposed by the order of the court and shall have satisfied his sentence for the offense unless the defendant has failed: 

    (1)  to fulfill conditions imposed pursuant to paragraph b. (11) of N.J.S.2C:45-1, in which event the court may order that the probationary period be extended for an additional period not to exceed that authorized by subsection a. of this section; or 

    (2)  to fulfill the conditions imposed pursuant to subsection c. of N.J.S.2C:45-1, in which event the court shall order that the probationary period be extended for an additional period not to exceed that authorized by subsection a. of this section. 

    The extension may be entered by the court without the defendant's personal appearance if the defendant agrees to the extension. 

  2C:45-3.  Summons or arrest of defendant under suspended sentence or on probation;  commitment without bail;  revocation and resentence
    a.  At any time before the discharge of the defendant or the termination of  the period of suspension or probation:

    (1) The court may summon the defendant to appear before it or may issue a warrant for his arrest;

    (2) A probation officer or peace officer, upon request of the chief probation officer or otherwise having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the  order or that he has committed another offense, may arrest him without a warrant;

    (3) The court, if there is probable cause to believe that the defendant has  committed another offense or if he has been held to answer therefor, may commit  him without bail, pending a determination of the charge by the court having  jurisdiction thereof;

    (4) The court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if  he has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant, as provided in this section.  No revocation of suspension or probation shall be based on failure to  pay a fine or make restitution, unless the failure was willful.

    b.  When the court revokes a suspension or probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.

    c.  The commencement of a probation revocation proceeding shall toll the probationary period until termination of such proceedings. In the event that the court does not find a violation of probation, this subsection shall not operate to toll the probationary period.

2C:45-4.  Notice and hearing on revocation or modification of conditions of  suspension or probation
    The court shall not revoke a suspension of sentence or probation or delete,  add or modify conditions of probation except after a hearing upon written  notice to the defendant of the grounds on which such action is proposed.  The  defendant shall have the right to hear and controvert the evidence against him,  to offer evidence in his defense, and to be represented by counsel.

         Call our office to schedule a confidential consultation

KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
 2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax)  732-572-0030
                                    
TRIAL AND LITIGATION EXPERIENCE
         In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters.  He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings,  and contested administrative law hearings.

         Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and is involved in trials on a weekly basis.  He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey.
                 
         He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Hightstown, Carteret, East Brunswick, Jamesburg, South Brunswick,  South River and South Plainfield for conflict cases.  Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success.
                 
         Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen He represented all indigent individuals facing consequences of magnitude.  On a twice-weekly basis, he was in Court trying cases and making motions.   In 1990 and 1991, he represented approximately 250 clients and handled difficult criminal and motor vehicle matters.  Every case he personally handled and prepared.
                          
         His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients.
        

         Since 1985, his primary concentration has been on litigation matters.  Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court) with the Delaware County, PA District Attorney Office handling Probable Cause Hearings,  Middlesex County Probation Department  as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.  

Manual on sentencing end portion

Manual on sentencing

X. FINES 
Imposition of a fine is within the court's discretion (see section A), unless a statute requires a fine (see section B). Section C discusses case law on fines. source https://www.judiciary.state.nj.us/attorneys/assets/attyresources/manualsentencinglaw.pdf © 2017

Note: The Sixth Amendment requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). This rule applies to fines. Southern Union Co. v. United States, ___ U.S. ___, ___, 132 S. Ct. 2344, 2350, 183 L. Ed. 2d 318, 326 (2012). In the case of a guilty plea, the maximum sentence authorized by statute is the maximum sentence supported by the defendant's admissions. State v. Franklin, 184 N.J. 516, 537-38 (2005) (interpreting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)). The defendant may also "consent to judicial factfinding as to sentence enhancements." State v. Franklin, 184 N.J. 516, 538 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)). 
In Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013), the Court extended Apprendi to mandatory minimum terms. Thus, the jury, not the court, must find a fact that increases the mandatory minimum term. State v. Grate, 220 N.J. 317, 334-35 (2015) (finding invalid under Alleyne a mandatory parole disqualifier based on the court's finding that the defendant was involved in organized crime). No published New Jersey decision has yet to decide whether the Alleyne rule applies to fines. 
A.  Fines in General:  Statutory Provisions
1. Statutory Authority for Imposing a Fine. N.J.S.A. 2C:43- 2(b)(1) and (4) provide that the court may order the defendant to pay a fine alone or in conjunction with imprisonment or probation. 
2. Criteria for Imposing a Fine. Pursuant to N.J.S.A. 2C:44- 2(a), the court may impose a fine if: 
123 
  • ·  the defendant derived a pecuniary gain from the offense or the court believes that "a fine is specially adapted to deterrence of the type of offense involved or to the correction of the offender"; and 

  • ·  the defendant is able, or will be able, to pay the fine; and 

  • ·  the fine will not prevent the defendant from complying with a restitution order. 
    The court must consider the defendant's financial resources and the burden a fine will impose on those resources. N.J.S.A. 2C:44-2(c)(1). 
    3. Fine Amounts. N.J.S.A. 2C:43-3(a) to (h) provide the maximum fines as follows: 
         (a)(1)  First degree crime:  $200,000;

  •      (a)(2)  Second degree crime:  $150,000;

  •      (b)(1)  Third degree crime:  $15,000;

  •      (b)(2)  Fourth degree crime:  $10,000;

  •      (c)  Disorderly persons offense:  $1000;

  •      (d)  Petty disorderly persons offense:  $500;

  • (e) "Any higher amount equal to double the pecuniary gain to the offender or loss to the victim"; 
    (f) "Any higher amount specifically authorized by another section of this code or any other statute"; 
    (g) "Up to twice the amounts authorized in subsection a., b., c. or d. of this section, in the case of a second or subsequent conviction of any tax offense defined in Title 54 of the Revised Statutes or Title 54A of the New Jersey Statutes, as amended and supplemented, or of any offense defined in chapter 20 or 21 of this code"; and 
    (h) Three times the street value of a controlled dangerous substance for drug crimes under Chapter 35. See N.J.S.A. 

124 
2C:44-2(e) (setting forth the procedure to determine street value and the standard of appellate review). 
4. Timing of Payment. N.J.S.A. 2C:46-1(a) provides that the fine shall be "payable forthwith" unless the court granted "permission for the payment to be made within a specified period of time or in specified installments." "[T]he court shall file a copy of the judgment of conviction with the Clerk of the Superior Court." Ibid. See also N.J.S.A. 2C:46-1(d); N.J.S.A. 2C:46-1.1 (imposing transactional fees on fines). 
(a) Probation. The court may order continued payments a condition of probation. N.J.S.A. 2C:46-1(b)(1). 
(b) Installments and Imprisonment. Where the defendant is sentenced to a term of imprisonment, the court may order the defendant to pay installments. N.J.S.A. 2C:46-1(b)(2). 
5. Nonpayment. N.J.S.A. 2C:46-2 sets forth the rules regarding failure to pay. The State may institute a summary collection action, or take any other authorized action for the collection of a civil judgment. N.J.S.A. 2C:46-2(a) and (b). If the default is without good cause, the court shall order the suspension of the defendant's driver's license or prohibit the defendant from obtaining a license, and take "such other actions as may be authorized by law." N.J.S.A. 2C:46-2(a)(1)(a) to (d). 
Willful Nonpayment. If the defendant's default was without good cause and was willful, the court may imprison the defendant or order participation in a labor assistance program or enforced community service. N.J.S.A. 2C:46- 2(a)(2). 
6. Petition to Revoke a Fine. N.J.S.A. 2C:46-3 provides that a defendant may petition the court "for a revocation of the fine or of any unpaid portion thereof." The court may grant the request if it finds that "the circumstances which warranted the imposition of the fine have changed, or that it would otherwise be unjust to require payment." 
B. Specific Fines Authorized, or Required, by Law: Statutory Provisions 
1. Human Trafficking. N.J.S.A. 2C:13-8(d) requires a fine not less than $25,000 for a first degree crime. N.J.S.A. 2C:13- 
125 
9(c)(1) requires a fine not less than $15,000 for a second degree crime. 
2. Assisting in Human Trafficking. N.J.S.A. 2C:13-9(c)(1) mandates a fine of at least $15,000. 
3. Commercial Sexual Abuse of a Minor. N.J.S.A. 2C:13-10(c) provides that a person who commits the offense of advertising commercial sexual abuse of a minor, contrary to N.J.S.A. 2C:13- 10(b), shall be ordered to pay a fine of at least $25,000, which shall be deposited in the Human Trafficking Survivor's Assistance Fund. 
4. Pornography. N.J.S.A. 2C:14-9(c) authorizes "a fine not to exceed $30,000" for a third degree pornography offense. 
5. Burglary. N.J.S.A. 2C:18-6(b) requires a fine of at least $500 for third degree burglary, $200 for fourth degree burglary, and $100 for a disorderly persons offense of burglary. 
6. Auto Theft. N.J.S.A. 2C:20-2.2 provides that where the value of the stolen auto exceeds $7500 and the auto is not recovered, the court may award a fine equal to the value of the vehicle. 
7. Removal of Headstones and Markers from Gravesites. 
N.J.S.A. 2C:20-2.3(b) allows a fine up to $1000 for each stolen maker. 
8. Leader of a Cargo Theft Network. N.J.S.A. 2C:20-2.4(a)(2) provides that for first degree leader of a cargo theft network, the court may impose a fine of up to $500,000, or five times the retail value of the property seized, whichever is great. If the crime is one of the second degree, the fine shall not exceed $250,000, or five times the retail value of the property seized, whichever is greater. N.J.S.A. 2C:20-2.4(a)(1). 
9. Theft From a Cargo Carrier. N.J.S.A. 2C:20-2.6(b) authorizes a fine up to $250,000, or five times the retail value of the stolen property, whichever is greater, for theft from a cargo carrier. 
10. Theft of Services. N.J.S.A. 2C:20-8(k) requires a $500 minimum fine for each theft of services offense. 
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11. Leader of Organized Retail Theft Enterprise. N.J.S.A. 2C:20-11.2 provides that "the court may impose a fine not to exceed $250,000 or five times the retail value of the merchandise seized at the time of the arrest, whichever is greater." 
12. Leader of Auto Theft Trafficking Network. N.J.S.A. 2C:20- 18 authorizes "a fine not to exceed $250,000 or five times the retail value of the automobiles seized at the time of the arrest, whichever is greater." 
13. Theft of Electronic Vehicle Identification System Transponder. N.J.S.A. 2C:20-38 requires "a fine of not less than $500 nor more than $10,000" for theft of an electronic vehicle identification system transponder. 
14. Health Care Claims Fraud. N.J.S.A. 2C:21-4.3(a) and (b) authorize "a fine of up to five times the pecuniary benefit obtained or sought to be obtained" for a practitioner convicted of second and third degree health care claims fraud. The court must impose on a non-practitioner convicted of a second, third or fourth degree offense, "a fine of up to five times the pecuniary benefit obtained or sought to be obtained." N.J.S.A. 2C:21-4.3(c) and (d). 
15. Business of Criminal Usury. N.J.S.A. 2C:21-19(b) mandates a fine not to exceed $250,000 for business of criminal usury. 
16. Pirating Recordings. N.J.S.A. 2C:21-21(d) allows for the following fines: 
  • ·  Up to $250,000 if the offense involved "at least 1000 unlawful sound recordings or at least 65 audiovisual works within any 180-day period"; 

  • ·  Up to $150,000 if the offense involved "more than 100 but less than 1000 unlawful sound recordings or more than 7 but less than 65 unlawful audiovisual works within any 180-day period"; 

  • ·  If the offense is not covered by the foregoing provisions, then up to $25,000 for a first offense, up to $50,000 for a second offense, and up to $100,000 for a third and subsequent offense. 

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17. Money Laundering. N.J.S.A. 2C:21-27(a) allows the court to impose a fine not to exceed $500,000 for money laundering. 
18. Trademark Counterfeiting. N.J.S.A. 2C:21-32(d) requires the court to impose a fine "up to threefold the retail value of the items or services involved, providing that the fine imposed shall not exceed the following amounts: for a crime of the fourth degree, $100,000; for a crime of the third degree, $250,000; and for a crime of the second degree, $500,000." 
19. Unlawful Disposition of Human Body Parts. N.J.S.A. 2C:22- 2(a) and (b) authorize a fine not to exceed $50,000 for unlawful disposition of human body parts. 
20. Harm to a Law Enforcement Animal. N.J.S.A. 2C:29-3.1(a) requires a $15,000 fine for the purposeful killing of a law enforcement animal. N.J.S.A. 2C:29-3.1(d) requires a $1000 fine for interfering with the use of a law enforcement animal. 
21. False Public Alarms. N.J.S.A. 2C:33-3.2 provides that the defendant "shall be liable for a civil penalty of not less than $2000 or actual costs incurred by or resulting from the law enforcement and emergency services response to the false alarm, whichever is higher." 
22. Parent or Guardian's Failure to Comply With an Order Regarding Cyber Harassment. N.J.S.A. 2C:33-4.1(d) provides that "[a] parent or guardian who fails to comply with a condition imposed by the court pursuant to subsection c. of this section" (applicable to parents and guardians of minors age sixteen and under who were adjudicated delinquent for cyber harassment) "shall be fined not more than $25 for a first offense and not more than $100 for each subsequent offense." 
23. Smoking in Public. N.J.S.A. 2C:33-13(b) provides a $200 maximum fine for smoking in a prohibited public place. 
24. Sale of Cigarettes to a Person Under Age Nineteen. 
N.J.S.A. 2C:33-13.1(a) requires the court to impose a fine as provided for a petty disorderly persons offense (i.e. a fine up to $500) if the defendant sold or otherwise provided tobacco to a person under age nineteen. The court may impose a fine of twice that applicable to a petty disorderly persons offense for a person convicted of a subsequent offense. 
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25. Under-Age Drinking. N.J.S.A. 2C:33-15(a) requires a fine of at least $500 for under-age drinking. 
26. Leader of Narcotics Trafficking Network. N.J.S.A. 2C:35-3 provides that the court may "impose a fine not to exceed $750,000 or five times the street value of the controlled dangerous substance, controlled substance analog, gamma hydroxybutyrate or flunitrazepam involved, whichever is greater." 
27. Maintaining or Operating a Drug Production Facility. 
N.J.S.A. 2C:35-4 allows "a fine not to exceed $750,000 or five times the street value of all controlled dangerous substances, controlled substance analogs, gamma hydroxybutyrate or flunitrazepam at any time manufactured or stored at such premises, place or facility, whichever is greater." 
28. Manufacturing and Distributing a Controlled Dangerous Substance. N.J.S.A. 2C:35-5(b) authorizes a fine up to $300,000 or $500,000, depending on the offense, for first degree drug manufacturing and distribution; $25,000 or $75,000 for a third degree crime (depending on the offense); and $25,000 for certain fourth degree crimes. 
29. Manufacturing and Dispensing Gamma Hydroxybutyrate. 
N.J.S.A. 2C:35-5.2(b) authorizes a fine up to $150,000 for manufacturing and dispensing gamma hydroxybutyrate. 
30. Manufacturing and Dispensing Flunitrazepam. N.J.S.A. 2C:35-5.3(b) and (c) allows a fine not to exceed $250,000 for first degree manufacturing and dispensing flunitrazepam, and $150,000 for a second degree offense. 
31. Employing a Juvenile in a Drug Distribution Scheme. 
N.J.S.A. 2C:35-6 allows "a fine not to exceed $500,000 or five times the street value of the controlled dangerous substance or controlled substance analog involved, whichever is greater," for employing a juvenile in a drug distribution scheme. 
32. Manufacturing, or Dispensing Drugs on or Near School Property. N.J.S.A. 2C:35-7(a) authorizes a fine not to exceed $150,000 for manufacturing and distributing drugs on or near school property. 
33. Drug Distribution to a Minor or a Pregnant Female. 
N.J.S.A. 2C:35-8 requires the court to impose, upon application 129 
of the prosecutor, "twice the term of imprisonment, fine and penalty, including twice the term of parole ineligibility, if any." If the defendant is convicted of more than one offense, the court must impose one enhanced sentence on the most serious offense. Ibid. The prosecutor must establish the basis for the enhanced sentence by a preponderance of the evidence, and the court must hold a hearing on the matter. Ibid. 
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject to waiver under N.J.S.A. 2C:35-12. See Chapter XIV on drug offender sentencing for additional discussion. 
34. Possession of a Controlled Dangerous Substance or Analog. 
N.J.S.A. 2C:35-10(a)(1) to (3) authorize a fine not to exceed $35,000 for third degree drug possession, and $15,000, or $25,000 for a fourth degree crime, depending on the circumstances. 
35. Possession of Gamma Hydroxybutyrate. N.J.S.A. 2C:35- 10.2(b) authorizes a fine up to $100,000 for possession of gamma hydroxybutyrate. 
36. Possession of Flunitrazepam. N.J.S.A. 2C:35-10.3(b) allows a fine up to $100,000 for possession of flunitrazepam. 
37. Distribution of a Prescription Legend Drug. N.J.S.A. 2C:35-10.5(a)(3) and (4) authorize a fine of up to $200,000 or $300,000, depending on the circumstances, for distribution of a prescription legend drug. 
38. Possession or Distribution of an Imitation Controlled Dangerous Substance. N.J.S.A. 2C:35-11(d) authorizes a fine not to exceed $200,000 for possession or distribution of an imitation drug. 
39. Obtaining a Controlled Dangerous Substance by Fraud. 
N.J.S.A. 2C:35-13 allows a fine up to $50,000 for fraudulently obtaining a drug. 
40. Promoting Gambling. N.J.S.A. 2C:37-2(b)(2) requires a fine not to exceed $35,000 for third degree promoting gambling, $25,000 for a fourth degree crime, and $10,000 for a disorderly persons offense. 
41. Possession of Gambling Records. N.J.S.A. 2C:37-3(b)(2) requires a fine not to exceed $35,000 for third degree 
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possession of gambling records, $20,000 for fourth degree crime, and $10,000 for a disorderly person offense. 
42. Maintenance of a Gambling Resort. N.J.S.A. 2C:37-4(a) and (b) mandate a fine not to exceed $25,000 for maintaining a gambling resort. 
43. Producing or Possessing Chemical, Biological, or Radioactive Agents. N.J.S.A. 2C:38-3(b) requires a "fine of up to $250,000 for each violation" for possession or production of chemical, biological, or radioactive agents. 
44. Leader of Firearms Trafficking Network. N.J.S.A. 2C:39-16 provides that the court may also impose on the leader of a firearms trafficking network "a fine not to exceed $500,000 or five times the value of the firearms involved, whichever is greater." 
45. Production, Delivery of Ignition Key, Documentation Required. N.J.S.A. 2C:40-23(d) authorizes a fine not to exceed $2000 for delivering a motor vehicle key without proper identification of the recipient. 
46. Unlawfully Dispensing of Contact Lenses. N.J.S.A. 2C:40- 25(b)(1) to (3) require the following fines for unlawfully dispensing contact lenses: at least $1000 for a first offense; not less than $5000 and 40 hours of community service for a second offense; and at least $10,000 and 100 hours of community service for a third and each subsequent offense. 
47. Crimes Committed While Released on Bail or on One's Recognizance. N.J.S.A. 2C:44-5.1(a) requires the court impose an extended term of imprisonment and double the fine required for the underlying crime, for any of the following offenses if the defendant committed the offense while released on bail or on his or her own recognizance: 
  • ·  Possession of a firearm with intent to use it unlawfully against the person or property of another (N.J.S.A. 2C:39-4(a)); 

  • ·  Murder (N.J.S.A. 2C:11-3); 

  • ·  Manslaughter (N.J.S.A. 2C:11-4); 

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  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)); 

  • ·  Robbery (N.J.S.A. 2C:15-1); 

  • ·  Second degree burglary, or burglary of a structure adapted for overnight accommodations (N.J.S.A. 2C:18-2); or 

  • ·  First, second, or third degree assault (N.J.S.A. 2C:12- 1(b). 
    Notice and Hearing. The prosecutor must provide the defendant notice of intent to request a sentence under N.J.S.A. 2C:44-5.1 within fourteen days of a guilty plea or verdict. R. 3:21-4(f); N.J.S.A. 2C:44-5.1(b). The prosecutor must establish the basis for the sentence at a hearing. N.J.S.A. 2C:44-5.1(b). 
    C.  Standards Regarding Fines:  Case Law

  • 1. Purpose of a Fine. Unlike restitution, a court imposes a fine to punish the defendant and to deter conduct that causes social harm. State v. Newman, 132 N.J. 159, 177 (1993). 
    2. Future Earnings. While N.J.S.A. 2C:44-2(c) "focus[es] on defendant's present financial condition," in determining the amount of a fine, the statute "does not exclude consideration of defendant's future financial circumstances." State v. Newman, 132 N.J. 159, 179 (1993). 
    3. Findings. The court must state on the record its reasons for imposing a fine. State v. Newman, 132 N.J. 159, 170 (1993); State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 138 N.J. 265 (1994). 

4. Drug Offender Fines.
(a) Drug-Buy Money. 
The court may consider money the 
defendant received in selling drugs when determining the 132 
defendant's ability to pay a fine. State v. Newman, 132 N.J. 159, 177-79 (1993). 
(b) Order of Payment. A defendant convicted of a drug offense must pay the Victims of Crime Compensation Board (N.J.S.A. 2C:43-3.1), laboratory fee (N.J.S.A. 2C:35-20), and the drug enforcement and demand reduction penalty (N.J.S.A. 2C:35-15) before paying a fine. State v. Newman, 132 N.J. 159, 178 (1993). For further discussion, see Chapter XII on penalties, fees and assessments, and Chapter XIV on drug offender sentencing. 
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                XI.  RESTITUTION
The court may exercise its discretion to require the defendant to make restitution to the victim (see section A), unless a statute requires restitution (see section B). Section C discusses case law on restitution. 
A.  Restitution in General:  Statutory Provisions
1. General Statutory Authority for Imposing Restitution. 
N.J.S.A. 2C:44-2(b)(1) and (2) provide that a court "shall" order a defendant to make restitution if the victim "suffered a loss" and "[t]he defendant is able to pay or, given a fair opportunity, will be able to pay." See also N.J.S.A. 2C:43- 2(b)(1) and (4) (authorizing a restitution award in addition to any fine or other sentence); N.J.S.A. 2C:45-1(c) (providing for restitution as a condition of probation or sentence suspension); N.J.S.A. 2C:46-1(a) and (b)(2) (providing for restitution installment payments); N.J.S.A. 2C:1-2(b)(8) (stating that restitution to victims is one purpose of the sentencing laws). 
2. Amount of Restitution. N.J.S.A. 2C:43-3(h) provides that the restitution amount "shall not exceed the victim's loss." In cases involving the failure to pay a State tax, the amount of restitution shall be the full amount of the tax plus civil penalties and interest. N.J.S.A. 2C:43-3(h). 
3. Restitution Is Conditioned Upon Loss to a Victim and Defendant's Ability to Pay. N.J.S.A. 2C:44-2(b)(1) and (2) condition a restitution award on the victim's suffering a loss and the defendant's ability to pay. 
4. Restitution Is Unaffected by the Victim's Recovery From the Violent Crimes Compensation Board. N.J.S.A. 2C:44-2(c)(2) instructs: "The court shall not reduce a restitution award by any amount that the victim has received from the Violent Crimes Compensation Board, but shall order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board." 
5. Multiple Victims. N.J.S.A. 2C:44-2(c)(2) requires the court to set priorities of payment if it orders restitution to more than one victim. 
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6. Findings. N.J.S.A. 2C:43-2(e) requires the court to place on the record its rationale for imposing the sentence. 
7. Timing of Payment. N.J.S.A. 2C:46-1(a) provides that restitution shall be "payable forthwith" unless the court granted "permission for the payment to be made within a specified period of time or in specified installments." "[T]he court shall file a copy of the judgment of conviction with the Clerk of the Superior Court." Ibid. See also N.J.S.A. 2C:46- 1.1 (imposing transactional fees on restitution payments). 
(a) Probation. The court may order continued payments as a condition of probation. N.J.S.A. 2C:46-1(b)(1). 
(b) Installments and Imprisonment. Where the defendant is sentenced to a term of imprisonment, the court may order the defendant to make restitution installment payments. N.J.S.A. 2C:46-1(b)(2). 
8. Nonpayment. In the event the defendant fails to pay restitution, the State may institute a summary collection action, or take any other authorized action for the collection of a civil judgment. N.J.S.A. 2C:46-2(a) and (b). The victim may also institute summary collection proceedings. N.J.S.A. 2C:46-2(c). 
(a) Default Without Good Cause. If after notice and opportunity to be heard, the court finds by a preponderance of the evidence that the default was without good cause, the court shall order the suspension of the defendant's driver's license or prohibit the defendant from obtaining a license, and shall take "such other actions as may be authorized by law." N.J.S.A. 2C:46-2(a)(1)(a) and (d). 
(b) Willful Default Without Good Cause. If the defendant's default was without good cause and was willful, the court may impose a term of imprisonment, community service, or participation in a labor assistance program. N.J.S.A. 2C:46-2(a)(2). 
B. Mandatory and Specific Restitution: Statutory Provisions 
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1. Murder. N.J.S.A. 2C:11-3(c) requires the defendant to "pay restitution to the nearest surviving relative of the victim." 
2. Interference With Custody. N.J.S.A. 2C:13-4(f)(1) requires the court to order restitution "of all reasonable expenses and costs, including reasonable counsel fees, incurred by the other parent in securing the child’s return. " 
3. Human Trafficking. N.J.S.A. 2C:13-8(e)(1) and (2) require the court to award the victim restitution which is the greater of (1) "the gross income or value to the defendant of the victim's labor or services," or (2) "the value of the victim's labor or services as determined by" law. 
4. Graffiti Offenses. The following statutes require a restitution award in the amount of the pecuniary damage the defendant caused: N.J.S.A. 2C:17-3(c) and (e), N.J.S.A. 2C:33-10, N.J.S.A. 2C:33-11, and N.J.S.A. 2C:33-14.1(b). 
5. Burglary. N.J.S.A. 2C:18-6(b) requires the court to order restitution to the burglarized victim. 
6. Theft of Services. N.J.S.A. 2C:20-8(k) requires the defendant to make restitution to the vendor. "In determining the amount of restitution, the court shall consider the costs expended by the vendor, including but not limited to the repair and replacement of damaged equipment, the cost of the services unlawfully obtained, investigation expenses, and attorney fees." Ibid. 
7. Theft of Personal Identifying Information. N.J.S.A. 2C:21- 17.1 authorizes the restitution award to include costs incurred by the victim in clearing credit. 
8. Forgery. N.J.S.A. 2C:21-17.4(c) requires the court, upon request by the prosecutor, to impose restitution, which may include reimbursement for expenses incurred in clearing credit history or rating, and pursuing civil or administrative proceedings to satisfy a debt. 
9. Violation of Minimum Wage Provisions for Employees Engaged in Public Works. N.J.S.A. 2C:21-34(c) requires restitution in the amount owed to the employee. 
10. Interfering With a Law Enforcement Officer and Animal. 
N.J.S.A. 2C:29-3.1(d) requires the court to impose restitution 136 
where the defendant interfered with the use of a law enforcement animal. 
11. Offenses Against Service Animals. N.J.S.A. 2C:29-3.2(d) requires restitution "for all damages that arise out of or are related to the offense, including incidental and consequential damages incurred by the handler of the service animal or guide dog." 
12. Dog Fighting. N.J.S.A. 2C:33-31(b)(1)(b) (effective Aug. 10, 2015) requires restitution for the animal's food, shelter, and care. 
13. Leader of a Dog Fighting Network. N.J.S.A. 2C:33- 32(b)(1)(b) (effective Aug. 10, 2015) requires restitution for the animal's food, shelter, and care. 
14. Auto Theft. N.J.S.A. 2C:43-2.1 requires a restitution award to be paid to the owner of the stolen car to compensate for expenses and damages incurred as a result of the auto theft. 
15. State as Victim. N.J.S.A. 2C:43-3(h) requires the court to order restitution where the State is the victim of the crime. 
16. Extradition Costs. N.J.S.A. 2C:43-3.4 provides that the court may order restitution "for costs incurred by any law enforcement entity in extraditing the defendant from another jurisdiction if the court finds that, at the time of the extradition, the defendant was located in the other jurisdiction in order to avoid prosecution for a crime committed in this State or service of a criminal sentence imposed by a court of this State." 
17. Probation or Suspension of Sentence. N.J.S.A. 2C:45-1(c) provides that the court shall order the defendant to pay restitution where the court imposes probation or suspends the defendant's sentence. 
C. Standards Regarding Restitution: Case Law 
1. Purpose of a Restitution Award. "Our Criminal Code contemplates two goals from a restitution order: restoration of the victim and rehabilitation of the offender." State v. Scribner, 298 N.J. Super. 366, 371 (App. Div.), certif. denied, 150 N.J. 27 (1997). Restitution is predominantly non-penal in 
137 
nature, though it may serve a rehabilitative purpose by deterring criminal conduct. State v. Harris, 70 N.J. 586, 593 (1976); State v. DeAngelis, 329 N.J. Super. 178, 186-88 (App. Div. 2000); State v. Krueger, 241 N.J. Super. 244, 253 (App. Div. 1990). See also State v. Newman, 132 N.J. 159, 164-69 (1993) (discussing the historical distinction between fines and restitution). "Imposing a sentence of restitution that requires payment of more than a defendant can afford would frustrate the goal of rehabilitation." State v. Newman, 132 N.J. 159, 173 (1993). 
2. Burden of Proof. The State bears the burden of establishing the victim's loss by a preponderance of the evidence. State v. Martinez, 392 N.J. Super. 307, 320 (App. Div. 2007). The court may accept a reasonable estimate of the victim's loss when the State cannot calculate it with precision. Ibid. The presentence report should address and explain the victim's losses and the defendant's ability to pay. State In the Interest of D.G.W., 70 N.J. 488, 503-05 (1976). 
3. Hearing. Ordinarily, the court should conduct a hearing to determine the defendant's ability to pay and the value of the victim's loss. State v. Newman, 132 N.J. 159, 169 (1993); State v. Martinez, 392 N.J. Super. 307, 321-22 (App. Div. 2007). But if neither party disputes the victim's loss and the defendant's ability to pay, a hearing may be futile. State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif. denied, 170 N.J. 210 (2001); State in Interest of R.V., 280 N.J. Super. 118, 122- 24 (App. Div. 1995); State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994). 
Evidence. Strict rules of evidence do not apply to a restitution hearing. State v. Harris, 70 N.J. 586, 598 (1976). The defendant may cross-examine witnesses, present evidence and challenge the presentence report. Ibid.; State In the Interest of D.G.W., 70 N.J. 488, 506 (1976). 
4. Fixed Amount. A restitution award should be a fixed amount. State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif. denied, 170 N.J. 210 (2001). It should not be conditioned upon an "unknown credit" in the amount that a codefendant might pay. Ibid. 
5. Present Inability to Pay. The court may order restitution if the defendant is presently unable to pay, but will likely be able to pay in the future. State in the Interest of R.V., 280 
138 
N.J. Super. 118, 121-22 (App. Div. 1995). In this case, the court should reduce the restitution award to a civil judgment, subject to future enforcement. Id. at 123. 
6. Pension Income. In setting a restitution amount, the court may consider the defendant's pension income. State v. Pulasty, 136 N.J. 356, 361 (holding that the non-alienability clause of the Employee Retirement Income Security Act of 1974 (ERISA) does not prevent the State from requiring a defendant to make restitution after pension funds have been distributed), cert. denied, 513 U.S. 1017, 115 S. Ct. 579, 130 L. Ed. 2d 494 (1994). 
7. Pecuniary Gain Unnecessary. In order to impose a restitution order the court need not find that the defendant derived a pecuniary gain from the crime. State v. Martinez, 392 N.J. Super. 307, 320 (App. Div. 2007). 
8.   Multiple Defendants.
(a) Proportionality. Where a defendant was one of multiple defendants who committed the crime, there is "a rebuttable presumption of proportionate liability against the" defendant. State In the Interest of D.G.W., 70 N.J. 488, 508 (1976). 
(b) Joint and Several Liability. The court may impose joint and several liability where the facts justify it. Id. at 508 n.5 (1976); State v. Pessolano, 343 N.J. Super. 464, 479 n.10 (App. Div.), certif. denied, 170 N.J. 210 (2001); State v. Scribner, 298 N.J. Super. 366, 371 (App. Div.), certif. denied, 150 N.J. 27 (1997). 
9.   Crimes Against the State.
(a) Corporate Officers and Taxes. N.J.S.A. 2C:43-3, "reveals a strong legislative intention to require full restitution from those who defraud the public," including corporate officers who fail to remit taxes on behalf of their corporations. State v. Paone, 290 N.J. Super. 494, 496-97 (App. Div. 1996). 
(b) Drug-Buy Money. The State is not a "victim" when the prosecutor's office purchases drugs from a defendant as part of an undercover investigation. Thus, the court may not impose restitution as a sanction to recover drug-buy money. State v. Newman, 132 N.J. 159, 176-77 (1993). 
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10. Third-Party Recovery. The court may order the defendant to pay restitution to a third party, such as an insurance company, health provider or employer who reimbursed a victim for losses suffered as a result of the defendant's criminal conduct. State v. Jones, 347 N.J. Super. 150, 153-54 (App. Div.), certif. denied, 172 N.J. 181 (2002) (interpreting N.J.S.A. 2C:43-2.1); State v. Hill, 155 N.J. 270, 275-76 (1998) (interpreting N.J.S.A. 2C:43-(e)). 
11.  Plea Agreements.
(a) Disclosure. When accepting a plea, a court should advise the defendant on the restitution implications of the guilty plea. State v. Kennedy, 152 N.J. 413, 425-26 (1998); State v. Krueger, 241 N.J. Super. 244, 255 (App. Div. 1990); State v. Saperstein, 202 N.J. Super. 478, 482 (App. Div. 1985). 
(b) Dismissed Charges. A court may not impose restitution for a crime that the State dismissed in a plea agreement, unless there is (1) "a relationship between the restitution and the goal of rehabilitation with respect to the offense for which the defendant is being sentenced," and (2) "an adequate factual basis supportive of the restitution." State v. Krueger, 241 N.J. Super. 244, 252 (App. Div. 1990) (quoting State v. Bausch, 83 N.J. 425, 435 (1980)); State v. Corpi, 297 N.J. Super. 86, 91-92 (App. Div.), certif. denied, 149 N.J. 407 (1997). 
12. Pretrial Intervention Program. The court may impose restitution as a condition of the pretrial intervention program. State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994) (analogizing the pretrial intervention program with probation). 
13. Appellate Review. Restitution is within the court's discretion and thus will not be reversed on appeal unless it amounts to an abuse of discretion. State v. Harris, 70 N.J. 586, 598-99 (1976); State v. Martinez, 392 N.J. Super. 307, 318- 19 (App. Div. 2007). 
14. Resentencing After a Probation Violation. If the defendant violated a term of probation and the court revokes probation and imposes a term of imprisonment, the court may reconsider its initial restitution award, but need not do so. State v. Zeliff, 236 N.J. Super. 166, 171 (App. Div. 1989). 
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15. Double Jeopardy. A restitution award may be increased on resentencing after remand without offending double jeopardy principles. State v. Rhoda, 206 N.J. Super. 584, 590 (App. Div.), certif. denied, 105 N.J. 524 (1986). 
16. Cruel and Unusual Punishment. A restitution order does not violate the Federal or State constitutional prohibition against cruel and unusual punishment, even if the defendant entered a civil settlement agreement with the victim. State v. DeAngelis, 329 N.J. Super. 178, 189-90 (App. Div. 2000). 
17. Payment Collection. The procedure for collecting restitution is governed by the Model Collection Process by the Chief Probation Officers, approved by the Administrative Office of the Courts as of September 22, 1997. Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382, 389-90 (App. Div. 2008), certif. granted, 203 N.J. 440 (2010). See also Cannel, New Jersey Criminal Code Annotated, comment 7 on N.J.S.A. 2C:44- 2 at 1215 (2016-2017). 
18. Order of Payments. According to the guidelines, "where there are multiple convictions, assessments are to be paid off chronologically, by the date of the restitution order. All assessments for the earliest conviction are to be collected and disbursed first, before moving on to the next-in-time judgment of conviction." Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382, 390 (App. Div. 2008), certif. granted, 203 N.J. 440 (2010). 
(a) Victim's Rights. The first-in-time policy does not violate a victim's rights under the New Jersey Civil Rights Act or the federal or State due process or equal protection clauses. Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382, 397-401 (App. Div. 2008), certif. granted, 203 N.J. 440 (2010). 
(b) Multiple Orders in One Day. "[W]hen multiple restitution orders are issued against a criminal defendant on the same day, . . . the restitution orders are processed based on the date of the indictment with which each is associated, with the earliest indictment being entered first." Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382, 391 (App. Div. 2008), certif. granted, 203 N.J. 440 (2010). Restitution payments will be distributed on a pro-rated basis "only when a court specifically so orders, 
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or there are multiple victims listed on the same restitution order." Ibid. 
(c) Court's Discretion. In the exercise of discretion, a sentencing judge "may order a different priority based on the amount of restitution owed to, or the financial circumstances of, the requesting recipient, or may even order that restitution payments be disbursed regardless of the recipient's individual circumstances on a pro-rata basis." Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382, 395 (App. Div. 2008), certif. granted, 203 N.J. 440 (2010). 
19. Civil Damages. A restitution order does not preclude a victim from obtaining civil damages against the defendant. State v. Harris, 70 N.J. 586, 597-98 (1976). However, if the victim obtains a civil judgment, the award must be reduced by any restitution the victim received to avoid a double recovery. State v. DeAngelis, 329 N.J. Super. 178, 184 (App. Div. 2000). 
20. Bankruptcy. Where a restitution order is converted to a civil judgment in favor of the State, the debt may not be discharged in a bankruptcy proceeding. State v. Kemprowski, 265 N.J. Super. 471, 472-74 (App. Div. 1993). 
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     XII.  PENALTIES, FEES, ASSESSMENTS AND
                  REGISTRATIONS
Penalties, fees, assessments, and registrations are required by statute (see section A). Unless the court authorizes otherwise, with respect to a monetary penalty, a fee, or an assessment, a defendant is expected to make payment in full following sentencing (see section B). Section C discusses relevant case law. 
Note: The Sixth Amendment requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). In the case of a guilty plea, the maximum sentence authorized by statute is the maximum sentence supported by the defendant's admissions. State v. Franklin, 184 N.J. 516, 537-38 (2005) (interpreting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)). The defendant may also "consent to judicial factfinding as to sentence enhancements." State v. Franklin, 184 N.J. 516, 538 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)). In Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013), the Court extended Apprendi to mandatory minimum terms. Thus, the jury, not the court, must find a fact that increases the mandatory minimum term. State v. Grate, 220 N.J. 317, 334-35 (2015) (finding invalid under Alleyne a mandatory parole disqualifier based on the court's finding that the defendant was involved in organized crime). No published New Jersey decision has yet to decide whether these rules apply to penalties, fees, and assessments. However, in Southern Union Co. v. United States, ___ U.S. ___, ___, 132 S. Ct. 2344, 2350, 183 L. Ed. 2d 318, 326 (2012), the Court found Apprendi applicable to fines. 
A. Penalties, Fees, Assessments and Registrations: Statutory Provisions 
1. Registration Requirements and Penalties for "Sex Offenders" (also known as Megan's Law). 
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(a) Megan's Law Registration Requirements. N.J.S.A. 2C:7- 1 to -23 sets forth registration and public notification requirements for a person who committed a "sex offense." Pursuant to N.J.S.A. 2C:7-2(b), a sex offense includes the following crimes: 
  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Sexual assault (N.J.S.A. 2C:14-1)); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14- 3(a); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1(c)(2)); 

  • ·  Endangering the welfare of a child by engaging in sexual conduct that would impair or debauch the morals of the child (N.J.S.A. 2C:24-4(a)); 

  • ·  Endangering the welfare of a child (N.J.S.A. 2C:24- 4(b) (3) or (4) or (5)(a)); 

  • ·  Luring or enticing a child (N.J.S.A. 2C:13-6); 

  • ·  Criminal sexual contact of a minor (N.J.S.A. 2C:14- 
    3(b); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Criminal restraint (N.J.S.A. 2C:13-2); 

  • ·  False imprisonment "if the victim is a minor and the offender is not the parent of the victim" (N.J.S.A. 2C:13-3; and 

  • ·  Knowingly promoting prostitution of a child (N.J.S.A. 2C:34-1(b)(3) or (4)). 

Failure to comply with Megan's Law registration requirements is a third degree crime. N.J.S.A. 2C:7- 2(d)(1) and (2). 
(b) Megan's Law Penalties. N.J.S.A. 2C:14-10(a) provides that in addition to any other fine, fee, assessment or penalty authorized by Title 2C, a person convicted of a sex 
144 
offense, as defined by N.J.S.A. 2C:7-2(b), "shall be assessed a penalty for each such offense not to exceed:" 
· $2000 for a first degree crime;
· $1000 for a second degree crime;
· $750 for a third degree crime; and · $500 for a fourth degree crime. 
2. Death by Auto or Vessel. N.J.S.A. 2C:11-5(b)(4) requires the court to impose a suspension to operate a motor vehicle for a period between five years to life, to commence upon the expiration of any prison term, if the defendant committed the homicide while operating a vehicle in violation of N.J.S.A. 39:4-50 (driving while intoxicated) or N.J.S.A. 39:4-50.4(a) (revocation for refusal to submit to breath test). N.J.S.A. 2C:11-5(e) provides that if the defendant committed first degree vehicular homicide (N.J.S.A. 2C:11-5(b)(3)), the defendant shall forfeit the auto or vessel, unless the defendant can establish by a preponderance of evidence that forfeiture would constitute a serious hardship to the family of the defendant, which outweighs the need to deter. 
3. Stalking. N.J.S.A. 2C:12-10.1(a) provides that "[a] judgment of conviction for stalking shall operate as an application for a permanent restraining order limiting the contact of the defendant and the victim who was stalked." Unless the victim requests otherwise, the court must hold the hearing on the restraining order at the time of the guilty plea or verdict. N.J.S.A. 2C:12-10.1(b). 
4. Assisting in Human Trafficking. N.J.S.A. 2C:13-9(c)(2) provides that "the court shall direct any issuing State, county, or municipal governmental agency to revoke any license, permit, certificate, approval, registration, charter, or similar form of business or professional authorization required by law concerning the operation of that person's business or profession, if that business or profession was used in the course of the crime." 
5. Bias Intimidation. N.J.S.A. 2C:16-1(f)(1) to (3) allows the court to order a person convicted of bias intimidation to (1) complete a sensitivity class or program, (2) participate in counseling to reduce violent or antisocial behavior, or (3) make 
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payments or other compensation to a community-based program or local agency that provides services to victims of bias intimidation. 
6. Graffiti. N.J.S.A. 2C:17-3(c) provides that if the court imposes community service, the service must be at least twenty days in length or the time it takes to remove thee graffiti. 
7. Auto Theft. N.J.S.A. 2C:20-2.1(a)(1) to (3) requires a penalty of $500 and a one-year suspension or postponement of the person's driver's license for a first offense of auto theft, a $750 penalty and two-year license suspension for a second offense, and a $1000 penalty and ten-year license suspension for a third or subsequent offense. 
8. Removal of Headstones and Markers From Gravesites. 
N.J.S.A. 2C:20-2.3(c) requires the court to impose up to thirty days of community service for the unlawful removal of a headstone of gravesite marker. 
9. Theft by a Fiduciary, Leader of a Cargo Theft Network or Cargo Theft Sales. N.J.S.A. 2C:20-2.5(a)(1) to (3) requires the court to impose: (1) a $5000 penalty for first degree theft by a fiduciary or cargo theft; (2) a $2500 penalty for a second degree crime; and (3) a $500 penalty for a third degree crime. 
10. Shoplifting. N.J.S.A. 2C:20-11(c) provides that any person convicted of shoplifting shall be sentenced to perform at least ten days of community service for a first offense, at least fifteen days of community service for a second offense, and a maximum of twenty-five days of community service plus at least ninety days imprisonment for third or subsequent offense. 
11. Operation of a Facility for Sale of Stolen Automobile Parts. N.J.S.A. 2C:20-16(b) requires forfeiture of one's driver's license for three to five years. 
12. Offenses Involving False Government Documents. N.J.S.A. 2C:21-2.1(e) requires suspension of the defendant's driver's license for six months and two years. 
13. Pirating Recordings. N.J.S.A. 2C:21-21(e) provides that all recordings and equipment used in the crime shall be subject to forfeiture. 
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14. Money Laundering and Illegal Investment. N.J.S.A. 2C:21- 27.1 and N.J.S.A. 2C:21-27.2(a) to (c) requires the court to impose, upon application of the prosecutor, a penalty of $500,000 for first degree money laundering, $250,000 for a second degree crime, $75,000 for a third degree crime, or three times the value of any property involved in a money laundering activity. If the prosecutor requests the penalty of three times the value of property involved, the prosecutor must establish the basis for the penalty by a preponderance of the evidence. N.J.S.A. 2C:21-27.2(c). N.J.S.A. 2C:21-27.3 prohibits the court from reducing or revoking the penalty. N.J.S.A. 2C:21-27.4 allows the court to create a payment schedule for good cause shown. N.J.S.A. 2C:21-27.5 requires the penalty be imposed "in addition to and not in lieu of any forfeiture or other cause of action instituted pursuant to chapter 41 or 64 of Title 2C of the New Jersey Statutes." 
15. Fleeing Arrest While in an Automobile. N.J.S.A. 2C:29-2(b) requires a driver's license suspension between six months and two years for fleeing arrest while in an automobile. 
16. Domestic Violence Offenses. N.J.S.A. 2C:25-27 provides that the court may enter a restraining order and may require the defendant to receive counseling for a crime or offense involving domestic violence. N.J.S.A. 2C:25-30 and -31 address the consequences of violating a restraining order. N.J.S.A. 2C:25- 29.4 requires a $100 surcharge to fund grants for domestic violence prevention, training, and assessment. 
17. Public Corruption Profiteering. N.J.S.A. 2C:30-8(c)(1) to (5) requires the court, upon application of the prosecutor, to impose a penalty "when a person is convicted of a crime or an attempt or conspiracy to commit a crime involving the negotiation, award, performance or payment of a local, county or State contract, including, but not limited to" violations of any provision in Chapters 21 or 27 to 30 of Title 2C. N.J.S.A. 2C:30-8(d)(1) and (2) provides the following penalty values: $500,000 for a first degree crime; $250,000 for a second degree crime; $75,000 for a third degree crime; or "an amount equal to three times the value of any property involved in" an included offense. N.J.S.A. 2C:30-8(g) authorizes a payment schedule for good cause shown. 
18. False Public Alarm Offense. N.J.S.A. 2C:33-3.1(a) and (b) require the court to suspend for six months the driver's license 
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for a false public alarm offense by anyone age twenty-one and under. 
19. Graffiti That Implies Threats or Violence. N.J.S.A. 2C:33- 10 requires that if the court orders the defendant to community service, the service must include removal of the graffiti, "if appropriate," and must be "not less than twenty days nor less than the number of days necessary to remove the graffiti." 
20. Desecrating Religious or Sectarian Premises. N.J.S.A. 2C:33-11 provides that if the court orders community service, the service must include removal of the graffiti, "if appropriate," and must be "not less than twenty days or not less than the number of days necessary to remove the graffiti." 
21. Vandalizing a Railroad Crossing Device. N.J.S.A. 2C:33- 14.1(b) provides that if the court orders community service, the service must include removal of the graffiti, "if appropriate," and must be "not less than twenty days or not less than the number of days necessary to remove the graffiti." 
22. Under-Age Drinking. N.J.S.A. 2C:33-15(b) requires the court to suspend the defendant's driving license for six months if the defendant was drinking under age while inside a vehicle. 
23. Leader of a Dog Fighting Network. N.J.S.A. 2C:33-32(b)(2) (effective Aug. 10, 2015) provides that the court may prohibit the defendant from possessing another animal "for any period of time the court deems reasonable." 
24. Prostitution Driver's License Suspension for Certain Patrons. N.J.S.A. 2C:34-1(c)(5) provides that the court must suspend the defendant's driver's license for six months if the defendant used a vehicle during the crime. 
25. Prostitution Penalties for Certain Patrons. N.J.S.A. 2C:34-1(f)(2) requires the court to impose on a defendant convicted of promoting prostitution a penalty of at least $10,000 but not more than $50,000, except if the offense involved promotion of child prostitution, then the penalty shall be at least $25,000. 
26. Prostitution Offender Program. Pursuant to N.J.S.A. 2C:34- 1.2(a), a person convicted of a disorderly persons offense of engaging in prostitution as a patron must participate in the Prostitution Offender Program, unless the prosecutor waives 
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participation. If the court orders a person convicted of engaging in prostitution as a patron to participate in the Prostitution Offender Program, the person must contribute $500 to the cost of the program. N.J.S.A. 2C:34-1.2(b). 
27. Drug Offender Restraining Orders. N.J.S.A. 2C:35-5.7(h) provides: " When a person is convicted of or adjudicated delinquent for any criminal offense, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to N.J.S.A. 2C:35-5.9 [certification of offense location] and except as provided in subsection e. of this section, shall, by separate order or within the judgment of conviction, issue an order prohibiting the person from entering" the place where the offense occurred. 
(a) Exception. N.J.S.A. 2C:35-5.7(e) provides: "The court may forego issuing a restraining order . . . only if the defendant establishes by clear and convincing evidence that": 
(1) "the defendant lawfully resides at or has legitimate business on or near the place, or otherwise legitimately needs to enter the place. In such an event, the court shall not issue" a restraining order "unless the court is clearly convinced that the need to bar the person from the place in order to protect the public safety and the rights, safety and health of the residents and persons working in the place outweighs the person's interest in returning to the place." The court may also impose an order permitting entry with conditions; or 
(2) imposition of a restraining order "would cause undue hardship to innocent persons and would constitute a serious injustice which overrides the need to protect the rights, safety and health of persons residing in or having business in the place." 
(b) Appeal by the State. If the court denies a request to impose a restraining order, the sentence shall not be final for ten days to allow the State time to file an appeal. N.J.S.A. 2C:35-5.7(k). 
28. Drug Enforcement and Demand Reduction Penalty for Certain Offenses. N.J.S.A. 2C:35-5.11 provides: "Any person who possesses, distributes, dispenses or has under his control with 
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intent to distribute or dispense 3,4-methylenedioxymeth- amphetamine, 3,4-methylenedioxyamphetamine, gammabutyrolactone, gamma hydroxybutyrate or flunitrazepam, or a controlled substance analog of any of these substances, shall, . . . be subject to a drug enforcement and demand reduction penalty of twice the amount otherwise applicable to the offense." 
29. Drug Distribution to a Minor or a Pregnant Female. 
N.J.S.A. 2C:35-8 requires the court to impose, upon application of the prosecutor, "twice the term of imprisonment, fine and penalty, including twice the term of parole ineligibility, if any, authorized or required to be imposed by" N.J.S.A. 2C:35- 5(b) (drug distribution) or N.J.S.A. 2C:35-7 (distribution within a school zone) "or any other provision of this title." If the defendant is convicted of more than one offense, the court must impose one enhanced sentence on the most serious offense. Ibid. The prosecutor must establish the basis for the enhanced sentence by a preponderance of the evidence, and the court must hold a hearing on the matter. Ibid. 
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject to waiver under N.J.S.A. 2C:35-12. See Chapter XIV on drug offender sentencing for additional discussion. 
30. Possession of a Controlled Dangerous Substance or Analog. 
N.J.S.A. 2C:35-10(a) requires the defendant to "perform not less than 100 hours of community service" if the court does not impose a prison term and the defendant committed the crime while inside a school bus or within 1000 feet of school property. 
31. Drug Enforcement and Demand Reduction Penalty. N.J.S.A. 2C:35-15(a)(1) requires the court to impose the following drug enforcement and demand reduction (DEDR) penalties on anyone convicted of a Chapter 35 or 36 drug offense: 
  • ·  $3000 for a first degree crime; 

  • ·  $2000 for a second degree crime; 

  • ·  $1000 for a third degree crime; 

  • ·  $750 for a fourth degree crime; and 

  • ·  $500 for a disorderly persons or petty disorderly persons offense. 

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(a) Multiple Offenses. N.J.S.A. 2C:35-15(a)(2)(a) and (b) provide that the court may, in its discretion, impose one penalty based on the highest degree offense if: (1) the defendant was not placed in supervisory treatment or ordered to perform reformative service; (2) "multiple penalties would constitute a serious hardship that outweighs the need to deter the defendant from future criminal activity"; and (3) "imposition of a single penalty would foster the defendant's rehabilitation." 
(b) Treatment Program in Lieu of Payment. N.J.S.A. 2C:35- 15(e) authorizes the court to suspend collection of the penalty "provided the person is ordered by the court to participate in a drug or alcohol rehabilitation program," and the defendant "agrees to pay for all or some portion of the costs associated with the rehabilitation." Upon proof of successful completion of the program the defendant may request the court reduce the penalty by any amount the defendant paid for participation in the program. Ibid. 
(c) Service in Lieu of Payment. N.J.S.A. 2C:35-15(f) provides that the defendant "may propose to the court and the prosecutor a plan to perform reformative service in lieu of payment of up to one-half of the penalty amount imposed." 
32. Drug Offenses and License Forfeiture. N.J.S.A. 2C:35- 16(a) requires forfeiture of a defendant's driver's license for a period between six months and two years absent compelling circumstances and upon conviction of a drug offense under Chapter 35 or 36 of Title 2C. "[C]ompelling circumstances warranting an exception exist if the forfeiture . . . will result in extreme hardship and alternative means of transportation are not available." 
Post-Sentencing Motion to Revoke the License Suspension. 
N.J.S.A. 2C:35-16(d) allows the defendant to request the court revoke a remaining license suspension term based on compelling circumstances. 
33. Controlled Dangerous Substance Lab Fee. N.J.S.A. 2C:35- 20(a) and (b) require that a $50 criminal laboratory analysis fee be imposed on anyone convicted of a Chapter 35 drug offense; a $50 criminal laboratory fee be imposed on anyone placed in supervisory treatment pursuant to N.J.S.A. 2C:36A-1 or N.J.S.A. 
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2C:43-12; and a $25 laboratory analysis fee be imposed on anyone adjudicated delinquent for a Chapter 35 offense. 
34. Anti-Drug Profiteering Penalty. N.J.S.A. 2C:35A-4(a)(1) to (3) requires the court impose the following penalties for certain drug offenders in accordance with the criteria set forth in N.J.S.A. 2C:35A-3: 
  • ·  $200,000 for a first degree crime; $100,000 for a second degree crime; $50,000 for a third degree crime; and $25,000 for a fourth degree crime; or 

  • ·  "three times the street value of all controlled dangerous substances or controlled substance analogs involved, or three times the market value of all drug paraphernalia involved, if this amount is greater than that provided" above; or 

  • ·  "an amount equal to three times the value of any benefit illegally obtained by the actor for himself or another, or any injury to or benefit deprived of another." 
    Note: This statute is subject to the N.J.S.A. 2C:35-12 waiver provision, discussed further in Chapter XIV on drug offender sentencing. 

35. Unlawful Transfer of a Firearm. N.J.S.A. 2C:39-10(a)(3) and (4) require the court to revoke a dealer's license for the unlawful transfer of firearms in certain situations. 
36. Causing Death or Injury While Driving With a Suspended License or Without a License. N.J.S.A. 2C:40-22(a) and (b) require the court to suspend the defendant's driver's license for one year where the defendant caused death while driving without a valid license. The license shall run consecutively to any current driver's license suspension. N.J.S.A. 2C:40-22(a) and (b). 
37. Unauthorized Use of a Traffic Control Preemption Device. 
N.J.S.A. 2C:40-24(d) requires the court to impose a civil penalty not to exceed $5000 for unauthorized use of a traffic control preemption device. 
38. Crimes With Automobiles. N.J.S.A. 2C:43-2(c) authorizes the court to suspend, postpone or revoke a defendant's driver's license for a period not to exceed two years where the defendant 
152 
used a motor vehicle in the course of a crime, disorderly persons offense, or petty disorderly persons offense. In deciding whether to suspend, postpone or revoke a license and in fixing the length of the suspension, the court must consider "the severity of the crime or offense and the potential effect of the loss of driving privileges on the person's ability to be rehabilitated." Ibid. In the event the court suspends, postpones or revokes driving privileges, the suspension "shall be imposed consecutively with any custodial sentence." Ibid. 
39. Serological Testing. N.J.S.A. 2C:43-2.2(a) provides for the serological testing of the defendant "for acquired immune deficiency syndrome (AIDS) or infection with the human immunodeficiency virus (HIV) or any other related virus identified as a probable causative agent of AIDS" in certain cases where a person suffered a prick from a hypodermic needle or the defendant's bodily fluids were transmitted. The court may order the defendant to pay the cost of the testing. N.J.S.A. 2C:43-2.3(c). 
40.  Victims of Crime Compensation Board (VCCB) Assessments.
(a) Certain Crimes Resulting in Injury or Death. N.J.S.A. 2C:43-3.1(a)(1) requires the court to assess at least $100 and not more than $10,000 for each of the following offenses if the defendant injured or killed the victim: 
  • ·  "[A] crime of violence"; or 

  • ·  Theft of an automobile (N.J.S.A. 2C:20-2); or 

  • ·  Eluding a law enforcement officer (N.J.S.A. 2C:29- 2(b)); or 

  • ·  Unlawful taking of a motor vehicle (N.J.S.A. 2C:20- 10(b), (c) or (d)). 
    In imposing an assessment under N.J.S.A. 2C:43-3.1(a)(1), "the court shall consider factors such as the severity of the crime, the defendant's criminal record, defendant's ability to pay and the economic impact of the assessment on the defendant's dependents." 
    (b) Offenses Not Resulting in Injury. N.J.S.A. 2C:43- 3.1(a)(2)(a) mandates a $50 assessment be imposed for each crime, disorderly person offense, or petty disorderly 

153 
person offense the defendant committed that did not result in injury. 
(c) Juvenile Offenders. N.J.S.A. 2C:43-3.1(a)(2)(b) requires for each adjudication of delinquency an assessment of at least $30 and not more than "the amount which could be assessed pursuant to paragraph (1) or paragraph (2) (a) of subsection a. of this section if the offense was committed by an adult." 
(d) Driving or Operating a Vessel While Impaired. 
N.J.S.A. 2C:43-3.1(a)(2)(c) provides that any person convicted of operating a motor vehicle or vessel while under the influence of alcohol or drugs "shall" be assessed $50 payable to the VCCB. 
(e) Supervisory Treatment and Conditional Discharge. 
N.J.S.A. 2C:43-3.1(a)(2)(d) provides: "In addition to any term or condition that may be included in an agreement for supervisory treatment pursuant to N.J.S.A. 2C:43-13, or imposed as a term or condition of conditional discharge pursuant to N.J.S.A. 36A-1, a participant in either program shall be required to pay an assessment of $50." 
41. Safe Neighborhoods Services Assessment. N.J.S.A. 2C:43-3.2(a) requires any person convicted of a crime, a disorderly persons or petty disorderly persons offense, or a drunk driving offense to be assessed $75 per conviction to be deposited into the Safe Neighborhoods Services Fund (SNSF). 
42. Law Enforcement Officers Training and Equipment Assessment. 
N.J.S.A. 2C:43-3.3(a) requires the court to impose a $30 penalty on any adult convicted of a crime, for deposit into the Law Enforcement Officers Training and Equipment Fund. A juvenile shall be assessed a $15 penalty. N.J.S.A. 2C:43-3.3(b). 
43. Drug Abuse Education Assessment. N.J.S.A. 2C:43-3.5(a) requires the court to impose a $50 assessment for each drug offense under Chapter 35 or 36 of Title 2C. 
44. Sexual Assault Nurse Examiner Program Assessment. N.J.S.A. 2C:43-3.6(a) requires an $800 assessment for any sex offense defined in N.J.S.A. 2C:7-2. 
45. Surcharge for Certain Sex Offenders. N.J.S.A. 2C:43-3.7 requires any person convicted of aggravated sexual assault 
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(N.J.S.A. 2C:14-2(a)), sexual assault (N.J.S.A. 2C:14-2(b)), aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)), or criminal sexual contact (N.J.S.A. 2C:14-3(b)), to pay a $100 surcharge to fund programs and grants for the prevention of violence against women. 
46. Computer Crime Prevention Penalty. N.J.S.A. 2C:43-3.8(a) provides that any person convicted of depicting a child engaging in a prohibited sexual act (N.J.S.A. 2C:24-4(b)(5)), child obscenity (N.J.S.A. 2C:34-3), or an offense involving computer criminal activity contrary to any provision within Chapter 20 of Title 2C (theft offenses), shall be assessed the following penalties to be deposited in the Computer Crime Prevention Fund: 
· $2000 for a first degree crime;
· $1000 for an second degree crime;
· $750 for a third degree crime;
· $500 for a fourth degree crime; and
· $250 for a disorderly persons offense. 
47. Restricted Internet Access. N.J.S.A. 2C:43-6.6(a)(1) to (4) provides that any person who (1) committed a sex offense as defined in N.J.S.A. 2C:7-2(b) and is required to register under Megan's Law (N.J.S.A. 2C:7-2); or (2) is serving a special sentence of parole supervision under N.J.S.A. 2C:43-6.4, or has been convicted of promoting or providing obscene materials to a minor (N.J.S.A. 2C:34-3), "shall" be subject to the following Internet access conditions "where the trier of fact makes a finding that a computer or any other device with Internet capability was used to facilitate the commission of the crime": 
(1) Prohibited access of "a computer or any other device with Internet capability without the prior written approval of the court," with the exception that a person on probation or parole "may use a computer or any other device with Internet capability in connection with that person's employment" or to "search for employment with the prior approval of the person's probation or parole officer"; 
(2) "[P]eriodic unannounced examinations of the person's computer . . . including the retrieval and copying of all 
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data . . . and removal of such information, equipment or device to conduct a more thorough inspection"; 
(3) Installation, "at the person's expense, [of] one or more hardware or software systems to monitor the Internet use"; and 
(4) "[A]ny other appropriate restrictions concerning the person's use or access of a computer or any other device with Internet capability." 
A violation of the Internet access restrictions constitutes a fourth degree crime. N.J.S.A. 2C:43-6.6(b). 
48. Sex Offender Restraining Order. N.J.S.A. 2C:44-8 authorizes the court to enter an order restraining a sex offender from contact with the victim or the victim's family and from entering certain locations. 
49. Probation or Suspension of Sentence. N.J.S.A. 2C:45-1(c) requires the defendant to pay a victims of crime compensation board assessment (N.J.S.A. 2C:43-3.1), where the court imposes probation or suspends the defendant's sentence. 
B. Payment of Penalties, Fees and Assessments: Statutory Provisions 
1. Statutory Authority for Timing of Payment. N.J.S.A. 2C:46- 1(a) provides that a penalty, fee and assessment shall be "payable forthwith" unless the court grants "permission for the payment to be made within a specified period of time or in specified installments." "[T]he court shall file a copy of the judgment of conviction with the Clerk of the Superior Court." Ibid. N.J.S.A. 2C:46-1(d)(1) and N.J.S.A. 2C:46-1.1(a) also impose transactional fees. 
2. Payments While on Probation. The court may order continued payments as a condition of probation. N.J.S.A. 2C:46-1(b)(1). 
3. Installment Payments While Incarcerated. Where the defendant is sentenced to a term of imprisonment, the court may order the defendant to make installment payments. N.J.S.A. 2C:46-1(b)(2). 
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4. Nonpayment. In the event the defendant fails to pay, the State may institute a summary collection action or take any other authorized action for the collection of a civil judgment. N.J.S.A. 2C:46-2(a) and (b). If the default is without good cause, the court shall order the suspension of the defendant's driver's license or prohibit the defendant from obtaining a license, and take "such other actions as may be authorized by law." N.J.S.A. 2C:46-2(a)(1)(a) to (d). 
5. Willful Nonpayment. If the defendant's default was without good cause and was willful, the court may imprison the defendant, order participation in a labor assistance program, or order community service. N.J.S.A. 2C:46-2(a)(2). 
C.  Penalties, Fees and Assessments:  Case Law
1. Merger. The court may not impose penalties and assessments on a merged conviction. State v. Francis, 341 N.J. Super. 67, 69 (App. Div. 2001). 
2. Sex Crime Victims Treatment, Setting the Penalty Amount. 
The sex offender penalty amounts listed in N.J.S.A. 2C:14-10(a) are the maximum penalties the court may impose. State v. Bolvito, 217 N.J. 221, 224 (2014). In fixing the penalty amount, the court should consider the nature of the offense and the defendant's ability to pay. Id. at 233-35. 
3. Megan's Law Offenses. While Megan's Law requires registration for "sex offenses," the N.J.S.A. 2C:7-2(b) offenses that define a sex offense encompass more than just sex offenses; they include non-sex crimes against children. In re T.T., 188 N.J. 321, 333 (2006). 
4.  Victims of Crime Compensation Board (VCCB) Assessment.
(a) Mandatory Assessments. The N.J.S.A. 2C:43-3.1 VCCB assessments are mandatory and may not be withheld, even if the defendant has limited financial resources. State v. Malia, 287 N.J. Super. 198, 208 (App. Div. 1996). 
(b) Defendant's Ability to Pay. A court may not impose the maximum assessment on the ground that the defendant "might come into a substantial amount of money in the future. . . . There must be some relationship between defendant's ability to pay over the course of his 
157 
incarceration and parole, and the actual VCCB penalty imposed." State v. Gallagher, 286 N.J. Super. 1, 23 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). 
(c) Injury to the Victim. "Mental or nervous shock" constitutes injury for purposes of the victim of crime compensation board assessment. State v. Diaz, 188 N.J. Super. 504, 508 (App. Div. 1983). Thus, when a robber threatens a victim "as if he had a gun," one may infer that the victim suffered an injury, "no matter how transitory." Ibid. 
(d) Lack of Injury. If there is no proof of injury to the victim, the court may not impose an assessment greater than the minimum penalty. State v. Thompson, 199 N.J. Super. 142, 144-45 (App. Div. 1985). 
(e) Refusal to Submit to a Breathalyzer. The court may not impose an assessment for refusing to submit to a breathalyzer test. State v. Tekel, 281 N.J. Super. 502, 510-11 (App. Div. 1995). 
(f) Standard of Review. A court reviews the amount of the VCCB penalty under the abuse of discretion standard. State v. Diaz, 188 N.J. Super. 504, 507-08 (App. Div. 1983). 
5. Domestic Violence Surcharge, Attempt Excluded. The court may not order a defendant convicted of attempted murder to pay a domestic violence surcharge. State v. Lee, 411 N.J. Super. 349, 353 (App. Div. 2010). 
6. Offenses with Automobiles. In order to suspend, postpone or revoke a driver's license under N.J.S.A. 2C:43-2(c), the defendant must have committed the offense with an automobile. State v. Gross, 225 N.J. Super. 28, 31 (App. Div. 1988). The court may not revoke a license under N.J.S.A. 2C:43-2(c) for possession of a vehicle knowing that the vehicle identification number had been removed. Ibid. 
7.   Drug Offense Penalties.
(a) Conspiracy. "[T]he mere conviction under N.J.S.A. 2C:5-2 for the 'ordinary' crime of conspiracy, does not render a person subject to the mandatory penalties of the Comprehensive Drug Reform Act, even if the object of that conspiracy constitutes a Chapter 35 offense." State in the 
158 
Interest of W.M., 237 N.J. Super. 111, 118 (App. Div. 1989). 
(b) Accomplices. A defendant convicted of a drug offense as an accomplice is subject to the mandatory drug offense penalties. State v. Bram, 246 N.J. Super. 200, 208 (Law Div. 1990). 
8. Drug Offender Restraining Orders. Where the court denies a N.J.S.A. 2C:35-5.7(h) request to impose a drug offender restraining order, N.J.S.A. 2C:35-5.7(k) imposes a ten-day limitation period on the State's right to appeal. State v. Fitzpatrick, 443 N.J. Super. 316, 320 (App. Div. 2015). 
9.   Drug Offense License Suspension.
(a) Multiple Offenses. Where a court imposes sentence for multiple drug offenses subject to the mandatory forfeitures of one's driver's license, pursuant to N.J.S.A. 2C:35-16, the license suspension terms may vary in duration, but must run concurrently. State in the Interest of T.B., 134 N.J. 382, 387 (1993). 
(b) Timing. License suspension under N.J.S.A. 2C:35-16 begins on the day of sentencing; the court has no discretion to postpone or delay it. State v. Hudson, 286 N.J. Super. 149, 154-55 (App. Div. 1995). In the case of a juvenile, license suspension begins the day after the defendant turns seventeen. State in the Interest of T.B., 134 N.J. 382, 388 (1993); State in the Interest of J.R., 244 N.J. Super. 630, 641 (App. Div. 1990). If the defendant's license is under suspension at the time of sentencing, then the new license suspension will begin on the final day of the current suspension. State in the Interest of T.B., 134 N.J. 382, 388 (1993). 
(c) License Forfeiture Exception. In determining whether compelling circumstances exist to justify not revoking a defendant's driving privileges under N.J.S.A. 2C:35-16(a), the court should consider whether revocation will result in the defendant's loss of employment or extreme hardship. State v. Bendix, 396 N.J. Super. 91, 95-96 (App. Div. 2007). Where a defendant "has occasioned the loss of his employment through his unauthorized and criminal use of his employer's vehicle," the court should not find compelling circumstances to justify not revoking the defendant's 
159 
license. State v. Carrero, 399 N.J. Super. 419, 425-26 (Law Div. 2007). 
9.   The Drug Enforcement and Demand Reduction (DEDR) Penalty.
(a) Policy. "As its name suggests, the penalty is designed to reduce the demand for drugs by providing a source for helping convicted defendants to reduce their demand for illegal substances." State v. Monzon, 300 N.J. Super. 173, 177 (App. Div. 1997). 
(b) Treatment Program in Lieu of Payment and Wages. In reducing a penalty pursuant to N.J.S.A. 2C:35-15(e) by the amount actually paid for participation in a treatment program, the court should consider the amount withheld from a defendant's pay for work completed at the treatment program. N.J.S.A. 2C:35-15(e). State v. Monzon, 300 N.J. Super. 173, 177-78 (App. Div. 1997). 
(c) Constitutionality. The drug enforcement and demand reduction penalty does not constitute cruel and unusual punishment under the Federal or State Constitution, and does not violate the equal protection clauses, substantive or procedural due process rights, or the State Constitution prohibition against amendment by reference. State v. Lagares, 127 N.J. 20, 36-37 (1992); State in the Interest of L.M., 229 N.J. Super. 88, 94-102 (App. Div. 1988), certif. denied, 114 N.J. 485 (1989). 
(d) Merger and Conspiracy. "Since the principle of merger involves the avoidance of double penalties for the same crime, Chapter 35 DEDR penalties may not be imposed on a conviction for both conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2, and for the actual possession under N.J.S.A. 2C:35-10." State in the Interest of M.A., 227 N.J. Super. 393, 395 (Ch. Div. 1988). 
(e) Pretrial Intervention Program. The court may impose a drug enforcement and demand reduction penalty as a condition of entry into a pretrial intervention program. State v. Bulu, 234 N.J. Super. 331, 342, 346-48 (App. Div. 1989). 
(f) The DEDR Penalty Is Mandatory. The DEDR penalty is mandatory and must be set in accordance with the degree of crime of which the defendant was convicted. State v. 
160 
Malia, 287 N.J. Super. 198, 208 (App. Div. 1996); State v. Williams, 225 N.J. Super. 462, 464 (Law Div. 1988). The court may not revoke the penalty after sentencing. State v. Gardner, 252 N.J. Super. 462, 465-66 (Law Div. 1991). 
10. Plea Agreements May Not Alter a Mandatory Penalty. Where a defendant pleads guilty to a second degree drug offense with the understanding that the court will impose a sentence for a third degree crime, the court may not honor the agreement in relation to the mandatory DEDR penalty. State v. Williams, 225 N.J. Super. 462, 464 (Law Div. 1988). The court must impose a 
penalty for a second 
degree crime. Ibid. 
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    XIII.  THE GRAVES ACT AND ASSAULT WEAPONS
                   SENTENCING
N.J.S.A. 2C:43-6(c) and (d) (commonly called the Graves Act), and N.J.S.A. 2C:43-6(g) and (h), require enhanced sentences for crimes committed with firearms (N.J.S.A. 2C:43-6(c) and (d)) and with assault weapons or machine guns (N.J.S.A. 2C:43-6(g) and (h)).See N.J.S.A. 2C:39-1(f), (i) and (w) for the definitions of firearm, machine gun, and assault firearm, respectively. 
Both laws require the court to impose: (1) a parole disqualifier, and (2) an extended term with a parole disqualifier for certain repeat offenders. Unlike the assault weapons statute, the Graves Act also has a parole disqualifier exception for first-time offenders. Sections A and C, respectively, discuss statutory provisions and case law on the Graves Act. Sections B and D, respectively, discuss statutory provisions and case law on assault weapons sentencing. 
A.  Graves Act Sentencing:  Statutory Provisions
1. Graves Act Enumerated Offenses. The Graves Act (N.J.S.A. 2C:43-6(c)) requires enhanced sentencing where the defendant committed any of the following enumerated offenses under the circumstances listed in either (a) or (b): 
     (a)  The defendant committed any of the following offenses:
· Possession of a sawed-off shotgun or defaced firearm (N.J.S.A. 2C:39-3(b) or (d)); 
It is unclear whether N.J.S.A. 2C:43-6(g) and (h), covering crimes committed with assault weapons, may appropriately be called part of "the Graves Act." Subsections (g) and (h) were enacted eleven years after the Graves Act (N.J.S.A. 2C:43-6(c) and (d)), and while the subsections are similar to the Graves Act, the two provisions differ in certain respects. No published New Jersey decision that mentions N.J.S.A. 2C:43-6(g) or (h), refers to either subsection as the Graves Act. Presumably, even if those sections are not part of the Graves Act, a significant amount of case law on the Graves Act would apply by analogy to assault weapons sentencing. 
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  • ·  Possession of a firearm with purpose to use it unlawfully against a person or property of another (N.J.S.A. 2C:39-4(a)); 

  • ·  Possession of a firearm while committing certain drug-related offenses or bias intimidation (N.J.S.A. 2C:39-4.1(a)); 

  • ·  Possession of a machine gun, handgun, rifle, shotgun, or assault firearm without the required license, permit, or identification card, or possession of a loaded rifle or shotgun (N.J.S.A. 2C:39-5(a), (b), (c) or (f)); 

  • ·  Possession of a weapon by a certain person prohibited from such possession (N.J.S.A. 2C:39- 7(a), (b)(2) or (b)(3)); or 

  • ·  Manufacturing, transporting and disposing a machine gun, sawed-off shotgun, defaced firearm, or assault firearm (N.J.S.A. 2C:39-9(a), (b), (e) or (g)); 
    OR 
    (b) The defendant committed any of the following offenses and used, or was in possession of, a firearm (defined at N.J.S.A. 2C:39-1(f)), while committing or attempting to commit the crime, including the immediate flight therefrom: 

  • ·  Murder (N.J.S.A. 2C:11-3); 

  • ·  Manslaughter (N.J.S.A. 2C:11-4); 

  • ·  Aggravated assault (N.J.S.A. 2C:12-1(b)); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14- 3(a)); 

  • ·  Robbery (N.J.S.A. 2C:15-1); 163 

· Burglary (N.J.S.A. 2C:18-2); or 
· Escape (N.J.S.A. 2C:29-5). 
2. Graves Act Parole Disqualifier. N.J.S.A. 2C:43-6(c) provides that if the defendant committed any of the enumerated offenses (see section A(1) above), the court must impose a period of parole ineligibility that is either one-half of the sentence imposed or forty-two months, whichever is greater, or, in the case of a fourth degree crime, eighteen months. 
Note: Effective August 8, 2013, the Legislature amended N.J.S.A. 2C:43-6(c) to provide fixed mandatory minimum terms for the enumerated crimes (listed in section A(1) above). Prior to this amendment, the statute required a mandatory minimum term within a specified range. 
3. Graves Act Extended Term With Parole Disqualifier for Certain Repeat Offenders. N.J.S.A. 2C:43-6(c) provides that the court must impose an extended term if the defendant committed or attempted to commit an enumerated offense (see section A(1) above) while possessing a firearm; is at least eighteen years old; and has a prior conviction for committing with a firearm any of the following offenses set forth in N.J.S.A. 2C:44-3(d): 
  • ·  Murder (N.J.S.A. 2C:11-3); 

  • ·  Manslaughter (N.J.S.A. 2C:11-4); 

  • ·  Aggravated assault (N.J.S.A. 2C:12-1(b)); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)); 

  • ·  Robbery (N.J.S.A. 2C:15-1); 

  • ·  Burglary (N.J.S.A. 2C:18-2); 

  • ·  Escape (N.J.S.A. 2C:29-5); 

  • ·  Possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a); or 

164 
· Any offense in Title 2A (Administration of Civil and Criminal Justice). 
N.J.S.A. 2C:43-6(c) instructs the court to impose the extended term in accordance with N.J.S.A. 2C:43-7(c), which requires that the extended term include a parole disqualifier at or between one-third and one-half the sentence imposed, or five years, whichever is greater. If the sentence is life imprisonment, the parole disqualifier must be twenty-five years, unless the sentence is for a violation of N.J.S.A. 2C:35-3 (leader of a narcotics organization); then the parole disqualifier must be thirty years. N.J.S.A. 2C:43-7(c). 
4. Hearing and Required Findings to Support a Graves Act Sentence. N.J.S.A. 2C:43-6(d) provides that the court shall not impose a Graves Act enhanced sentence unless the prosecutor establishes, and the court finds, by a preponderance of the evidence at a hearing, which may occur at the time of sentencing, "that the weapon used or possessed was a firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information." 
(a) The Sixth Amendment and the Graves Act Extended Terms: 
Sixth Amendment jurisprudence renders invalid the Graves Act requirement (N.J.S.A. 2C:43-6(d)) that the court find the facts, other than proof of a prior conviction, that subjects a defendant to a Graves Act extended term. State v. Franklin, 184 N.J. 516, 533-34 (2005) (applying the holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000)). To impose a Graves Act extended term after trial, the jury must have found that the defendant used or possessed a firearm during the crime. State v. Franklin, 184 N.J. 516, 533-34 (2005). In the case of a guilty plea, the maximum sentence authorized by statute is the maximum sentence supported by the defendant's admissions. State v. Franklin, 184 N.J. 516, 537-38 (2005) (interpreting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)). The defendant may also "consent to judicial factfinding as to sentence enhancements." State v. Franklin, 184 N.J. 516, 538 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)). 
165 
(b) The Sixth Amendment and the Graves Act Parole Disqualifiers: In accordance with the decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), that to comply with the Sixth Amendment, the jury, not the court, must find a fact that subjects a defendant to an extended term, the Sixth Amendment similarly requires that a fact that increases the mandatory minimum term must be found by the jury, not a judge. Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013). 
Our Court has yet to address the Alleyne decision in relation to the Graves Act parole disqualifier, but it has found that a mandatory parole disqualifier based on the court's finding that the defendant was involved in organized crime was invalid under Alleyne. State v. Grate, 220 N.J. 317, 335 n.2 (2015) (refusing to issue an advisory opinion on whether the Graves Act mandatory parole disqualifier was also invalid). 
Though no United States Supreme Court or published New Jersey decision has so held, presumably the Apprendi prior- conviction exception will apply to mandatory minimum terms, just as it applies to extended terms. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) (holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). 
5. Certain Offenses Excluded From Graves Act Enhanced Sentencing. N.J.S.A. 2C:43-6(d)(2) provides that the court shall not impose a Graves Act enhanced sentence for the following crimes: 
  • ·  Unlawful possession of a handgun in which the propelling force is air or similar force (N.J.S.A. 2C:39-5(b)(2)); 

  • ·  Unlawful possession of a rifle or shotgun in which the propelling force is air or similar force (N.J.S.A. 2C:39- 5(c)(2)); and 

  • ·  Possession of a rifle or shotgun without a firearms purchaser identification card (N.J.S.A. 2C:39:5(c)(1)). 

166 
6. Parole-Disqualifier Exception for First-Time Offenders. 
N.J.S.A. 2C:43-6.2 provides that upon request of the State, or at the sentencing court's request with the State's approval, the assignment judge shall place the defendant on probation or reduce the parole ineligibility term to one year if the interest of justice would not be served by imposition of a parole disqualifier, and the defendant has no prior conviction for an enumerated offense (listed in section A(1) above). 
B.  Assault Weapons Sentencing:  Statutory Provisions
1. Assault Weapons Enumerated Offenses. N.J.S.A. 2C:43-6(g) requires enhanced sentencing if the defendant used or was in possession of a machine gun (defined in N.J.S.A. 2C:39-1(i)) or assault firearm (defined in N.J.S.A. 2C:39-1(w)) while committing, or attempting to commit, any of the following enumerated offenses, including the immediate flight therefrom: 
  • ·  Possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a)); 

  • ·  Murder (N.J.S.A. 2C:11-3); 

  • ·  Manslaughter (N.J.S.A. 2C:11-4); 

  • ·  Aggravated assault (N.J.S.A. 2C:12-1(b)); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)); 

  • ·  Robbery (N.J.S.A. 2C:15-1); 

  • ·  Burglary (N.J.S.A. 2C:18-2); 

  • ·  Escape (N.J.S.A. 2C:29-5); or 

  • ·  Manufacture, distribute or dispense a controlled dangerous substance (N.J.S.A. 2C:35-5). 

167 
2. Assault Weapons Parole Disqualifier. If the defendant committed an enumerated offense (see section B(1) above) while possessing a machine gun or assault weapon, the court must impose a term of parole ineligibility of (a) ten years for a first or second degree crime, (b) five years for a third degree crime, or (c) eighteen months for a fourth degree crime. N.J.S.A. 2C:43-6(g). 
3. Extended Term With Parole Disqualifier for Certain Assault Weapons Repeat Offenders. N.J.S.A. 2C:43-6(g) provides that the court must impose an extended term if the defendant committed an enumerated offense (see section B(1) above) while possessing a machine gun or assault weapon, is at least eighteen years old, and has a prior conviction for committing with a firearm any of the following offenses set forth in N.J.S.A. 2C:44-3(d): 
  • ·  Murder (N.J.S.A. 2C:11-3); 

  • ·  Manslaughter (N.J.S.A. 2C:11-4); 

  • ·  Aggravated assault (N.J.S.A. 2C:12-1(b)); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)); 

  • ·  Robbery (N.J.S.A. 2C:15-1); 

  • ·  Burglary (N.J.S.A. 2C:18-2); 

  • ·  Escape (N.J.S.A. 2C:29-5); 

  • ·  Possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a); or 

  • ·  Any offense in Title 2A (Administration of Civil and Criminal Justice). 
    N.J.S.A. 2C:43-6(g) instructs the court to impose the extended term in accordance with N.J.S.A. 2C:43-7(d), which requires that the extended term include a parole disqualifier as follows: 

168 
  • ·  First and second degree crimes: fifteen years, unless: 
    The sentence is one of life imprisonment, then the parole disqualifier must be twenty-five years or thirty years if the defendant violated N.J.S.A. 2C:35-3 (leader of a narcotics trafficking network); 

  • ·  Third degree crime: eight years; and 

  • ·  Fourth degree crime: five years. 

4. Hearing and Findings Required to Support an Assault Weapons Sentence. N.J.S.A. 2C:43-6(h) requires the prosecutor to establish, and the court to find, by a preponderance of the evidence at a hearing, which may occur at the time of sentencing, "that the weapon used or possessed was a machine gun or assault firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information." 
(a) Note on the Parole Disqualifier as Applied to Second, Third and Fourth Degree Crimes: Because N.J.S.A. 2C:43- 6(g) effectively imposes a 100% period of parole ineligibility on second, third and fourth degree offenses, the jury, not the court, must find beyond a reasonable doubt that the weapon used was an assault firearm or machine gun and that the defendant possessed it to use it against another. State v. Petrucci (II), 365 N.J. Super. 454, 462-63 (App. Div.), certif. denied, 179 N.J. 373 (2004). 
(b) The Sixth Amendment and Assault Weapons Extended Terms: The Sixth Amendment requires the jury, not the court, find a fact, other than proof of a prior conviction, that subjects a defendant to a mandatory extended term. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). Though no published New Jersey decision applies this rule to the assault weapons sentencing statute (N.J.S.A. 2C:43-6(h)), the Court has declared unconstitutional under Apprendi the parallel Graves Act extended term provision (N.J.S.A. 
169 
2C:43-6(d)). State v. Franklin, 184 N.J. 516, 533-34 (2005). 
(c) The Sixth Amendment and Assault Weapons Parole Disqualifiers: In accordance with the decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), that to comply with the Sixth Amendment, the jury, not the court, must find a fact that subjects a defendant to a mandatory extended term, the Sixth Amendment similarly requires that a fact that requires a mandatory minimum term must be found by the jury, not a judge. Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013). Though no United States Supreme Court or published New Jersey decision has so held, presumably the Apprendi prior- conviction exception will apply to mandatory minimum terms, just as it applies to extended terms. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) (holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). 
Our Court has yet to address the Alleyne decision in relation to the assault weapons parole disqualifier, but it has found that a mandatory parole disqualifier based on the court's finding that the defendant was involved in organized crime was invalid under Alleyne. State v. Grate, 220 N.J. 317, 334-35 (2015). The Grate Court declined to issue an advisory opinion on whether the Graves Act mandatory parole disqualifier, which is similar to the assault weapons parole disqualifier, was invalid under Alleyne. State v. Grate, 220 N.J. 317, 335 n.2 (2015). 
C. Graves Act Sentencing: Case Law
1. Policy. The focus of the Graves Act is deterrence, not 
rehabilitation.  State v. Haliski, 140 N.J. 1, 9 (1995).
2. Proportionality and a Parole Disqualifier. The length of a parole ineligibility term under the Graves Act "must ordinarily be consistent with the length of the base term" and "the court's evaluation of the relevant aggravating and mitigating factors." State v. Towey, 114 N.J. 69, 81 (1989). Since, however, "the 
170 
weight of the aggravating and mitigating factors is irrelevant to the imposition of a minimum term in Graves Act cases, . . . there may be less correlation than in non-Graves Act cases between the length of the base term and the severity of the parole ineligibility term." Id. at 81-82. See also State v. Benjamin, ___ N.J. ___, ___ (2017) (explaining that "even if the trial court finds that the mitigating factors of N.J.S.A. 2C:44- 1(a) outweigh the aggravating factors listed in subsection (b) of that statute, the court must still impose the minimum term of incarceration."). 
3. Merger. "[W]hen a Graves Act crime merges with a non- Graves Act crime, the sentence must be at least equal in length to the mandatory sentence required for the Graves Act crime. If the sentencing guidelines for the non-Graves Act crime do not permit that long a sentence, the Graves Act crime survives the merger." State v. Connell, 208 N.J. Super. 688, 696 (App. Div. 1986). 
4. Operability and Design of the Firearm. "The Graves Act contemplates a 'firearm' not in terms of a device's present operability, but in terms of its original design." State v. Gantt, 101 N.J. 573, 584 (1986). The weapon must have been designed to deliver a potentially lethal projectile; it need not be operable as well. Id. at 585. Inoperability is relevant only when substantial evidence tends to show that the weapon has changed to such a degree that it has permanently lost the characteristics of a real gun. Id. at 589. State v. Orlando, 269 N.J. Super. 116, 130-33 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994). 
5. Accomplice. An accomplice who had the purpose to promote or facilitate the crime with the use of a firearm is guilty of that crime even though he or she did not personally possess or use the firearm. State v. White, 98 N.J. 122, 130 (1984). Even where the accomplice is found guilty only of an unarmed offense, if he or she knew or had reason to know before the crime was committed that his or her cohort would possess or use a firearm during the crime or immediate flight therefrom, the Graves Act applies to the accomplice. Id. at 131. Accomplice liability depends on proof of a shared purpose. State v. Wooters, 228 N.J. Super. 171, 175, 178-79 n.1 (App. Div. 1988). 
6. The Graves Act and the No Early Release Act (NERA). Where a defendant is subject to a NERA and a Graves Act parole disqualifier, the NERA parole disqualifier will require a longer 
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mandatory minimum term, and thus, will subsume the Graves Act parole disqualifier. See State v. Garron, 177 N.J. 147, 163 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). In this situation the court should state in the judgment of conviction the crime or crimes subject to the NERA and the Graves Act to avoid confusion in the future if the defendant commits an offense that would subject him or her to the Graves Act repeat offender extended term. State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). 
7. Application for Transfer to a Drug Treatment Program. A defendant cannot seek relief under Rule 3:21-10(b)(1) (application to enter drug treatment program), until the Graves Act mandatory term has been served. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). 
8.   Extended Terms.
(a) Notice and Hearing. "[N]otice and hearing are required before a mandatory extended term may be imposed based on a prior Graves Act conviction." State v. Martin, 110 N.J. 10, 14 (1988). 
(b) Burden of Proof. The burden is on the State to prove to the sentencing judge that the defendant has a prior conviction that qualifies him or her for a Graves Act extended term. State v. Robinson, 253 N.J. Super. 346, 358 (App. Div.), certif. denied, 130 N.J. 6 (1992). Note that the Sixth Amendment is not violated by the court's finding the existence of a prior conviction as a basis to impose a sentence enhancer. State v. Franklin, 184 N.J. 516, 521 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). 
(c) Timing of Prior Conviction. To impose a Graves Act extended term, the State must establish that the defendant had a prior conviction for an enumerated offense with a firearm. State v. Hawks, 114 N.J. 359, 361, 365 (1989). Conviction for the first crime need not precede the commission of the second crime. Ibid. 
(d) Prior Conviction Pending Appeal. The court may sentence a defendant to a Graves Act extended term while the prior Graves Act conviction is pending appeal, or before the time for such an appeal has expired. State v. Haliski, 140 N.J. 1, 17-18 (1995). If the prior Graves Act 
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conviction is reversed on appeal, the extended term must be vacated upon the defendant's motion, pursuant to Rule 3:21- 10(b)(6). State v. Haliski, 140 N.J. 1, 18-20 (1995). 
(e) Convictions in the Same Proceeding. It is an open question whether an extended Graves Act sentence may be imposed based upon convictions and sentences entered in the same proceeding. State v. Rountree, 388 N.J. Super. 190, 207-09 (App. Div. 2006). 
(f) Defense Challenge to the State's Proof. The defendant may challenge the State's proof as insufficient, but if the defendant's challenge would invalidate a prior conviction, the defendant "must proceed by an appropriate application for post-conviction relief. R. 3:22. In the absence of such an application, the sentencing court is entitled to rely on the record of the prior conviction to satisfy itself that the prior conviction constitutes a Graves Act offense." State v. Jefimowicz, 119 N.J. 152, 160-61 (1990). 
(g) Multiple Graves Act Extended Terms. When sentencing more than one Graves Act offense, the judge must impose a Graves Act extended term on each conviction. State v. Robinson, 217 N.J. 594, 597 (2014) (citing State v. Connell, 208 N.J. Super. 688, 697 (App. Div. 1986)). An extended Graves Act term is not subject to the limitation in N.J.S.A. 2C:44-5(a)(2), which prohibits more than one extended term sentence, because a Graves Act extended term is the "ordinary sentence" for the crime. State v. Connell, 208 N.J. Super. 688, 691 (App. Div. 1986). 
9. Mandatory Terms, State Appeals and Double Jeopardy. The State may appeal a sentencing court's refusal to impose a Graves Act mandatory extended term based on a finding that the proof did not establish the requisite prior offenses. State v. Robinson, 253 N.J. Super. 346, 358-59 (App. Div.), certif. denied, 130 N.J. 6 (1992). On remand, the State may present additional proofs of the prior offenses only if the sentencing court first finds that to do so would not violate due process or double jeopardy. Id. at 359. See Monge v. California, 524 U.S. 721, 734, 118 S. Ct. 2246, 2253, 141 L. Ed. 2d 615, 628 (1998) (double jeopardy clause does not preclude retrial on a prior conviction allegation in a noncapital sentencing case). 
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10. Remand and Original Jurisdiction. Where a sentencing court illegally imposes a Graves Act period of parole ineligibility, the appellate court should not impose a discretionary term of parole ineligibility to correct the sentence, but rather, should remand for reconsideration of the sentence. State v. Wooters, 228 N.J. Super. 171, 174 (App. Div. 1988). However, if the reviewing court reverses a discretionary parole disqualifier and finds that the court should have imposed a Graves Act mandatory parole disqualifier, then the appellate court may amend the judgment of conviction to reflect the mandatory minimum term under the Graves Act. State v. Copeman, 197 N.J. Super. 261, 265 (App. Div. 1984). 
11. Graves Act Parole Disqualifier Exception for First-Time Offenders (N.J.S.A. 2C:43-6.2). 
(a) Constitutionality. The Graves Act parole disqualifier exception for first time offenders, N.J.S.A. 2C:43-6.2, which allows the assignment judge to eliminate or decrease to one year the parole disqualifier in the interest of justice, has withstood constitutional challenge on separation-of-powers grounds. State v. Alvarez, 246 N.J. Super. 137, 145-47 (App. Div. 1991). The "interests of justice" standard avoids arbitrary, unreasonable and capricious decision-making by the prosecutor and poses no constitutional impediment to the legislative will. Ibid. 
(b) Arbitrariness Challenge by the Defense. A defendant has the right to move before the assignment judge for a hearing to determine whether the prosecutor arbitrarily or unconstitutionally discriminated against him or her in determining whether the interests of justice warranted consent or referral for leniency pursuant to N.J.S.A. 2C:43-6.2. State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif. denied, 176 N.J. 278 (2003); State v. Alvarez, 246 N.J. Super. 137, 147-49 (App. Div. 1991); State v. Miller, 321 N.J. Super. 550, 555-56 (Law Div. 1999). "[T]he prosecutor must provide written reasons for withholding consent to a waiver in order to promote procedural fairness and to ensure meaningful judicial review." State v. Benjamin, 442 N.J. Super. 258, 266 (App. Div. 2015), affirmed as modified, ___ N.J. ___ (2017). But the defendant is "not entitled to discovery of a prosecutor's case-specific memorializations and cumulative files when challenging the denial of a Graves Act waiver . . . because there are sufficient procedural safeguards in 
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place for meaningful judicial review . . . ." State v. Benjamin, ___ N.J. ___, ___ (2017) (slip op. at 30). 
(c) Defense Request for Referral. A defendant may also request the sentencing judge refer the matter to the assignment judge for leniency. State v. Alvarez, 246 N.J. Super. 137, 141 n.2 (App. Div. 1991). 
(d) Assignment Judge Discretion. "When an application for a waiver under section 6.2 is made by motion of a prosecutor, the assignment judge or his or her designee has the authority to choose one of two sentences: he or she 'shall place the defendant on probation pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole.'" State v. Nance, ___ N.J. ___, ___ (2017) (slip op. at 22) (quoting N.J.S.A. 2C:43-6.2). While the prosecutor may argue for a certain sentence, "nothing in the statute suggests that the assignment judge or designee must accept the prosecutor's recommendation." Id. at ___ (slip op. at 22-23). 
(e) Presumption of Incarceration. N.J.S.A. 2C:43-6.2 does not exempt a defendant convicted of a first-degree or second-degree Graves Act offense from the N.J.S.A. 2C:44- 1(d) presumption of incarceration. State v. Nance, ___ N.J. ___, ___ (2017) (slip op. at 25). 
(f) Remand to Seek Leniency. Where a defendant argues at sentencing only that the Graves Act does not apply, and where that argument is rejected on appeal, the interests of justice may nevertheless militate in favor of remanding to the trial court so that the defendant can be afforded the opportunity to seek the prosecutor's consent and move for leniency under N.J.S.A. 2C:43-6.2. State v. Mello, 297 N.J. Super. 452, 467-68 (App. Div. 1997). 
12. Cruel and Unusual Punishment. Ordinarily, a Graves Act sentence will not constitute cruel and unusual punishment, even if the defendant is a youthful offender, State v. Des Marets, 92 N.J. 62, 81-82 (1983), or a law enforcement officer who needs solitary or segregated confinement, State v. Muessig, 198 N.J. Super. 197, 203-04 (App. Div.), certif. denied, 101 N.J. 234 (1985). 
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D. Assault Weapons Sentencing: Case Law 
1. 100% Parole Ineligibility. In effect, N.J.S.A. 2C:43-6(g) does not allow any possibility of parole for second, third and fourth degree offenses because the mandatory parole ineligibility terms are equal to the top of the ordinary sentencing ranges for crimes of those degrees (the ordinary ranges are: second degree crimes--five to ten years; third degree crimes--three to five years; and fourth degree crimes--a term not to exceed eighteen months). State v. Petrucci (II), 365 N.J. Super. 454, 460 n.2, 462-63 (App. Div.), certif. denied, 179 N.J. 373 (2004). 
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         XIV.  DRUG OFFENDER SENTENCING
In sentencing drug offenders, the court may impose a term of special probation, which is intended to treat a defendant's substance abuse problem and is managed by drug court personnel. If the court does not impose special probation, the defendant must be sentenced in accordance with Title 2C. Sections A and B of this chapter discuss special probation and drug court. Sections C through K discuss enhanced sentencing provisions specific to drug offenders. 
A. Special Probation: Statutory Provisions 
1. Statutory Authority for Special Probation. N.J.S.A. 2C:35- 14(a) provides that on its own initiative, or at the defendant's request, after considering all relevant information, the court may sentence a drug or alcohol dependent offender, as defined in N.J.S.A. 2C:35-2, to a five-year period of special probation if the offender is not eligible for regular probation (N.J.S.A. 2C:45-1) because the conviction carries a presumption of imprisonment or requires a period of parole ineligibility, and the court makes the following findings on the record: 
(1) The defendant underwent a professional diagnostic assessment (N.J.S.A. 2C:35-14.1) to determine whether and to what extent the defendant is drug or alcohol dependent (N.J.S.A. 2C:35-2) and whether the defendant would benefit from treatment; and 
(2) The defendant is dependent upon drugs or alcohol within the meaning of N.J.S.A. 2C:35-2, and was drug or alcohol dependent at the time of the offense; and 
(3) The defendant committed the offense while under the influence of drugs or alcohol, or to acquire property or money to support drug or alcohol dependency; and 
(4) The defendant will benefit from substance abuse treatment and monitoring, thereby reducing recidivism; and 
(5) The defendant did not possess a firearm at the time of the offense or at the time of any pending criminal charge; and 
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(6) The defendant has not been convicted on two or more separate occasions of: (i) first or second degree crimes other than those listed in the following subsection (7); or (ii) a first or second degree crime and a third degree crime, other than N.J.S.A. 2C:35-10 drug possession crimes; and 
(7) The defendant does not have pending charges or a prior conviction or delinquency adjudication for murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault, or sexual assault; and 
(8) A suitable treatment facility licensed and approved by the Division of Addiction Services is able and has agreed to provide the defendant appropriate treatment; and 
(9) A sentence of special probation will not pose a danger to the community. 
Note: In 2012 the Legislature amended N.J.S.A. 2C:35-14(a)(7) to remove robbery from the list of pending charges that made a defendant ineligible for special probation. L. 2012, c. 23. 
2. "Drug or Alcohol Dependent Persons" Defined. Pursuant to N.J.S.A. 2C:35-2, a drug or alcohol dependent person is a person who "has been in a state of psychic or physical dependence, or both, arising from the use of" drugs or alcohol "on a continuous or repetitive basis. . . . [D]ependence is characterized by behavioral and other responses, including but not limited to a strong compulsion to take the substance on a recurring basis in order to experience its psychic effects, or to avoid the discomfort of its absence." 
3. Diagnostic Assessment Requirement. N.J.S.A. 2C:35-14.1(a) provides that the court shall require a defendant to submit to a professional diagnostic assessment if the following circumstances exist: 
(1) The court has a reasonable basis to believe that the defendant may be drug dependent, as defined in N.J.S.A. 2C:35-2; and 
     (2)  The crime the defendant committed is:
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(a) Subject to a presumption of imprisonment pursuant to N.J.S.A. 2C:44-1(d); or 
(b) A third degree crime and the defendant has previously been convicted of a crime subject to the presumption of imprisonment or that resulted in a term of imprisonment; and 
(3) The defendant is eligible for consideration of special probation pursuant to N.J.S.A. 2C:35-14. 
Exception to the Diagnostic Assessment Requirement. The court need not order diagnostic testing if "it is clearly convinced that such assessment will not serve any useful purpose. If the court does not order a diagnostic assessment, the court shall place on the record the reasons for its decision." N.J.S.A. 2C:35-14.1(c). 
4. Reasonable Basis to Believe a Person Is Drug or Alcohol Dependent. Pursuant to N.J.S.A. 2C:35-14.1(b), any of the following circumstances constitute a reasonable basis to believe that a person may be drug or alcohol dependent: 
     (1) The offense involved a controlled dangerous substance;
(2) The defendant has previously been convicted of a drug offense, or "was admitted to pretrial intervention or supervisory treatment, or received a conditional discharge for a charge involving a controlled dangerous substance"; 
(3) The defendant has a pending controlled dangerous substance charge in this State or another jurisdiction; 
(4) The defendant received drug treatment or counseling in the past; 
(5) "[T]he defendant appears to have been under the influence of a controlled dangerous substance during the commission of the present offense, or it reasonably appears that the present offense may have been committed to acquire property or monies to purchase" drugs for the defendant; 
(6) "[T]he defendant admits to the unlawful use of a controlled dangerous substance within the year preceding the arrest for the present offense"; 
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(7) "[T]he defendant has had a positive drug test within the last 12 months"; or 
(8) "[T]here is information, other than the circumstances enumerated in paragraphs (1) through (7) of this subsection, which indicates that the defendant may be a drug dependent person or would otherwise benefit by undergoing a professional diagnostic assessment within the meaning of" N.J.S.A. 2C:35-14(a)(1). 
5. Special Probation Ineligibility. Pursuant to N.J.S.A. 2C:35-14(b), a defendant is not eligible for special probation if the defendant is convicted of or adjudicated delinquent for: 
     (1)  A first degree crime; or
(2) Any of the following first or second degree offenses, which are subject to the No Early Release Act (N.J.S.A. 2C:43-7.2) (NERA), "other than a crime of the second degree involving N.J.S.A. 2C:15-1 (robbery) or N.J.S.A. 2C:18-2 (burglary)": 
  • ·  Murder (N.J.S.A. 2C:11-3); 

  • ·  Aggravated manslaughter or manslaughter (N.J.S.A. 
    2C:11-4); 

  • ·  Vehicular homicide (N.J.S.A. 2C:11-5); 

  • ·  Aggravated assault (N.J.S.A. 2C:12-1(b)); 

  • ·  Disarming a law enforcement officer (N.J.S.A. 2C:12- 11(b)); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Sexual assault (N.J.S.A. 2C:14-2(b) and (c)(1)); 

  • ·  Robbery (N.J.S.A. 2C:15-1); 

  • ·  Carjacking (N.J.S.A. 2C:15-2); 

  • ·  Aggravated arson (N.J.S.A. 2C:17-1(a)(1)); 180 

  • ·  Burglary (N.J.S.A. 2C:18-2); 

  • ·  Extortion (N.J.S.A. 2C:20-5(a)); 

  • ·  Booby traps in manufacturing or distributing a controlled dangerous substance (N.J.S.A. 2C:35- 4.1(b)); 

  • ·  Drug induced deaths (N.J.S.A. 2C:35-9); 

  • ·  Terrorism (N.J.S.A. 2C:38-2); 

  • ·  Producing or possessing chemical, biological, nuclear, or radiological weapons (N.J.S.A. 2C:38-3); 

  • ·  Racketeering in the first degree (N.J.S.A. 2C:41-2); 

  • ·  Firearms trafficking (N.J.S.A. 2C:39-9(i)); and 

  • ·  Child pornography (N.J.S.A. 2C:24-4(b)(3)). 
    (3) A crime, except drug distribution within 1000 feet of school property (N.J.S.A. 2C:35-7), "for which a mandatory minimum period of incarceration is prescribed under" Chapter 35 of Title 2C "or any other law"; or 
    (4) "[A]n offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property." 
    Note: In 2012 the Legislature removed second degree burglary (N.J.S.A. 2C:18-2) and robbery (N.J.S.A. 2C:15-1) from the list of NERA offenses that rendered a defendant ineligible for special probation. N.J.S.A. 2C:35-14(c), deleted by, L. 2012, c. 23. It also eliminated the prosecutor’s ability to object to imposition of special probation. Ibid. 

6. Presumption of Special Probation for Certain Drug Offenders. N.J.S.A. 2C:35-14.2(b) instructs that the court shall sentence a defendant to special probation, regardless of whether the defendant requests it or consents to it, if diagnostic testing concludes that the defendant is a drug dependent person, as that term is defined in N.J.S.A. 2C:35-2, and the court 
181 
concludes that the defendant is a person in need of treatment, as defined in N.J.S.A. 2C:35-14.2(f), unless: 
(1) "[T]he court finds that a sentence of imprisonment must be imposed consistent with the provisions of chapters 43 and 44 of Title 2C"; or 
     (2) The court is clearly convinced that:
(a) The treatment, monitoring and supervision services afforded by regular probation (N.J.S.A. 2C:45-1) adequately address the defendant's clinical needs; and 
(b) "[T]he defendant's treatment needs would not be better addressed by sentencing the defendant to special probation pursuant to N.J.S.A. 2C:35-14"; and 
(c) "[N]o danger to the community would result from placing the person on regular probation"; and 
(d) A sentence of regular probation would be consistent with the provisions of chapters 43 and 44 of Title 2C. 
7. "Person in Need of Treatment" Defined. N.J.S.A. 2C:35- 14.2(f) provides that a "person in need of treatment" means a defendant who: 
(1) Is a drug dependent person as defined in N.J.S.A. 2C:35-2; and 
     (2)  Has been convicted of:
(a) A crime subject to a presumption of imprisonment, pursuant to N.J.S.A. 2C:44-1(d); or 
(b) A third degree crime "if the person has previously been convicted of a crime subject to a presumption of imprisonment or a crime that resulted in the imposition of a State prison term"; and 
(3) "[I]s eligible to be considered for a sentence to special probation," pursuant to N.J.S.A. 2C:35-14. 
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Appeal by the State. If the court imposes a sentence of regular probation (N.J.S.A. 2C:45-1) instead of special probation under N.J.S.A. 2C:35-14.2, the sentence shall not be final for ten days to allow the prosecutor time to file an appeal. N.J.S.A. 2C:35-14.2(d). 
8. Presumption of Inpatient Treatment for Certain Defendants. 
Unless the court suspends inpatient treatment and imposes outpatient treatment pursuant to N.J.S.A. 2C:35-14(j) (discussed below), N.J.S.A. 2C:35-14(d) requires the court to order the defendant to treatment at a residential facility if the defendant: (i) is convicted of or adjudicated delinquent for a second degree crime or for drug distribution within 1000 feet of school property (N.J.S.A. 2C:35-7); or (ii) was previously convicted of or adjudicated delinquent for manufacturing, distributing or dispensing drugs (N.J.S.A. 2C:35-5). N.J.S.A. 2C:35-14(d). If the facility cannot house the defendant immediately, then the defendant shall be incarcerated until he or she can be transferred. Ibid. 
(a) Duration of Residential Treatment. The defendant must serve a minimum of six months at the treatment facility. N.J.S.A. 2C:35-14(d). The term shall end upon successful completion of the treatment program, and shall not exceed five years. Ibid. "Upon successful completion of the required residential treatment program, the person shall complete the period of special probation . . . with credit for time served for any imprisonment served as a condition of probation and credit for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility." Ibid. 
(b) Reporting Requirements. N.J.S.A. 2C:35-14(e) provides that the probation department, or other appropriate agency designated by the court, shall periodically provide reports to the court on the defendant's progress and shall immediately notify the court of a refusal to submit to a drug or alcohol test. Ibid. The treatment facility must "promptly report" to the probation department or designated agency all "significant failures" by the defendant and must immediately notify the prosecutor and the court of any action that would constitute an escape. Ibid. 
9. Outpatient Treatment as a Condition of Suspended Inpatient Treatment. N.J.S.A. 2C:35-14(j) provides that if the defendant 
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meets the criteria for inpatient treatment set forth in N.J.S.A. 2C:35-14(d), "the court may temporarily suspend imposition of all or any portion of the term of commitment . . . and may instead order the person to enter a nonresidential treatment program, provided that the court finds on the record that": 
(1) The diagnostic assessment recommends that "the proposed course of nonresidential treatment services is clinically appropriate and adequate to address the person's treatment needs"; and 
(2) The defendant's participation in outpatient treatment will not danger the community; and 
(3) " [A] suitable treatment provider is able and has agreed to provide clinically appropriate nonresidential treatment services." 
(a) Special Conditions of Outpatient Treatment In Lieu of Inpatient Treatment. A defendant sentenced to nonresidential treatment in lieu of residential treatment pursuant to N.J.S.A. 2C:35-14(j) must undergo urine testing at least once a week. N.J.S.A. 2C:35-14(k)(1). Additionally, "the court shall impose appropriate curfews or other restrictions on the person's movements, and may order the person to wear electronic monitoring devices to enforce such curfews or other restrictions." Ibid. 
(b) Appeal by the State. If the court imposes nonresidential treatment over the prosecutor's objection, the sentence shall not become final for ten days to permit the State to file an appeal. N.J.S.A. 2C:35-14(j). 
(c) Permanent Suspension of Inpatient Treatment Based on Defendant's Progress. If the defendant successfully progresses in outpatient treatment for six months and there is a substantial likelihood that he or she will successfully complete the program, the court may permanently suspend residential treatment, in which case the N.J.S.A. 2C:35-14(k) special monitoring provisions will no longer apply. N.J.S.A. 2C:35-14(j). 
10. Mandatory Conditions of Special Probation. As conditions of special probation the defendant must: 
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  • ·  "[E]nter a residential treatment program at a facility licensed and approved by the Division of Addiction Services" or participate in a nonresidential treatment program offered by a licensed and approved treatment provider, N.J.S.A. 2C:35-14(a); and 

  • ·  Comply with the treatment program rules and with the requirements of treatment, N.J.S.A. 2C:35-14(a); and 

  • ·  Submit to periodic urine testing for drugs or alcohol, N.J.S.A. 2C:35-14(a); and 

  • ·  Comply with any other reasonable terms and conditions that the court may impose pursuant to N.J.S.A. 2C:45-1 (the regular probation statute), N.J.S.A. 2C:35-14(a); and 

  • ·  Contribute to the cost of treatment, N.J.S.A. 2C:35- 14(h); and 

  • ·  Pay any applicable fine, penalty, fee and restitution award, N.J.S.A. 2C:35-14(i). 
    11. Modifications of Special Probation. At any time during the special probation term the court may change a defendant's treatment to provide inpatient or outpatient services if the modification "is clinically appropriate and necessary to address the person's present treatment needs." N.J.S.A. 2C:35-14(j). 
    12. Early Discharge From Special Probation. N.J.S.A. 2C:35- 14(l) provides that if the defendant "has made exemplary progress in the course of treatment, the court may, upon recommendation of the person's supervising probation officer or on the court's own motion, and upon notice to the prosecutor, grant early discharge from a term of special probation provided that the person: (1) has satisfactorily completed the treatment program ordered by the court; (2) has served at least two years of special probation; (3) did not commit a substantial violation of any term or condition of special probation, including but not limited to a positive urine test, within the preceding 12 months; and (4) is not likely to relapse or commit an offense if probation supervision and related services are discontinued." 
    13. Refusal to Give a Urine Sample. If the defendant refuses to undergo urine testing for drug or alcohol usage the court 

185 
shall permanently revoke special probation unless the court imposes a brief jail term followed by continued special probation, pursuant to N.J.S.A. 2C:35-14(g). N.J.S.A. 2C:35- 14(f)(6). 
14. Failure to Complete or Comply With a Treatment Program. 
"Failure to complete successfully the required treatment program shall constitute a violation of the person's special probation." N.J.S.A. 2C:35-14(f)(7). 
15. Escape From Inpatient Treatment. If the defendant commits an act that would constitute an escape from a residential treatment facility "the court shall forthwith permanently revoke the person's special probation." N.J.S.A. 2C:35-14(f)(6). 
16. Violation of Special Probation. In the event the defendant violates a term of special probation, a probation officer or prosecutor may bring an action to revoke special probation, or the court may initiate the action on its own. N.J.S.A. 2C:35- 14(f)(7). In deciding whether to revoke special probation the court "shall consider the nature and seriousness of the present infraction and any past infractions in relation to the person's overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider," giving "added weight" to the provider's opinion that the defendant is not amenable to treatment, is unlikely to successfully complete treatment, or should be resentenced to punishment other than special probation. N.J.S.A. 2C:35-14(f)(3). 
(a) First Violation. The court may revoke special probation upon a first violation of any term. N.J.S.A. 2C:35-14(f)(1). 
(b) Subsequent Violation. The court shall revoke special probation upon a second or subsequent violation unless the court (1) imposes a brief term of incarceration, pursuant to N.J.S.A. 2C:35-14(g), or (2) "the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue . . . and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result." N.J.S.A. 2C:35-14(f)(2). The prosecutor may appeal a decision to allow the defendant to continue special probation. Ibid. 
186 
(c) Brief Incarceration in Lieu of Revocation. When the defendant is subject to the presumption of revocation on a second or subsequent violation (N.J.S.A. 2C:35-14(f)(2)), "or when the person refuses to undergo drug or alcohol testing" (N.J.S.A. 2C:35-14(f)(6)), "the court may, in lieu of permanently revoking the person's special probation, impose a term of incarceration for a period of not less than 30 days nor more than six months," followed by continued special probation. N.J.S.A. 2C:35-14(g). "[T]he court shall consider the recommendations of the treatment provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated." Ibid. The court may impose a brief term of imprisonment in lieu of revocation only once, "unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition." The prosecutor may appeal the decision to impose a subsequent term of imprisonment in lieu of revocation. N.J.S.A. 2C:35-14(g). 
(d) Additional Terms of Special Probation In Lieu of Revocation. In the event the court continues special probation after a violation, the court "shall order the person to comply with such additional terms and conditions, including but not limited to more frequent drug or alcohol testing, as are necessary to deter and promptly detect any further violation." N.J.S.A. 2C:35-14(f)(5). 
17. Resentencing on the Original Offense After Revocation of Special Probation. If the court revokes special probation, the court shall "conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing," and "impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense." N.J.S.A. 2C:35-14(f)(4). In the event the court imposes incarceration, the defendant shall receive credit for time served in custody or in a residential treatment facility. N.J.S.A. 2C:35-14(f)(4). A defendant who is sentenced to imprisonment for failure to comply with the terms of special probation shall be ineligible for transfer to the Intensive Supervision Program (N.J.S.A. 2C:43- 11). N.J.S.A. 2C:35-14(f)(7). 
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B. Special Probation and Drug Court: Case Law 
1. Purpose of Special Probation. "Special probation is designed to divert otherwise prison-bound offenders into an intensive and highly specialized form of probation designed to 'address in a new and innovative way the problem of drug- dependent offenders caught in a never-ending cycle of involvement in the criminal justice system.'" State v. Bishop, 429 N.J. Super. 533, 540 (App. Div.) (quoting State v. Meyer, 192 N.J. 421, 434-35 (2007)), aff'd o.b., 223 N.J. 290 (2015). 
2. Drug Court Described. Drug courts are "a highly specialized team process that function within the existing Superior Court structure to address non-violent drug-related cases." Admin. Office of the Courts, Manual for Operation of Adult Drug Courts In New Jersey, Directive #2-02, at 3 (July 2002) (Drug Court Manual), http://www.judiciary.state.nj.us/ directive/criminal/dir_02_02.pdf. The team comprises drug court judges, prosecutors, defense attorneys and drug treatment professionals who closely monitor drug-dependent offenders sentenced to special probation or to regular probation with mandatory drug treatment. Ibid. 
Drug courts are not creatures of statute and are not mentioned in Title 2C. State v. Meyer, 192 N.J. 421, 434-35 (2007).
" Although Drug Courts are involved in the implementation of the 'special probation' disposition contained in N.J.S.A. 2C:35-14, they are primarily the creation of our Supreme Court under the Court's 'ultimate constitutional authority to administer our court system, including the drug court program,' and are governed by the Drug Court Manual." State v. Stalter, 440 N.J. Super. 548, 554 (App. Div.) (quoting State v. Meyer, 192 N.J. 421, 424 (2007)), certif. denied, 223 N.J. 355 (2015). 
"What distinguishes Drug Courts from other courts is the 'oversight and personal involvement of the drug court judge in the treatment process.' A team approach is a distinctive feature of Drug Court. The judge leads court staff, probation officers, treatment counselors, substance abuse evaluators, and the prosecutor and defense attorney to monitor a participant's recovery." State v. Meyer, 192 N.J. 421, 428 (2007) (quoting Drug Court Manual at 3). 
3. Drug Court Tracks. The Drug Court Manual provides for two tracks. 
188 
(a) Track One. The first track encompasses defendants who are subject to a presumption of imprisonment and are sentenced to special probation. State v. Stalter, 440 N.J. Super. 548, 554 (App. Div.), certif. denied, 223 N.J. 355 (2015); Drug Court Manual at 16. 
(b) Track Two. The second track covers drug-dependent nonviolent offenders who do not qualify for special probation but would likely benefit from participation in drug court. Drug Court Manual at 16. Offenders within the second track are sentenced to regular probation with the condition that they participate in drug treatment. Id. at 16-17. 
Note: The Drug Court Manual has not been amended to reflect the L. 2012, c. 23, changes to N.J.S.A. 2C:35- 14(b). State v. Maurer, 438 N.J. Super. 402, 414 (App. Div. 2014). Those changes removed from the list of offenses that rendered a defendant ineligible for special probation the crimes of second degree burglary (N.J.S.A. 2C:18-2) and robbery (N.J.S.A. 2C:15-1). L. 2012, c. 23. 
4. Drug Dependency at Sentencing Not Required. To be eligible for admission to drug court, a defendant need not be dependent on drugs at the time of sentencing. State v. Clarke, 203 N.J. 166, 181 (2010). 
5. Drug Court Statute and Manual, De Novo Review. "[A] trial court's application of the Drug Court Statute and Manual . . . involves a question of law," and thus is subject to de novo review. State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014). 
6. Merged Offenses and Drug Court Eligibility. An offense that precludes a sentence of special probation, pursuant to N.J.S.A. 2C:35-14(b), survives merger and renders a defendant ineligible for special probation. State v. Ancrum, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 18-19) (reversing a sentence of special probation because the defendant committed an aggravated assault). The merged offense is not extinguished for purposes of determining special-probation eligibility. Ibid. 
7. Violation of Drug Court and Jail Credits. Pursuant to N.J.S.A. 2C:35-14(f)(4), a defendant who violated a term of special probation is entitled to receive jail credit against the violation of special probation sentence for the time the 
189 
defendant spent in compliance with the residential treatment program. State v. Stalter, 440 N.J. Super. 548, 554 (App. Div.), certif. denied, 223 N.J. 355 (2015). The same is not true for a defendant who violated a term of regulation probation under Track Two of Drug Court because the treatment that a defendant receives under Track Two is not custodial for purposes of jail credits. Ibid. 
8. Resentencing the Original Charge Following Revocation of Special Probation. 
(a) Mandatory Terms Applicable to Original Charge. In the event the court permanently revokes special probation, "mandatory periods of parole ineligibility and mandatory extended term provisions that existed at the time of original sentencing survive during the term of special probation and remain applicable at the time of resentencing" on the parole violation. State v. Bishop, 429 N.J. Super. 533, 536 (App. Div.), aff'd o.b., 223 N.J. 290 (2015). 
(b) De Novo Review of Aggravating and Mitigating Factors. 
Pursuant to N.J.S.A. 2C:35-14(f), in resentencing after a violation of special probation, the court conducts a de novo review of the aggravating and mitigating factors, which is different from the Baylass standard applicable to violations of regular probation. State v. Bishop, 429 N.J. Super. 533, 546 (App. Div.), aff'd o.b., 223 N.J. 290 (2015). See the chapter on probation for a discussion of the Baylass standard. 
C. Fines Specific to Drug Offenses: Statutory Provisions 
The following statutes provide specific fines for certain drug offenses. The fines apply to all drug offender sentences, including special probation. N.J.S.A. 2C:35-14(i). 
1. Leader of Narcotics Trafficking Network. N.J.S.A. 2C:35-3 provides that the court may "impose a fine not to exceed $750,000 or five times the street value of the controlled dangerous substance, controlled substance analog, gamma hydroxybutyrate or flunitrazepam involved, whichever is greater." 
190 
2. Maintaining or Operating a Drug Production Facility. 
N.J.S.A. 2C:35-4 allows "a fine not to exceed $750,000 or five times the street value of all controlled dangerous substances, controlled substance analogs, gamma hydroxybutyrate or flunitrazepam at any time manufactured or stored at such premises, place or facility, whichever is greater." 
3. Manufacturing and Distributing a Controlled Dangerous Substance. N.J.S.A. 2C:35-5(b) authorizes a fine up to $300,000 or $500,000, depending on the offense, for first degree drug manufacturing and distribution; $25,000 or $75,000 for a third degree crime (depending on the offense); and $25,000 for certain fourth degree crimes. 
4. Manufacturing and Dispensing Gamma Hydroxybutyrate. 
N.J.S.A. 2C:35-5.2(b) authorizes a fine up to $150,000 for manufacturing and dispensing gamma hydroxybutyrate. 
5. Manufacturing and Dispensing Flunitrazepam. N.J.S.A. 2C:35-5.3(b) and (c) allows a fine not to exceed $250,000 for first degree manufacturing and dispensing flunitrazepam, and $150,000 for a second degree offense. 
6. Employing a Juvenile in a Drug Distribution Scheme. 
N.J.S.A. 2C:35-6 allows "a fine not to exceed $500,000 or five times the street value of the controlled dangerous substance or controlled substance analog involved, whichever is greater," for employing a juvenile in a drug distribution scheme. 
7. Manufacturing, or Dispensing Drugs on or Near School Property. N.J.S.A. 2C:35-7(a) authorizes a fine not to exceed $150,000 for manufacturing and distributing drugs on or near school property. 
8. Drug Distribution to a Minor or a Pregnant Female. 
N.J.S.A. 2C:35-8 requires the court to impose, upon application of the prosecutor, "twice the term of imprisonment, fine and penalty, including twice the term of parole ineligibility, if any." If the defendant is convicted of more than one offense, the court must impose one enhanced sentence on the most serious offense. Ibid. The prosecutor must establish the basis for the enhanced sentence by a preponderance of the evidence, and the court must hold a hearing on the matter. Ibid. 
191 
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject to waiver under N.J.S.A. 2C:35-12. See section J of this chapter for discussion on the waiver provisions. 
9. Possession of a Controlled Dangerous Substance or Analog. 
N.J.S.A. 2C:35-10(a)(1) to (3) authorize a fine not to exceed $35,000 for third degree drug possession, and $15,000, or $25,000 for a fourth degree crime, depending on the circumstances. 
10. Possession of Gamma Hydroxybutyrate. N.J.S.A. 2C:35- 10.2(b) authorizes a fine up to $100,000 for possession of gamma hydroxybutyrate. 
11. Possession of Flunitrazepam. N.J.S.A. 2C:35-10.3(b) allows a fine up to $100,000 for possession of flunitrazepam. 
12. Distribution of a Prescription Legend Drug. N.J.S.A. 2C:35-10.5(a)(3) and (4) authorize a fine of up to $200,000 or $300,000, depending on the circumstances, for distribution of a prescription legend drug. 
13. Possession or Distribution of an Imitation Controlled Dangerous Substance. N.J.S.A. 2C:35-11(d) authorizes a fine not to exceed $200,000 for possession or distribution of an imitation drug. 
14. Obtaining a Controlled Dangerous Substance by Fraud. 
N.J.S.A. 2C:35-13 allows a fine up to $50,000 for fraudulently obtaining a drug. 
D. Penalties, Fees and Assessments Specific to Drug Offenses: Statutory Provisions 
The following penalties, fees and assessments apply to all drug offender sentences, including special probation. N.J.S.A. 2C:35-14(i). 
1. Drug Offender Restraining Orders. N.J.S.A. 2C:35-5.7(h) provides: " When a person is convicted of or adjudicated delinquent for any criminal offense, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to N.J.S.A. 2C:35-5.9 [certification of offense location] and except as provided in subsection e. of this section, shall, by 
192 
separate order or within the judgment of conviction, issue an order prohibiting the person from entering" the place where the offense occurred. 
(a) Exception. N.J.S.A. 2C:35-5.7(e) provides: "The court may forego issuing a restraining order . . . only if the defendant establishes by clear and convincing evidence that": 
(1) "the defendant lawfully resides at or has legitimate business on or near the place, or otherwise legitimately needs to enter the place. In such an event, the court shall not issue" a restraining order "unless the court is clearly convinced that the need to bar the person from the place in order to protect the public safety and the rights, safety and health of the residents and persons working in the place outweighs the person's interest in returning to the place." The court may also impose an order permitting entry with conditions; or 
(2) imposition of a restraining order "would cause undue hardship to innocent persons and would constitute a serious injustice which overrides the need to protect the rights, safety and health of persons residing in or having business in the place." 
(b) Appeal by the State. If the court denies a request to impose a restraining order, the sentence shall not be final for ten days to allow the State time to file an appeal. N.J.S.A. 2C:35-5.7(k). 
2. Drug Enforcement and Demand Reduction Penalty for Certain Offenses. N.J.S.A. 2C:35-5.11 provides: "Any person who possesses, distributes, dispenses or has under his control with intent to distribute or dispense 3,4-methylenedioxymeth- amphetamine, 3,4-methylenedioxyamphetamine, gammabutyrolactone, gamma hydroxybutyrate or flunitrazepam, or a controlled substance analog of any of these substances, shall, . . . be subject to a drug enforcement and demand reduction penalty of twice the amount otherwise applicable to the offense." 
3. Drug Distribution to a Minor or a Pregnant Female. 
N.J.S.A. 2C:35-8 requires the court to impose, upon application of the prosecutor, "twice the term of imprisonment, fine and penalty, including twice the term of parole ineligibility, if 
193 
any, authorized or required to be imposed by" N.J.S.A. 2C:35- 5(b) (drug distribution) or N.J.S.A. 2C:35-7 (distribution within a school zone) "or any other provision of this title." If the defendant is convicted of more than one offense, the court must impose one enhanced sentence on the most serious offense. Ibid. The prosecutor must establish the basis for the enhanced sentence by a preponderance of the evidence, and the court must hold a hearing on the matter. Ibid. 
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject to waiver under N.J.S.A. 2C:35-12. See section J of this chapter for a discussion of the waiver provisions. 
4. Possession of a Controlled Dangerous Substance or Analog. 
N.J.S.A. 2C:35-10(a) requires the defendant to "perform not less than 100 hours of community service" if the court does not impose a prison term and the defendant committed the crime while inside a school bus or within 1000 feet of school property. 
5. Drug Enforcement and Demand Reduction Penalty. N.J.S.A. 2C:35-15(a)(1) requires the court to impose the following drug enforcement and demand reduction (DEDR) penalties on anyone convicted of a Chapter 35 or 36 drug offense: 
  • ·  $3000 for a first degree crime; 

  • ·  $2000 for a second degree crime; 

  • ·  $1000 for a third degree crime; 

  • ·  $750 for a fourth degree crime; and 

  • ·  $500 for a disorderly persons or petty disorderly persons offense. 
    (a) Multiple Offenses. N.J.S.A. 2C:35-15(a)(2)(a) and (b) provide that the court may, in its discretion, impose one penalty based on the highest degree offense if: (1) the defendant was not placed in supervisory treatment or ordered to perform reformative service; (2) "multiple penalties would constitute a serious hardship that outweighs the need to deter the defendant from future criminal activity"; and (3) "imposition of a single penalty would foster the defendant's rehabilitation." 

194 
(b) Treatment Program in Lieu of Payment. N.J.S.A. 2C:35- 15(e) authorizes the court to suspend collection of the penalty "provided the person is ordered by the court to participate in a drug or alcohol rehabilitation program," and the defendant "agrees to pay for all or some portion of the costs associated with the rehabilitation." Upon proof of successful completion of the program the defendant may request the court reduce the penalty by any amount the defendant paid for participation in the program. Ibid. 
(c) Service in Lieu of Payment. N.J.S.A. 2C:35-15(f) provides that the defendant "may propose to the court and the prosecutor a plan to perform reformative service in lieu of payment of up to one-half of the penalty amount imposed." 
6. Drug Offenses and License Forfeiture. N.J.S.A. 2C:35-16(a) requires forfeiture of a defendant's driver's license for a period between six months and two years absent compelling circumstances and upon conviction of a drug offense under Chapter 35 or 36 of Title 2C. "[C]ompelling circumstances warranting an exception exist if the forfeiture . . . will result in extreme hardship and alternative means of transportation are not available." 
Post-Sentencing Motion to Revoke the License Suspension. 
N.J.S.A. 2C:35-16(d) allows the defendant to request the court revoke a remaining license suspension term based on compelling circumstances. 
7. Controlled Dangerous Substance Lab Fee. N.J.S.A. 2C:35- 20(a) and (b) require that: a $50 criminal laboratory analysis fee be imposed on anyone convicted of a Chapter 35 drug offense; a $50 criminal laboratory fee be imposed on anyone placed in supervisory treatment pursuant to N.J.S.A. 2C:36A-1 or N.J.S.A. 2C:43-12; and a $25 laboratory analysis fee be imposed on anyone adjudicated delinquent for a Chapter 35 offense. 
8. Anti-Drug Profiteering Penalty. N.J.S.A. 2C:35A-3 provides that where a person has been convicted of a Chapter 35 or 36 drug crime, any street gang crime, as defined by N.J.S.A. 2C:44- 3(h), "or an attempt or conspiracy to commit such a crime, the court shall, upon the application of the prosecutor, sentence the person to pay a monetary penalty" "provided the court finds at a hearing, which may occur at the time of sentencing, that 
195 
the prosecutor has established by a preponderance of the evidence one or more of" the following grounds: 
  • ·  The defendant was convicted of violating N.J.S.A. 2C:35-3 (leader of a narcotics trafficking network), N.J.S.A. 2C:5-2(g) (leader of organized crime), or a Chapter 41 racketeering offense that involved the manufacture, distribution, possession with intent to distribute, or transportation of any controlled dangerous substance or analog, N.J.S.A. 2C:35A-(b)(1); or 

  • ·  "A defendant is a drug profiteer when the conduct 

constituting
knowingly
distribution
dangerous substance, controlled substance analog or drug paraphernalia as a substantial source of livelihood," N.J.S.A. 2C:35A-3(b)(2); or 
  • ·  "A defendant is a wholesale drug distributor when the conduct constituting the crime involves the manufacture, distribution or intended or attempted distribution of a controlled dangerous substance or controlled substance analog to any other person for pecuniary gain, knowing, believing, or under circumstances where it reasonably could be assumed that such other person would in turn distribute the substance to another or others for pecuniary gain." N.J.S.A. 2C:35A-3(b)(3)(a). If the sole basis for the penalty is the defendant's status as a wholesale distributor, the court shall not impose the penalty "if the defendant establishes by a preponderance of the evidence . . . that his participation in the conduct constituting the crime was limited solely to operating a conveyance used to transport a controlled dangerous substance or controlled substance analog, or loading or unloading the substance into such a conveyance or storage facility," N.J.S.A. 2C:35A-3(b)(3)(b); or 

  • ·  "The defendant is a professional drug distributor," N.J.S.A. 2C:35A-3(b)(4); or 

  • ·  "The defendant was involved in criminal street gang related activity," N.J.S.A. 2C:35A-3(b)(5). 

the crime shows that the engaged in the illegal 
person has manufacture, controlled 
or transportation of any 
196 
Penalty Amounts. N.J.S.A. 2C:35A-4 provides the following penalty amounts, which may be paid in installments, N.J.S.A. 2C:35A-6: 
  • ·  $200,000 (first degree crime); $100,000 (second degree crime); $50,000 (third degree crime); $25,000 (fourth degree crime); or 

  • ·  "[T]hree times the street value of all controlled dangerous substances or controlled substance analogs involved, or three times the market value of all drug paraphernalia involved, if this amount is greater than that provided" above; or 

  • ·  "[A]n amount equal to three times the value of any benefit illegally obtained by the actor for himself or another, or any injury to or benefit deprived of another." 
    Note: This statute is subject to the N.J.S.A. 2C:35-12 waiver provision, discussed further in section J of this chapter. 
    9. Drug Abuse Education Assessment. N.J.S.A. 2C:43-3.5(a) requires the court to impose a $50 assessment for each drug offense under Chapter 35 or 36 of Title 2C. 

E. Merger of Certain Drug Offenses: Statutory Provisions 
The following statutes prohibit certain drug offenses from merging into other offenses. For purposes of special probation, the court need not determine whether offenses merge because eligibility is based on the defendant's conviction and substance abuse. 
1. Leader of a Narcotics Trafficking Network. N.J.S.A. 2C:35- 3 precludes merger with any offense that is the object of the conspiracy. 
2. Booby Traps in the Manufacturing or Distribution of Drugs. 
N.J.S.A. 2C:35-4.1(e) prohibits the conviction from merging with a conviction for any offense in Chapter 35, or for a conspiracy or attempt to commit an offense under Chapter 35. 
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3. Employing a Juvenile in a Drug Distribution Scheme. 
N.J.S.A. 2C:35-6 provides that the conviction shall not merge with a conviction for a violation of N.J.S.A. 2C:35-3 (leader of narcotics trafficking network), N.J.S.A. 2C:35-4 (maintaining or operating a CDS production facility), N.J.S.A. 2C:35-5 (manufacturing, distributing or dispensing), or N.J.S.A. 2C:35-9 (strict liability for drug induced death). 
4. Manufacturing, Distributing or Dispensing a Controlled Dangerous Substance on School Property. N.J.S.A. 2C:35-7(c) precludes the conviction from merging with a conviction under N.J.S.A. 2C:35-5 (manufacturing, distributing or dispensing) or N.J.S.A. 2C:35-6 (employing a juvenile in a drug distribution scheme). 
5. Drug Distribution Within 500 Feet of Public Property. 
N.J.S.A. 2C:35-7.1(c) precludes merger with a conviction under N.J.S.A. 2C:35-5 (manufacturing, distributing or dispensing), or N.J.S.A. 2C:35-6 (employing a juvenile in a drug distribution scheme). 
6. Drug Induced Death. N.J.S.A. 2C:35-9(d) precludes merger "with a conviction for leader of narcotics trafficking network, maintaining or operating a controlled dangerous substance production facility, or for unlawfully manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute or dispense the controlled dangerous substance or controlled substance analog which resulted in the death." 
7. Possession of a Weapon During a Drug or Bias Crime. 
N.J.S.A. 2C:39-4.1(d) prohibits merger with any of the following offenses: 
  • ·  Leader of a narcotics trafficking network (N.J.S.A. 2C:35-3); 

  • ·  Maintaining or operating a drug production facility (N.J.S.A. 2C:35-4); 

  • ·  Manufacturing or distributing drugs (N.J.S.A. 2C:35-5); 

  • ·  Manufacturing and dispensing Gamma Hydroxybutyrate 
           (N.J.S.A. 2C:35-5.2);
  •                               198


  • ·  Manufacturing and dispensing Flunitrazepam (N.J.S.A. 2C:35-5.3); 

  • ·  Employing a juvenile in a drug distribution scheme (N.J.S.A. 2C:35-6); 

  • ·  Possession of drugs on or near school property (N.J.S.A. 2C:35-7); 

  • ·  Distribution or possession of drugs on public property (N.J.S.A. 2C:35-7.1); 

  • ·  Possession, distribution or manufacturing imitation drugs (N.J.S.A. 2C:35-11); and 

  • ·  Bias intimidation (N.J.S.A. 2C:16-1). 

F. Standards Relating to Imprisonment: Statutory 
Provisions 
1. Presumption of Non-Imprisonment Inapplicable to Distribution to a Minor or Pregnant Female. While third degree crimes are usually subject to the presumption of non- imprisonment, N.J.S.A. 2C:44-1(e), the crime of drug distribution to a minor or a pregnant female is not subject to the presumption of non-imprisonment. N.J.S.A. 2C:35-8. 
2. Enhanced Ordinary Terms for Certain Offenses. The following offenses require enhanced ordinary terms. 
(a) Leader of a Narcotics Trafficking Network: life imprisonment with a twenty-five-year period of parole ineligibility. N.J.S.A. 2C:35-3. 
Note: Pursuant to N.J.S.A. 2C:35-12, the State may waive this enhanced term. See section J of this chapter for a discussion of the waiver provision. 
(b) Drug Distribution to a Minor or a Pregnant Female: "twice the term of imprisonment, fine and penalty . . . authorized or required to be imposed by" any provision of Title 2. N.J.S.A. 2C:35-8. 
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Note: Pursuant to N.J.S.A. 2C:35-12, the State may waive this enhanced term. See section J of this chapter for a discussion of the waiver provision. 
G.  Parole Ineligibility:  Statutory Provisions
The following statutes mandate parole disqualifiers for certain drug offenses. Parole ineligibility applies to terms of imprisonment, not to special probation. 
Note: All of the following statutes, except the No Early Release Act (N.J.S.A. 2C:43-7.2), are subject to the N.J.S.A. 2C:35-12 waiver provisions discussed in section J of this chapter. 
1. Leader of a Narcotics Trafficking Network. N.J.S.A. 2C:35- 3 requires the court to impose a life sentence with a twenty- five-year period of parole ineligibility. 
2. Maintaining or Operating a Controlled Dangerous Substance Production Facility. N.J.S.A. 2C:35-4 requires a period of parole ineligibility between one-third and one-half of the sentence imposed. 
3. First Degree Manufacturing, Distributing or Dispensing Certain Controlled Dangerous Substances. N.J.S.A. 2C:35-5(b)(1) and (6) require a period of parole ineligibility between one- third and one-half of the sentence imposed. 
4. Employing a Juvenile in a Drug Distribution Scheme. 
N.J.S.A. 2C:35-6 mandates a period of parole ineligibility at or between one-third and one-half of the sentence imposed, or five years, whichever is greater. 
5. Manufacturing, Distributing or Dispensing a Controlled Dangerous Substance on or Near School Property. N.J.S.A. 2C:35- 7(a) provides that if the offense involved less than one ounce of marijuana, the period of parole ineligibility must be between one-third and one-half of the sentence imposed, or one year, whichever is greater, and in all other cases the period of parole ineligibility must be at or between one-third and one- half of the sentence imposed, or three years, whichever is greater. 
200 
(a) Waiver of the Minimum Term Permitted. N.J.S.A. 2C:35- 7(b)(1) allows the court to waive the mandatory minimum term after considering the defendant's prior record, seriousness of the offense, location of the offense in relation to the school and children, and whether school was in session when the defendant committed the offense. N.J.S.A. 2C:35-7(b)(2), however, does not permit waiver if the defendant used or threatened violence, possessed a firearm, or committed the offense on a school bus or property owned by an elementary or secondary school, or by a school board. 
(b) State Appeal. If the court does not impose a minimum term, the sentence shall not be final for ten days to allow the State time to appeal the sentence. N.J.S.A. 2C:35- 7(b)(2)(b). "The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding whether to appeal" a sentence imposed pursuant to N.J.S.A. 2C:35-7(b)(1). 
6. Drug Distribution to a Minor or a Pregnant Female. 
N.J.S.A. 2C:35-8 requires the court to impose "twice the term of parole ineligibility, if any, authorized or required to be imposed by" N.J.S.A. 2C:35-5(b) (drug distribution) or N.J.S.A. 2C:35-7 (distribution within a school zone) "or any other provision of this title," upon application of the prosecutor. If the defendant is convicted of more than one offense, the court must impose one enhanced sentence on the most serious offense. Ibid. The prosecutor must establish the basis for the enhanced sentence by a preponderance of the evidence, and the court must hold a hearing on the matter. Ibid. 
7. The No Early Release Act. N.J.S.A. 2C:43-7.2 requires the court to fix "a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole," and impose a five-year term of parole supervision (first degree crime), or a three-year term of parole supervision (second degree crime) for the following first and second degree drug crimes: 
· Booby traps in manufacturing or distributing a controlled dangerous substance (N.J.S.A. 2C:35- 4.1(b)); and 
· Drug induced deaths (N.J.S.A. 2C:35-9). 201 
H. Extended Terms: Statutory Provisions 
The following offenses mandate extended terms for certain drug offenses. Extended terms are inapplicable to special probation, which may not exceed five years. N.J.S.A. 2C:35-14(a). 
Note: The following statutes are subject to the N.J.S.A. 2C:35- 12 waiver provisions discussed in section J of this chapter. 
1. Drug Distribution to a Minor or a Pregnant Female. 
N.J.S.A. 2C:35-8 requires the court to impose, upon application of the prosecutor, "twice the term of imprisonment, fine and penalty, including twice the term of parole ineligibility, if any, authorized or required to be imposed by" N.J.S.A. 2C:35- 5(b) (drug distribution) or N.J.S.A. 2C:35-7 (distribution within a school zone) "or any other provision of this title." If the defendant is convicted of more than one offense, the court shall impose one enhanced sentence on the most serious offense. Ibid. The prosecutor must establish the basis for the enhanced sentence by a preponderance of the evidence, and the court must hold a hearing on the matter. Ibid. 
2. Repeat Drug Offender. N.J.S.A. 2C:43-6(f) provides that upon application of the prosecutor, the court must impose an extended term with a parole disqualifier against anyone convicted of the following crimes if the defendant also has a prior conviction of "manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog": 
  • ·  Manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog (N.J.S.A. 2C:35-5); 

  • ·  Maintaining or operating a controlled dangerous substance production facility (N.J.S.A. 2C:35-4); 

  • ·  Employing a juvenile in a drug distribution scheme (N.J.S.A. 2C:35-6); 

  • ·  Being a leader of a narcotics trafficking network (N.J.S.A. 2C:35-3); or 

202 
· Distributing, dispensing or possessing with intent to distribute within a school zone (N.J.S.A. 2C:35-7). 
(a) Parole Disqualifier. Pursuant to N.J.S.A. 2C:35-6(f), the parole disqualifier "shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S.A. 2C:35-6 [employing a juvenile in drug distribution], or 18 months in the case of a fourth degree crime." 
(b) Hearing. The prosecutor must establish the ground for imposing sentence pursuant to N.J.S.A. 2C:35-6(f) at a hearing, which may occur at the time of sentencing. N.J.S.A. 2C:35-6(f). 
(c) Separation of Powers. As written, N.J.S.A. 2C:43-6(f) violates the doctrine of separation of powers by giving unfettered power to prosecutors in the sentencing determination. State v. Lagares, 127 N.J. 20, 31 (1992). Hence, our Court has interpreted the statute as requiring guidelines to assist prosecutorial decision-making, while reflecting the legislative intent that extended sentences for repeat drug offenders should not be the exception. State v. Lagares, 127 N.J. 20, 32 (1992). 
(d) Guidelines. For the guidelines effective May 20, 1998, see Attorney General Directive 1998-1, incorporating by reference Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12. They are found at www.nj.gov/oag/dcj (click on "Directives/Guidelines," then "Directives"). For a discussion of the statewide guidelines issued in response to Lagares, see State v. Kirk, 145 N.J. 159, 168-69 (1996). 
Effective for offenses committed on or after September 15, 2004, the Attorney General promulgated revised guidelines. They are found at www.nj.gov/oag/dcj (click on "Directives/Guidelines," then "Guidelines," then "Brimage Guidelines 2"). 
I. Consecutive Terms: Statutory Provisions 
The following statutes mandate consecutive prison terms for certain drug offenses. 
203 
1. Booby Traps in the Manufacturing or Distribution of Drugs. 
N.J.S.A. 2C:35-4.1(e) requires the sentence be served consecutively to the sentence for a conviction of any offense in Chapter 35, or a conspiracy or attempt to commit an offense under Chapter 35, "unless the court, in consideration of the character and circumstances of the defendant, finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others. If the court does not impose a consecutive sentence, the sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution." 
2. Possession of a Weapon During a Drug or Bias Crime. 
N.J.S.A. 2C:39-4.1(d) requires the sentence run consecutively to the sentence for any of the following offenses: 
  • ·  Leader of a narcotics trafficking network (N.J.S.A. 2C:35-3); 

  • ·  Maintaining or operating a drug production facility (N.J.S.A. 2C:35-4); 

  • ·  Manufacturing or distributing drugs (N.J.S.A. 2C:35-5); 

  • ·  Manufacturing and dispensing Gamma Hydroxybutyrate 
           (N.J.S.A. 2C:35-5.2);


  • ·  Manufacturing and dispensing Flunitrazepam (N.J.S.A. 2C:35-5.3); 

  • ·  Employing a juvenile in a drug distribution scheme (N.J.S.A. 2C:35-6); 

  • ·  Possession of drugs on or near school property (N.J.S.A. 2C:35-7); 

  • ·  Distribution or possession of drugs on public property (N.J.S.A. 2C:35-7.1); 

  • ·  Possession, distribution or manufacturing imitation drugs (N.J.S.A. 2C:35-11); and 

  • ·  Bias intimidation (N.J.S.A. 2C:16-1). 204 

J. N.J.S.A. 2C:35-12 Waiver of Drug Offender Sentencing Enhancements: Statutory Provisions 
The N.J.S.A. 2C:35-12 waiver provisions apply to certain mandatory parole disqualifiers, extended terms and drug offense penalties. 
1. Statutory Authority. N.J.S.A. 2C:35-12 provides that when an offense in Chapter 35 of Title 2C (drug offenses) imposes a mandatory term of parole ineligibility, a mandatory extended term that includes a period of parole ineligibility, or an anti- drug profiteering penalty pursuant to Chapter 35A of Title 2C, the court "shall impose the mandatory sentence or anti-drug profiteering penalty unless the defendant has pleaded guilty pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement, which provides for a lesser sentence, period of parole ineligibility or anti-drug profiteering penalty" (emphasis added). The agreement "may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, a specified anti-drug profiteering penalty, or other disposition." Ibid. The court may not impose a lesser sentence than the one agreed to by the State and the defendant. Ibid. 
2. Constitutionality of N.J.S.A. 2C:35-12 and the Brimage Guidelines. To effectuate judicial review and avoid arbitrary and capricious decisions, the prosecutor must make N.J.S.A. 2C:35-12 decisions based on written standards. State v. Vasquez, 129 N.J. 189, 195-96 (1992). The Brimage guidelines contain a "Table of Authorized Plea Offers," which "sets forth presumptive plea offers based on a defendant's offense, his prior criminal history, and the timing of the plea offer." State v. Fowlkes, 169 N.J. 387, 394 (2001). 
The Brimage guidelines in effect as of September 15, 2004 are available online at www.nj.gov/oag/dcj. Click on "Directives/Guidelines," then "Guidelines," then "Brimage Guidelines 2." 
For the Brimage guidelines in effect prior to September 15, 2004, click on "Directives/Guidelines," then "Directives." 
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K. Drug Offender Sentencing Enhancements: Case Law 1. Drug Offense Penalties. 
(a) Conspiracy. "[T]he mere conviction under N.J.S.A. 2C:5-2 for the 'ordinary' crime of conspiracy, does not render a person subject to the mandatory penalties of the Comprehensive Drug Reform Act, even if the object of that conspiracy constitutes a Chapter 35 offense." State in the Interest of W.M., 237 N.J. Super. 111, 118 (App. Div. 1989). 
(b) Accomplices. A defendant convicted of a drug offense as an accomplice is subject to the mandatory drug offense penalties. State v. Bram, 246 N.J. Super. 200, 208 (Law Div. 1990). 
2. Drug Offender Restraining Orders. Where the court denies a N.J.S.A. 2C:35-5.7(h) request to impose a drug offender restraining order, N.J.S.A. 2C:35-5.7(k) imposes a ten-day limitation period on the State's right to appeal. State v. Fitzpatrick, 443 N.J. Super. 316, 320 (App. Div. 2015). 
3.   Drug Offense License Suspension.
(a) Multiple Offenses. Where a court imposes sentence for multiple drug offenses subject to the mandatory forfeitures of one's driver's license, pursuant to N.J.S.A. 2C:35-16, the license suspension terms must run concurrently. State in the Interest of T.B., 134 N.J. 382, 387 (1993). 
(b) Timing. License suspension under N.J.S.A. 2C:35-16(a) begins on the day of sentencing; the court has no discretion to postpone or delay it. State v. Hudson, 286 N.J. Super. 149, 154-55 (App. Div. 1995). In the case of a juvenile, license suspension begins the day after the defendant's seventeenth birthday. State in the Interest of T.B., 134 N.J. 382, 388 (1993); State in the Interest of J.R., 244 N.J. Super. 630, 641 (App. Div. 1990). If the defendant's license is under suspension at the time of sentencing, then the new license suspension will begin on the final day of the current suspension. State in the Interest of T.B., 134 N.J. 382, 388 (1993). 
206 
(c) License Forfeiture Exception. In determining whether compelling circumstance exist to justify not revoking a defendant's driving privileges under N.J.S.A. 2C:35-16(a), the court should consider whether revocation will result in the defendant's loss of employment or extreme hardship. State v. Bendix, 396 N.J. Super. 91, 95-96 (App. Div. 2007). Where a defendant "has occasioned the loss of his employment through his unauthorized and criminal use of his employer's vehicle," the court should find no compelling circumstances to justify not revoking the defendant's license. State v. Carrero, 399 N.J. Super. 419, 425-26 (Law Div. 2007). 
4.   The Drug Enforcement and Demand Reduction (DEDR) Penalty.
(a) Policy. "As its name suggests, the penalty is designed to reduce the demand for drugs by providing a source for helping convicted defendants to reduce their demand for illegal substances." State v. Monzon, 300 N.J. Super. 173, 177 (App. Div. 1997). 
(b) Treatment Program in Lieu of Payment and Wages. In reducing a penalty pursuant to N.J.S.A. 2C:35-15(e) by the amount actually paid for participation in a treatment program, the court should consider the amount withheld from a defendant's pay for work completed at the treatment program. State v. Monzon, 300 N.J. Super. 173, 177-78 (App. Div. 1997). 
(c) Constitutionality. The drug enforcement and demand reduction penalty does not constitute cruel and unusual punishment under the Federal or State Constitution, and does not violate the equal protection clauses, substantive or procedural due process rights, or the State constitutional prohibition against amendment by reference. State v. Lagares, 127 N.J. 20, 36-37 (1992); State in the Interest of L.M., 229 N.J. Super. 88, 94-102 (App. Div. 1988), certif. denied, 114 N.J. 485 (1989). 
(d) Merger and Conspiracy. "Since the principle of merger involves the avoidance of double penalties for the same crime, Chapter 35 DEDR penalties may not be imposed on a conviction for both conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2, and for the actual possession under N.J.S.A. 2C:35-10." State in the Interest of M.A., 227 N.J. Super. 393, 395 (Ch. Div. 1988). 
207 
(e) Pretrial Intervention Program. The court may impose a drug enforcement and demand reduction penalty as a condition of entry into a pretrial intervention program. State v. Bulu, 234 N.J. Super. 331, 342, 346-48 (App. Div. 1989). 
(f) The DEDR Penalty Is Mandatory. The DEDR penalty is mandatory and must be set in accordance with the degree of crime of which the defendant was convicted. State v. Malia, 287 N.J. Super. 198, 208 (App. Div. 1996); State v. Williams, 225 N.J. Super. 462, 464 (Law Div. 1988). The court may not revoke the penalty after sentencing. State v. Gardner, 252 N.J. Super. 462, 465-66 (Law Div. 1991). 
  1. 5.    Drug Offender Fines.

  2. (a) Drug-Buy Money. The court may consider money the defendant received in selling drugs when determining the defendant's ability to pay a fine. State v. Newman, 132 N.J. 159, 177-79 (1993). 
    (b) Order of Payment. A defendant convicted of a drug offense must pay the Victims of Crime Compensation Board assessment (N.J.S.A. 2C:43-3.1), laboratory fee (N.J.S.A. 2C:35-20), and the drug enforcement and demand reduction penalty (N.J.S.A. 2C:35-15) before paying a fine. State v. Newman, 132 N.J. 159, 178 (1993). 

  3. Merger
    (a) Drug Distribution and Distribution in a School Zone.
    While N.J.S.A. 2C:35-7(c) precludes merger of distribution- within-a-school-zone with a N.J.S.A. 2C:35-5 distribution conviction, subjecting a defendant to punishment under both statutes would violate principles of double jeopardy because N.J.S.A. 2C:35-5 does not require proof of any additional element. State v. Dillihay, 127 N.J. 42, 45, 51 (1992); State v. Brana, 127 N.J. 64, 67 (1992). To comply 

with double jeopardy principles, a N.J.S.A. 2C:35-7 conviction must merge with a N.J.S.A. 2C:35-5 distribution conviction, but the N.J.S.A. 2C:35-7 period of parole ineligibility survives the merger. State v. Dillihay, 127 N.J. 42, 54 (1992); State v. Brana, 127 N.J. 64, 67 (1992). 
208 
(b) Drug Distribution and Distribution on Public Property. 
The same rationale applies to the anti-merger provision of N.J.S.A. 2C:35-7.1(c) (precluding merger of a conviction for distributing within 500 feet of a public housing facility, public park, or public building with a conviction under N.J.S.A. 2C:35-5 (drug distribution), or N.J.S.A. 2C:35-6 (employing a juvenile to distribute drugs)). State v. Gregory, 336 N.J. Super. 601, 607 (App. Div. 2001) (merging a third degree conviction under N.J.S.A. 2C:35-5 into a second degree conviction under N.J.S.A. 2C:35-7.1); State v. Parker, 335 N.J. Super. 415, 420 (App. Div. 2000) (holding that a "third degree conviction under N.J.S.A. 2C:35-7 should have merged into" the defendant's N.J.S.A. 2C:35-7.1 second degree conviction, with the mandatory minimum term's surviving merger). 
(c) Drug Induced Death and Drug Distribution. Although the anti-merger provision of N.J.S.A. 2C:35-9(d) (drug induced death) explicitly prohibits merger into a conviction under N.J.S.A. 2C:35-5(a) (drug distribution), a Section 5 offense will merge into a Section 9 offense if the crimes arise out of the same transaction. State v. Maldonado, 137 N.J. 536, 583 (1994). 
(d) Constitutional Rights and Merger of Use of Booby Traps During Drug Distribution or Manufacturing. N.J.S.A. 2C:35- 4.1(e) (precluding merger of a conviction for using booby traps in connection with drug manufacturing or distribution with a drug offense) does not violate a defendant's right to due process or to protection against double jeopardy under either the federal or State Constitution. State v. Walker, 385 N.J. Super. 388, 408-11 (App. Div.), certif. denied, 187 N.J. 83 (2006). 
7. Constitutionality of the Enhanced Ordinary Term for Leader of a Drug Trafficking Network. The requirement that a leader of a narcotics trafficking network serve an ordinary term of life imprisonment with twenty-five years of parole ineligibility (N.J.S.A. 2C:35-3) does not constitute cruel and unusual punishment. State v. Kadonsky, 288 N.J. Super. 41, 45 (App. Div.), certif. denied, 144 N.J. 589 (1996). 
8. Parole Ineligibility.
(a) Transfer to a Drug Treatment Program. 
A defendant 
serving a term that includes a period of parole 209 
ineligibility pursuant to N.J.S.A. 2C:35-7 (drug distribution within a school zone) may not obtain transfer to a drug treatment program until he or she completes the mandatory parole ineligibility period. State v. Diggs, 333 N.J. Super. 7, 10-11 (App. Div.), certif. denied, 165 N.J. 678 (2000). Similarly, a defendant cannot obtain a transfer to a drug treatment program until any Graves Act mandatory term has been served. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). 
(b) Day Care Facility Not "School" Under Statute on Drug Distribution Within a School Zone. "The plain legislative intent [of N.J.S.A. 2C:35-7] to exclude day care providers, nursery schools, and preschool programs suggests that the statute was not meant to apply to a facility such as the Goddard School, a licensed day care provider," even though the Goddard School teaches a kindergarten class. State v. Shelley, 205 N.J. 320, 328-30 (2011). 
(c) Indeterminate Terms in Young Adult Offender Drug Cases. A defendant subject to the mandatory parole ineligibility provisions of N.J.S.A. 2C:35-5(b)(1) (drug distribution) and N.J.S.A. 2C:35-7 (distribution within a school zone) may not be sentenced to an indeterminate term as a young adult offender pursuant to N.J.S.A. 2C:43-5. State v. Luna, 278 N.J. Super. 433, 437-38 (App. Div. 1995). 
9. Repeat Drug Offender Extended Term With Parole Ineligibility. 
(a) Arbitrary and Capricious Challenge. Prosecutors must state on the record their reasons for seeking an extended term with a parole disqualifier pursuant to N.J.S.A. 2C:43- 6(f), and the court may deny the request where a defendant clearly and convincingly establishes that the prosecutor's decision was arbitrary and capricious. State v. Lagares, 127 N.J. 20, 32-33 (1992). 
(b) Sixth Amendment. The requirement that the court make findings on which to base a mandatory extended term with parole disqualifier falls within the "prior conviction" exception of Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004), and thus does not offend the Sixth Amendment requirement that a jury 
210 
make such findings. State v. Thomas, 188 N.J. 137, 149-52 (2006). 
(c) Chronology of Offenses and Convictions. The chronological sequence of the offenses and convictions is irrelevant for purposes of N.J.S.A. 2C:43-6(f). State v. Hill, 327 N.J. Super. 33, 41-42 (App. Div. 1999), certif. denied, 164 N.J. 188 (2000). The only requirement is that there be a previous conviction "at any time." Ibid. But where a defendant enters guilty pleas to two different charges on the same day, in the same proceeding, pursuant to one agreement, then N.J.S.A. 43-6(f) will not be applicable. State v. Owens, 381 N.J. Super. 503, 512-13 (App. Div. 2005). 
(d) The Dunbar Factors. The factors set forth in State v. Dunbar, 108 N.J. 80 (1987), as modified in State v. Jefimowicz, 119 N.J. 152 (1990), for setting an extended term apply when imposing a mandatory extended term with parole ineligibility under N.J.S.A. 2C:43-6(f). State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005); State v. Williams, 310 N.J. Super. 92, 98-99 (App. Div.), certif. denied, 156 N.J. 426 (1998). 
10. Museum as Public Property for Drug Distribution. A museum qualifies as a public building under N.J.S.A. 2C:35-7.1 (prohibiting drug distribution on public property), even if it does not have regular and consistent hours and is open to the public only upon request. State v. Chambers, 396 N.J. Super. 259, 263-66 (App. Div. 2007), certif. denied, 193 N.J. 586 (2008). 
11. The N.J.S.A. 2C:35-12 Provision Allowing Waiver of Certain Drug Offender Sentencing Enhancements. 
(a) Constitutionality of the N.J.S.A. 2C:35-12 Waiver Provision. Although N.J.S.A. 2C:35-12 vests sentencing discretion in the prosecutor, the statute does not violate separation of powers principles. State v. Vasquez, 129 N.J. 189, 195-97 (1992). To allow judicial oversight and to protect against arbitrary and capricious decisions, "the prosecutor should state on the record the reasons for the decision to waive or the refusal to waive the parole disqualifier" or extended term. Id. at 196. Accord State v. Murray, 338 N.J. Super. 80, 90 (App. Div.), certif. denied, 169 N.J. 608 (2001); State v. Powell, 294 N.J. 
211 
Super. 557, 568 (App. Div. 1996); State v. Leslie, 269 N.J. Super. 78, 83 (App. Div. 1993), certif. denied, 136 N.J. 29 (1994). 
(b) Imposing Sentence After a N.J.S.A. 2C:35-12 Waiver. 
If the court accepts a plea agreement pursuant to N.J.S.A. 2C:35-12, the court must impose the negotiated sentence. State v. Thomas, 392 N.J. Super. 169, 180 (App. Div.), certif. denied, 192 N.J. 597 (2007); State v. Lebra, 357 N.J. Super. 500, 512 (App. Div. 2003). The court "has no discretion to lower the custodial part of a section 12 plea agreement." State v. Thomas, 392 N.J. Super. 169, 180 (App. Div.), certif. denied, 192 N.J. 597 (2007) (discussing the holding in State v. Bridges, 131 N.J. 402, 408-09 (1993)). If the court is inclined to impose a lesser sentence, then it must reject the plea. State v. Thomas, 392 N.J. Super. 169, 180 (App. Div.), certif. denied, 192 N.J. 597 (2007). Note that if the plea agreement does not provide for a lesser sentence than one mandated by the drug laws, N.J.S.A. 2C:35-12 does not apply, and the court is free to impose a lesser prison term or period of parole ineligibility than that contemplated by the plea agreement. State v. Thomas, 253 N.J. Super. 368, 374-75 (App. Div. 1992). 
(c) Illegal Sentence and N.J.S.A. 2C:35-12. "The parties cannot negotiate an illegal sentence, and N.J.S.A. 2C:35-12 does not suggest otherwise in providing that a negotiated sentence must be imposed in lieu of the otherwise mandatory sentence." State v. Smith, 372 N.J. Super. 539, 542 (App. Div. 2004), certif. denied, 182 N.J. 428 (2005). See also State v. Thomas, 392 N.J. Super. 169, 183 (App. Div.) (explaining that an agreement to forego filing a motion to suppress does not render a sentence illegal), certif. denied, 192 N.J. 597 (2007). 
(d) Defendant's Absence From Sentencing as Part of a Plea Agreement. A plea agreement may be valid and enforceable even though it allows a court to increase a defendant's sentence in the event he or she fails to appear for sentencing. State v. Shaw, 131 N.J. 1, 15 (1993) (allowing the State to condition waiver of a minimum term in a drug case on the defendant's appearance at sentencing). But see State v. Wilson, 206 N.J. Super. 182, 184 (App. Div. 1985) (extended sentence based entirely upon nonappearance is 
212 
illegal because it is unrelated to any of the sentencing criteria set forth in the Code). 
If the defendant violates a N.J.S.A. 2C:35-12 agreement that contained a promise to appear at sentencing, the judge should not automatically void the waiver agreement, but rather, should determine whether the failure to appear was "material to the plea agreement and warrants revocation of the waiver." State v. Diggs, 333 N.J. Super. 7, 11 (App. Div. 2000) (discussing State v. Shaw, 131 N.J. 1, 17 (1993)). See also State v. Rolex, 329 N.J. Super. 220, 226 (App. Div. 2000), aff'd o.b., 167 N.J. 447 (2001). 
(e) N.J.S.A. 2C:35-12 Waiver Survives a Probation Violation. Where the court imposed a term of probation after the State waived a minimum term pursuant to N.J.S.A. 2C:35-12, and the defendant violated probation, the waiver will survive the probation violation. State v. Vasquez, 129 N.J. 189, 201-02 (1992). A prosecutor cannot overcome this rule by including in the plea agreement a term that if the defendant violates probation, the sentence will include a period of parole ineligibility. Id. at 208. However, the sentence for the probation violation may exceed the sentence initially imposed pursuant to the plea agreement. State v. Ervin, 241 N.J. Super. 458, 469 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990). 
12.  The Brimage Guidelines.
(a) Sixth Amendment and the Brimage Guidelines. The Brimage guidelines do not violate the Sixth Amendment principles established in Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004), because the guidelines do not result in a sentence above the statutory maximum and because a defendant who negotiates a sentence waives the right to have a jury find the facts necessary to support the sentence. State v. Thomas, 392 N.J. Super. 169, 186-87 (App. Div.), certif. denied, 192 N.J. 597 (2007). 
(b) Motion to Suppress and Increased Punishment. The guidelines do not impermissibly burden a defendant's right to file a motion to suppress even though they provide for increased punishment if the defendant pleads guilty after filing a motion to suppress. State v. Thomas, 392 N.J. 
213 
Super. 169, 179 (App. Div.), certif. denied, 192 N.J. 597 (2007). 
(c) Post-Conviction Agreements and Plea Offers. The Brimage guidelines apply to post-conviction sentencing agreements in addition to plea offers. State v. Castaing, 321 N.J. Super. 292, 296 (App. Div. 1999). 
(d) Objections on the Record. To provide an adequate record for review, a defendant should raise objections at the trial level. State v. Coulter, 326 N.J. Super. 584,
589 (App. Div. 1999). "Where a defendant objects to a prosecutor's assignment of certain aggravating factors to the plea offer, or the prosecutor's failure to credit a defendant with a mitigating factor," the court should hold a "non-plenary type hearing" where the prosecutor must "show that the decision being challenged was made on a 'good faith basis' and 'based upon the information available to the prosecutor and reasonable inferences that can be drawn from such information.'" Ibid. (quoting State v. Brimage, 153 N.J. 1, 5 (1998)). 
(e) State's Mistake Regarding the Brimage Guidelines. 
"[I]f a judge is satisfied that the State has made an honest mistake in determining the terms of a plea offer" pursuant to the Brimage Guidelines, the State should be allowed to withdraw the offer before the date of sentence. State v. Veney, 327 N.J. Super. 458, 461 (App. Div. 2000). 
(f) Standard of Review. The Brimage guidelines anticipate review under the "gross and patent abuse of prosecutorial discretion" standard. State v. Coulter, 326 N.J. Super. 584, 588-89 (App. Div. 1999). If the prosecutor failed to consider the guidelines in negotiating a plea, the defendant is entitled to a remand. State v. Hammer, 346 N.J. Super. 359, 371-72 (App. Div. 2001). 
13.  Cruel and Unusual Punishment.
(a) Drug Crimes Penalties. The mandatory drug enforcement and demand reduction (DEDR) penalties of the Comprehensive Drug Reform Act do not constitute cruel and unusual punishment. State v. Lagares, 127 N.J. 20, 36-37 (1992). 
214 
(b) Leader of a Drug Trafficking Network Life Imprisonment. The requirement that a leader of a narcotics trafficking network serve an ordinary term of life imprisonment with twenty-five years of parole ineligibility (N.J.S.A. 2C:35-3) does not constitute cruel and unusual punishment even when the drug involved is marijuana, as opposed to heroin or cocaine. State v. Kadonsky, 288 N.J. Super. 41, 45 (App. Div.), certif. denied, 144 N.J. 589 (1996). 
(c) Drug Induced Death, Strict Liability. The statute imposing strict liability for a drug induced death (N.J.S.A. 2C:35-9) does not violate the Federal or State constitutional prohibitions against cruel and unusual punishment. State v. Maldonado, 137 N.J. 536, 556-60 (1994). 
215 
          XV.  SEX OFFENDER SENTENCING
This chapter discusses the Title 2C provisions that provide for or require enhanced sentencing for sex crimes and offenses that often accompany sex crimes (see Sections A, B, and E through I). In some cases, the court may not impose a sentence of probation and must impose parole supervision for life (see sections C and D). Depending on the nature of the defendant's conduct and ability to be rehabilitated, the court may require the defendant to receive inpatient or outpatient sex offender treatment (see section J). Following completion of the sentence, the defendant will be subject to reporting requirements and may be civilly committed for treatment (see Section I). Section K discusses case law on sex offender sentencing. 
A. Merger of Certain Offenses Prohibited: Statutory Provisions 
1. Luring or Enticing a Child. N.J.S.A. 2C:13-6(f) precludes merger "with any other criminal offense." 
2. Luring or Enticing an Adult. N.J.S.A. 2C:13-7(f) precludes merger "with any other criminal offense." 
3. Third Degree Recording and Third Degree Disclosing Images of Sexual Contact. N.J.S.A. 2C:14-9(h) precludes one offense from merger into the other. 
B. Enhanced Ordinary Terms of Imprisonment for Certain Offenses: Statutory Provisions 
The ordinary terms of imprisonment for the following offenses exceed the generally applicable ordinary terms set forth in N.J.S.A. 2C:43-6(a) (i.e., ten to twenty years for a first degree crime, five to ten years for a second degree crime, three to five years for a third degree crime, and a period not to exceed eighteen months for a fourth degree crime). 
1. Kidnapping in the First Degree:
(a) Victim Is Sixteen Years of Age or Older
: between 
     fifteen and thirty years.  N.J.S.A. 2C:13-1(c)(1).
                               216
(b) Victim Is Less Than Sixteen Years Old: twenty-five years without parole eligibility, or a term between twenty- five years and life imprisonment with a parole ineligibility period of twenty-five years, if: (a) the defendant subjected the victim to a sexual assault (N.J.S.A. 2C:14-2), a criminal sexual contact (N.J.S.A. 2C:14-3), or endangerment (N.J.S.A. 2C:24-4) or (b) the defendant sold or delivered the victim for pecuniary gain, and the sale did not lead to the victim's return to a parent or guardian. N.J.S.A. 2C:13-1(c)(2). 
2. Human Trafficking: twenty years without parole eligibility, or a prison term between twenty years and life with a parole ineligibility period of twenty years. N.J.S.A. 2C:13- 8(d). 
C. Restrictions on Noncustodial Terms: Statutory Provisions 
1. Probation Prohibited. N.J.S.A. 2C:43-2(g) instructs that the court may not sentence a defendant to probation for any of the following offenses, which require a special sentence of parole supervision for life: 
  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Sexual assault (N.J.S.A. 2C:14-2(b) or (c)); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1(c)(2)); 

  • ·  Endangering the welfare of a child by engaging in sexual conduct that impairs or debauches the morals of the child (N.J.S.A. 2C:24-4(a)); 

  • ·  Endangering the welfare of a child by way of child pornography (N.J.S.A. 2C:24-4(b)(3)); 

  • ·  Luring (N.J.S.A. 2C:13-6); and 

  • ·  A violation of a special sentence of community 
           supervision for life (N.J.S.A. 2C:43-6.4(d)).
  •                               217


2. Offenses That Preclude Suspension of Sentence and Noncustodial Terms. 
(a) Luring or Enticing a Child (Repeat Offender). 
N.J.S.A. 2C:13-6(d) prohibits the court from suspending a sentence and from imposing a noncustodial term against anyone convicted of a second or subsequent offense of luring or enticing a child. 
(b) Luring an Adult. N.J.S.A. 2C:13-7(f) prohibits the court from suspending a sentence and from imposing a noncustodial term for luring an adult. 
(c) Sexual Assault or Criminal Sexual Contact. N.J.S.A. 2C:14-6 prohibits the court from suspending a sentence and imposing a noncustodial term if the defendant has a prior conviction for sexual assault or criminal sexual contact. 
(d) Possession of 100 or More Items Depicting the Sexual Exploitation or Abuse of a Child. N.J.S.A. 2C:24- 4(b)(5)(b) requires the court impose a term of imprisonment if the defendant possessed 100 or more items depicting the sexual exploitation or abuse of a child " unless, having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others." 
D.  Parole Supervision for Life:  Statutory Provisions
1. Statutory Authority for Mandatory Parole Supervision for Life. N.J.S.A. 2C:43-6.4(a) requires the court impose a sentence of parole supervision for life, in addition to any other sentence authorized by Title 2C, for the following offenses, or an attempt to commit any of the following offenses: 
· Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 
· Sexual assault (N.J.S.A. 2C:14-2(b) or (c)); 
· Aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)); 
· Kidnapping (N.J.S.A. 2C:13-1(c)(2)); 218 
  • ·  Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child (N.J.S.A. 2C:24-4(a)); 

  • ·  Endangering the welfare of a child by way of child pornography (N.J.S.A. 2C:24-4(b)(3)); 

  • ·  Luring (N.J.S.A. 2C:13-6); and 

  • ·  A violation of a condition of a special sentence of community supervision for life pursuant to N.J.S.A. 2C:43-6.4(d). 
    Note: Prior to 2003, N.J.S.A. 2C:43-6.4 spoke only of community supervision for life. In passing L. 2003, c. 267, § 1, the Legislature amended N.J.S.A. 2C:43-6.4 to replace community supervision for life with the harsher sentence of parole supervision for life. For a discussion of the ways in which the two special sentences differ see State v. Perez, 220 N.J. 423, 436-42 (2015). 

2. Parole Supervision for Life Upon Motion by the Prosecutor. 
If the defendant is convicted of second degree child pornography (N.J.S.A. 2C:24-4(b)(4) or (5)), or an attempt to commit the offense, the court shall impose a sentence of parole supervision for life if the prosecutor so requests, unless the court finds that the sentence "is not needed to protect the community or deter the defendant." N.J.S.A. 2C:43-6.4(a). 
3. Conditions of Parole Supervision for Life. Both the parole board and the court may impose conditions of parole that are "appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). Conditions may include restrictions on internet access, as stated in N.J.S.A. 2C:43-6.4(f). 
4. Timing of Parole Supervision for Life. Parole supervision for life commences immediately upon the defendant's release from incarceration for any offense. N.J.S.A. 2C:43-6.4(b). 
5. Suspended Sentence and Parole Supervision for Life. If the court suspends the imposition of sentence on a defendant who is convicted of any offense subject to parole supervision for life, the parole supervision for life will begin immediately. N.J.S.A. 2C:43-6.4(b). 
219 
6. Custody of the Defendant While Serving Parole Supervision for Life. Defendants serving the special sentence of parole supervision for life remain in the legal custody of the Commissioner of Corrections. N.J.S.A. 2C:43-6.4(b). They are supervised by the Division of Parole, subject to the provisions and conditions set forth in the statutes governing parole, and "subject to conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). 
7. Request to Terminate Parole Supervision for Life. The court may grant a release from parole supervision for life upon proof by clear and convincing evidence that the defendant has not committed a crime in fifteen years since the last conviction or release from incarceration, whichever is later, and that the defendant does not pose a threat to others. N.J.S.A. 2C:43- 6.4(c). 
8. Violation of Parole Supervision for Life (Third Degree Crime). A violation of parole supervision for life without good cause is a third degree offense. N.J.S.A. 2C:43-6.4(d). The person shall be sentenced to a term of imprisonment "unless the court is clearly convinced that the interests of justice so far outweigh the need to deter this conduct and the interest in public safety that a sentence to imprisonment would be a manifest injustice." Ibid. 
9. Violation of Parole Supervision for Life (Extended Term Without Parole). N.J.S.A. 2C:43-6.4(e) provides that if the defendant committed any of the following offenses while serving parole supervision for life, the court must impose an extended term pursuant to N.J.S.A. 2C:43-7, and the defendant must serve the entire term before returning to parole supervision for life: 
· Murder (N.J.S.A. 2C:11-3);
· Manslaughter (N.J.S.A. 2C:11-4);
· Death by auto or vessel (N.J.S.A. 2C:11-5); · Aggravated assault (N.J.S.A. 2C:12-1(b));
· Kidnapping (N.J.S.A. 2C:13-1);
· Luring a child (N.J.S.A. 2C:13-6); 
220 
  • ·  Sexual assault (N.J.S.A. 2C:14-2); 

  • ·  Criminal sexual contact (N.J.S.A. 2C:14-3); 

  • ·  Endangering the welfare of a child (N.J.S.A. 2C:24-4); 

  • ·  Second degree burglary (N.J.S.A. 2C:18-2); or 

  • ·  Possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)). 
    E. Parole Ineligibility: Statutory Provisions 
    1. Kidnapping of a Minor. N.J.S.A. 2C:13-1(c)(2) requires the court to impose a term between twenty-five years and life imprisonment with a parole ineligibility period of twenty-five years when (a) the victim was less than sixteen years old and was subjected to a sexual assault (N.J.S.A. 2C:14-2), a criminal sexual contact (N.J.S.A. 2C:14-3), or endangerment (N.J.S.A. 2C:24-4); or (b) the defendant sold or delivered the victim for pecuniary gain, and the sale did not lead to the victim's return to a parent or guardian. The court must merge the underlying offenses into the kidnapping conviction. N.J.S.A. 2C:13- 1(c)(2). 
    2. Luring or Enticing a Child (Repeat Offenders). N.J.S.A. 2C:13-6(d) requires a parole disqualifier of one-third to one- half of the sentence imposed, or three years, whichever is greater for a second or subsequent offense of luring or enticing a child into a motor vehicle, structure or isolated area with the purpose to commit a criminal offense with or against the child. If the court imposes an extended term, the term of parole ineligibility must be one-third to one-half of the sentence imposed, or five years, whichever is greater. N.J.S.A. 2C:13-6(d). 
    3. Luring or Enticing a Child (Certain Persons). N.J.S.A. 2C:13-6(e) requires a five-year parole ineligibility term for the crime of luring or enticing a child (N.J.S.A. 2C:13-6) when the defendant has a prior conviction for a violation of N.J.S.A. 

2C:14-2 (sexual assault), N.J.S.A. 2C:14-3(a) (aggravated criminal sexual contact), or N.J.S.A. 2C:24-4 (endangering the welfare of a child). If the court imposes an extended term, 
221 
then the parole disqualifier provision is inapplicable. N.J.S.A. 2C:13-6(e). 
4. Luring or Enticing an Adult (Repeat Offenders). N.J.S.A. 2C:13-7(d) mandates a parole ineligibility period of one-third to one-half the sentence imposed, or one year, whichever is greater, for a second or subsequent offense of luring or enticing a person into a motor vehicle, structure or isolated area with the purpose to commit a criminal offense with or against the person or any other person. If the defendant is sentenced to an extended term, the period of parole ineligibility shall be one-third to one-half the sentence imposed, or five years, whichever is greater. N.J.S.A. 2C:13-7(d). 
5. Luring or Enticing an Adult (Certain Persons). N.J.S.A. 2C:13-7(e) requires a parole ineligibility period of three years for luring or enticing an adult if the defendant has a prior conviction for a violation of N.J.S.A. 2C:14-2 (sexual assault), N.J.S.A. 2C:14-3(a) (aggravated criminal sexual contact), or N.J.S.A. 2C:24-4 (endangering the welfare of a child). If the court imposes an extended term, then the parole ineligibility provision is inapplicable. N.J.S.A. 2C:13-7(e). 
6. Human Trafficking. N.J.S.A. 2C:13-8(d) mandates a twenty- year term of parole ineligibility. 
7. Assisting in Human Trafficking. N.J.S.A. 2C:13-9(c)(1) requires a period of parole ineligibility of one-third to one- half of the term of imprisonment, or three years, whichever is greater. 
8. Aggravated Sexual Assault of a Child. N.J.S.A. 2C:14- 2(a)(7) requires a twenty-five-year period of parole ineligibility be imposed on a defendant convicted of aggravated sexual assault of a child under age thirteen. However, N.J.S.A. 2C:14-2(d) allows the prosecutor to negotiate a fifteen-year sentence with no possibility of parole. N.J.S.A. 2C:14-2.1 provides that "the victim of the sexual assault shall be provided an opportunity to consult with the prosecuting authority prior to the conclusion of any plea negotiations." 
9. Sexual Assault or Aggravated Criminal Sexual Contact (Repeat Offender). N.J.S.A. 2C:14-6 requires the court impose on a second or subsequent offender of N.J.S.A. 2C:14-2 (sexual assault) or N.J.S.A. 2C:14-3(a) (aggravated criminal sexual 
222 
contact), a minimum period of parole ineligibility of at least five years on an ordinary sentence (i.e., a non-extended term sentence). 
10. Endangering the Welfare of a Child (Computer Related Sex Offense). N.J.S.A. 2C:24-4(b)(5)(a) requires a parole disqualifier of one-third to one-half of the sentence imposed, or five years, whichever is greater, for distributing, possessing, storing or maintaining by way of a file-share program, twenty-five or more items depicting the sexual exploitation or abuse of a child. 
11. The No Early Release Act. N.J.S.A. 2C:43-7.2 requires the court fix "a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole," and impose a five-year term of parole supervision (first degree crime), or a three-year term of parole supervision (second degree crime) for the following first and second degree sex crimes: 
  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Sexual assault (N.J.S.A. 2C:14-2(b) and (c)(1)); and 

  • ·  Endangering the welfare of a child by way of child pornography (N.J.S.A. 2C:24-4(b)(3)). 
    F. Mandatory Extended Terms: Statutory Provisions 

1. Second Degree Sexual Acts With a Child and Child Pornography. N.J.S.A. 2C:24-4(b)(5)(a) requires the court to impose an extended term on a person convicted of a second or subsequent offense of second degree (1) engaging in sexual acts with a child or the simulation of such acts knowing or intending that the act may be photographed, filmed or reproduced; or (2) filming, photographing or reproducing the image of a child in a sex act; or (3) distributing, possessing or sharing an item depicting the sexual exploitation or abuse of a child. 
2. Third Degree Sexual Acts With a Child and Pornography. N.J.S.A. 2C:24-4(b)(5)(b) provides that a convicted of a second or subsequent offense of third 
Child 
person
degree
223 
knowingly possessing, receiving, viewing or having under his or her control an item depicting the sexual exploitation or abuse of a child shall be sentenced to an extended term of imprisonment. 
3. Sex Offender Violation of Parole Supervision for Life. 
N.J.S.A. 2C:43-6.4(e) provides that if a defendant commits any of the following offenses while serving parole supervision for life the court must impose an extended term, and the defendant must serve the entire term before returning to parole supervision for life: 
  • ·  Murder (N.J.S.A. 2C:11-3); 

  • ·  Manslaughter (N.J.S.A. 2C:11-4); 

  • ·  Death by auto or vessel (N.J.S.A. 2C:11-5); 

  • ·  Aggravated assault (N.J.S.A. 2C:12-1(b)); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Luring a child (N.J.S.A. 2C:13-6); 

  • ·  Sexual assault (N.J.S.A. 2C:14-2); 

  • ·  Criminal sexual contact (N.J.S.A. 2C:14-3); 

  • ·  Endangering the welfare of a child (N.J.S.A. 2C:24-4); 

  • ·  Second degree burglary (N.J.S.A. 2C:18-2); or 

  • ·  Possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)). 

4. Persistent Violent Offenders (also known as the "Persistent Offenders Accountability Act" and the "Three Strikes and You're In" Law). N.J.S.A. 2C:43-7.1 requires the court to impose either a life sentence without parole or an extended term, depending on the crime committed and after a hearing. 
(a) Life Without Parole. N.J.S.A. 2C:43-7.1(a) provides that a person convicted of any of the following crimes, or their substantial equivalent under any similar statute, 
224 
"who has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions," shall be sentenced to a term of life imprisonment without parole: 
· Murder (N.J.S.A. 2C:11-3);
· Aggravated manslaughter (N.J.S.A. 2C:11-4(a)); · First degree kidnapping (N.J.S.A. 2C:13-1);
· Sexual assault (N.J.S.A. 2C:14-2(a)(3) to (6)); · First degree robbery (N.J.S.A. 2C:15-1); or
· Carjacking (N.J.S.A. 2C:15-2). 
Note: Pursuant to N.J.S.A. 2C:43-7.1(e), a defendant sentenced to life without parole under section N.J.S.A. 2C:43-7.1(a) may be released on parole if the defendant "is at least 70 years of age" and "has served at least 35 years in prison pursuant to" N.J.S.A. 2C:43-7.1, and "the full Parole Board determines that the defendant is not a danger to the safety of any other person or the community." 
(b) Extended Term. N.J.S.A. 2C:43-7.1(b) requires the court to impose an extended term if the circumstances in subsection (1) or (2) exist: 
(1) the defendant is being sentenced for any of the following crimes and has two or more convictions for any of those crimes or the crimes enumerated in N.J.S.A. 2C:43-7.1(a), "regardless of the dates of the convictions": 
  • ·  Second degree manslaughter (N.J.S.A. 2C:11-4); 

  • ·  Second or third degree assault (N.J.S.A. 2C:12- 
    1(b)); 

  • ·  Second degree kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Aggravated criminal sexual contact under any circumstances set forth in N.J.S.A. 2C:14- 2(a)(3) to (6) (N.J.S.A. 2C:14-3); 

225 
· Second degree robbery (N.J.S.A. 2C:15-1); 
· Second degree burglary (N.J.S.A. 2C:18-2); or 
· Second degree possession of weapons for an unlawful purposes (N.J.S.A. 2C:39-4). 
OR 
(2) The defendant: (1) is convicted of a crime enumerated in N.J.S.A. 2C:43-7.1(a); (2) "does not have two or more prior convictions that require sentencing under" N.J.S.A. 2C:43-7.1(a); and (3) has two or more prior convictions that would require sentencing under" N.J.S.A. 2C:43-7.1(b)(1) if the defendant "had been convicted of a crime enumerated in" N.J.S.A. 2C:43-7.1(b)(1). 
(c) Timing of Convictions. N.J.S.A. 2C:43-7.1(c) provides: "The provisions of this section shall not apply unless the prior convictions are for crimes committed on separate occasions and unless the crime for which the defendant is being sentenced was committed either within 10 years of the date of the defendant's last release from confinement for commission of any crime or within 10 years of the date of the commission of the most recent of the crimes for which the defendant has a prior conviction." 
(d) Notice and Hearing. Within fourteen days of entry of a guilty plea or return of a verdict, the State must serve notice upon defendant of the intention to impose sentence pursuant to N.J.S.A. 2C:43-7.1(d). See also R. 3:21-4(f). The court may not impose a sentence pursuant to N.J.S.A. 2C:43-7.1 unless the ground for the sentence has been established at a hearing. 
5. Sexual Assault or Aggravated Criminal Sexual Contact Against Minors. N.J.S.A. 2C:44-3(g) requires that a defendant convicted of sexual assault (N.J.S.A. 2C:14-2) or criminal sexual contact (N.J.S.A. 2C:14-3) be sentenced to an extended term of imprisonment upon application of the prosecutor, if the crime involved violence or the threat of violence and the victim was sixteen years of age or less. 
226 
G. Fines Authorized, or Required, by Law: Statutory Provisions 
1. Human Trafficking. N.J.S.A. 2C:13-8(d) requires a fine not less than $25,000 for a first degree crime. N.J.S.A. 2C:13- 9(c)(1) requires a fine not less than $15,000 for a second degree crime. 
2. Assisting in Human Trafficking. N.J.S.A. 2C:13-9(c)(1) mandates a fine of at least $15,000. 
3. Commercial Sexual Abuse of a Minor. N.J.S.A. 2C:13-10(c) provides that a person who commits the offense of advertising commercial sexual abuse of a minor, contrary to N.J.S.A. 2C:13- 10(b), shall be ordered to pay a fine of at least $25,000, which shall be deposited in the Human Trafficking Survivor's Assistance Fund. 
4. Pornography. N.J.S.A. 2C:14-9(c) authorizes "a fine not to exceed $30,000" for a third degree pornography offense. 
H. Restitution: Statutory Provisions 
Human Trafficking. N.J.S.A. 2C:13-8(e)(1) and (2) require the court to award the victim restitution which is the greater of (1) "the gross income or value to the defendant of the victim's labor or services," or (2) "the value of the victim's labor or services as determined by" law. 
I. Registrations, Penalties, Fees, Assessments, Reporting and Monitoring Requirements, and Civil Commitment: Statutory Provisions 
1. Megan's Law Registration Requirements. N.J.S.A. 2C:7-1 to -23 sets forth registration and public notification requirements for a person who committed a "sex offense." Pursuant to N.J.S.A. 2C:7-2(b), a sex offense includes the following crimes: 
· Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); · Sexual assault (N.J.S.A. 2C:14-1)); 
227 
  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1(c)(2)); 

  • ·  Endangering the welfare of a child by engaging in sexual conduct that would impair or debauch the morals of the child (N.J.S.A. 2C:24-4(a)); 

  • ·  Endangering the welfare of a child (N.J.S.A. 2C:24-4(b) (3) or (4) or (5)(a)); 

  • ·  Luring or enticing a child (N.J.S.A. 2C:13-6); 

  • ·  Criminal sexual contact of a minor (N.J.S.A. 2C:14-3(b); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1); 

  • ·  Criminal restraint (N.J.S.A. 2C:13-2); 

  • ·  False imprisonment "if the victim is a minor and the offender is not the parent of the victim" (N.J.S.A. 2C:13-3; and 

  • ·  Knowingly promoting prostitution of a child (N.J.S.A. 2C:34-1(b)(3) or (4)). 
    Failure to comply with Megan's Law registration requirements is a third degree crime. N.J.S.A. 2C:7-2(d). 
    2. Megan's Law Penalties. N.J.S.A. 2C:14-10(a) provides that in addition to any other fine, fee, assessment or penalty authorized by Title 2C, a person convicted of a sex offense, as defined by N.J.S.A. 2C:7-2(b), "shall be assessed a penalty for each such offense not to exceed:" 
    · $2000 for a first degree crime;
    · $1000 for a second degree crime;
    · $750 for a third degree crime; and · $500 for a fourth degree crime. 

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3. Assisting in Human Trafficking Business License Revocation. 
N.J.S.A. 2C:13-9(c)(2) provides that "the court shall direct any issuing State, county, or municipal governmental agency to revoke any license, permit, certificate, approval, registration, charter, or similar form of business or professional authorization required by law concerning the operation of that person's business or profession, if that business or profession was used in the course of the crime." 
4. Serological Testing. N.J.S.A. 2C:43-2.2(a) requires a defendant convicted of aggravated sexual assault or sexual assault (N.J.S.A. 2C:14-2) "submit to an approved serological test for acquired immune deficiency syndrome (AIDS) or infection with the human immunodeficiency virus (HIV) or any other related virus identified as a probable causative agent of AIDS," upon request by the victim and prosecutor. The court may require the defendant to pay the cost of the test. N.J.S.A. 2C:43-2.3(c). 
5. Sexual Assault Nurse Examiner Program Assessment. N.J.S.A. 2C:43-3.6(a) requires an $800 assessment for any sex offense defined in N.J.S.A. 2C:7-2. 
6. Surcharge for Certain Sex Offenders. N.J.S.A. 2C:43-3.7 requires any person convicted of aggravated sexual assault (N.J.S.A. 2C:14-2(a)), sexual assault (N.J.S.A. 2C:14-2(b)), aggravated criminal sexual contact (N.J.S.A. 2C:14-3(a)), or criminal sexual contact (N.J.S.A. 2C:14-3(b)), to pay a $100 surcharge to fund programs and grants for the prevention of violence against women. 
7. Restricted Internet Access. N.J.S.A. 2C:43-6.6(a)(1) to (4) provides that any person who (1) committed a sex offense as defined in N.J.S.A. 2C:7-2(b) and is required to register under Megan's Law (N.J.S.A. 2C:7-2); or (2) is serving a special sentence of parole supervision under N.J.S.A. 2C:43-6.4, or has been convicted of promoting or providing obscene materials to a minor (N.J.S.A. 2C:34-3), "shall" be subject to the following Internet access conditions "where the trier of fact makes a finding that a computer or any other device with Internet capability was used to facilitate the commission of the crime": 
(1) Prohibited access of "a computer or any other device with Internet capability without the prior written approval of the court," with the exception that a person on probation or parole "may use a computer or any other device with Internet capability in connection with that person's 
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employment" or to "search for employment with the prior approval of the person's probation or parole officer"; and 
(2) "[P]eriodic unannounced examinations of the person's computer . . . including the retrieval and copying of all data . . . and removal of such information, equipment or device to conduct a more thorough inspection"; and 
(3) Installation, "at the person's expense, [of] one or more hardware or software systems to monitor the Internet use"; and 
(4) "[A]ny other appropriate restrictions concerning the person's use or access of a computer or any other device with Internet capability." 
A violation of the Internet access restrictions constitutes a fourth degree crime. N.J.S.A. 2C:43-6.6(b). 
8. Sex Offender Restraining Order. N.J.S.A. 2C:44-8 authorizes the court to enter an order restraining a sex offender from contact with the victim or the victim's family and from entering certain locations. 
9. Involuntary Civil Commitment Upon Completion of Sentence (the Sexually Violent Predator Act). N.J.S.A. 30:4-27.24 to - 27.38 (the Sexually Violent Predator Act) provides for the civil commitment for specialized treatment of sex offenders who "suffer from a mental abnormality or personality disorder," which renders the person "likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. The court may impose commitment over the defendant's objection if it finds "by clear and convincing evidence that the patient needs continued involuntary commitment to treatment." N.J.S.A. 30:4-27.32(a). 
10. The Sex Offender Monitoring Act. N.J.S.A. 30:4-123.89 to 4-123.95 requires continuous satellite monitoring of sex offenders after release from prison. N.J.S.A. 30:4-123.92. A violation of a monitoring condition is a third degree crime. N.J.S.A. 30:4-123.94. 
J. Sex Offender Treatment: Statutory Provisions 
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1. Statutory Authority for Sex Offender Treatment. Pursuant to N.J.S.A. 2C:47-1, a defendant convicted of any of the following offenses, or an attempt to commit any of the following offenses, may be eligible for sex offender treatment, so long as the court does not impose a sentence of life imprisonment without the possibility of parole: 
  • ·  Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 

  • ·  Sexual assault (N.J.S.A. 2C:14-2(b), (c)); 

  • ·  Aggravated criminal sexual contact (N.J.S.A. 2C:14-3); 

  • ·  Kidnapping (N.J.S.A. 2C:13-1(c)(2)); 

  • ·  Endangering the welfare of a child by engaging in sexual conduct (N.J.S.A. 2C:24-4(a)); or 

  • ·  Endangering the welfare of a child by recording the child in a sex act (N.J.S.A. 2C:24-4(b)(4)). 

2. Psychological Examination. N.J.S.A. 2C:47-1 provides that if a defendant is eligible for sex offender treatment the court must order the Department of Corrections to conduct a psychological examination of the defendant to determine whether the defendant's conduct was characterized by a pattern of repetitive, compulsive behavior and, if it was, whether the defendant is amenable to sex offender treatment and is willing to participate in the treatment. The Department of Corrections must conduct the examination within thirty days. N.J.S.A. 2C:47-2. 
3. Judicial Findings Regarding the Psychological Examination. 
If the examination report concludes that the defendant's conduct was characterized by a pattern of repetitive, compulsive behavior, and that the defendant is amenable to sex offender treatment and is willing to participate in treatment, then the court must state on the judgment of conviction whether it agrees with these conclusions, and it must explain its basis for the findings. N.J.S.A. 2C:47-3(a). 
4. Circumstances That Require Sex Offender Treatment. The court shall sentence a defendant to sex offender treatment if: (1) the psychological examination report concludes that the defendant's conduct was characterized by a pattern of 
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repetitive, compulsive behavior, and that the defendant is amenable to sex offender treatment and is willing to participate in such treatment; (2) the Department of Corrections recommends the defendant receive sex offender treatment; and (3) the court makes its own findings that the defendant's conduct was characterized by a pattern of repetitive, compulsive behavior, and that the defendant is amenable to sex offender treatment and is willing to participate in such treatment. N.J.S.A. 2C:47- 3(a) and (b). 
(a) Inpatient Treatment. The court shall require the defendant to receive sex offender treatment at the Adult Diagnostic and Treatment Center for sex offender (ADTC or Avenel) if the court imposes a term of incarceration. N.J.S.A. 2C:47-3(b). If the term of incarceration is seven years or less, the defendant shall be detained in the Adult Diagnostic and Treatment Center, not in a prison. N.J.S.A. 2C:47-3(h)(1). If the sentence is greater than seven years, or if the sentence includes a period of parole ineligibility that is seven years or greater, the defendant shall be detained in a facility designated by the Commissioner of the Department of Corrections until the last five years of the sentence, at which time the defendant must be transferred to the Adult Diagnostic and Treatment Center, so long as the defendant still is amenable to sex offender treatment and is willing to comply with treatment. N.J.S.A. 2C:47-3(h)(2) and (3). 
(b) Outpatient Treatment. If the court imposes probation and sex offender treatment is warranted, the court shall require the defendant to receive outpatient treatment as a condition of probation. N.J.S.A. 2C:47-3(b). 
5. Cases in Which the Court May Not Impose Sex Offender Treatment. The court shall not impose sex offender treatment if: 
  • ·  The defendant's conduct was not repetitive and compulsive, N.J.S.A. 2C:47-3(d); or 

  • ·  The defendant is not amenable to sex offender treatment, N.J.S.A. 2C:47-3(d); or 

  • ·  The defendant's conduct was repetitive and compulsive and the defendant is amenable to sex offender treatment, but 

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the defendant is not willing to participate in sex offender treatment, N.J.S.A. 2C:47-3(f); or 
· The court imposes a term of life imprisonment without the possibility of parole. N.J.S.A. 2C:47-3(j). 
6. Place of Incarceration of a Defendant Who Is Unwilling to Participate in Sex Offender Treatment. If the defendant's conduct was repetitive and compulsive and the defendant is amenable to sex offender treatment but unwilling to participate in sex offender treatment, then the defendant shall be detained at a facility designated by the Commissioner. 
(a) Parole. After serving any mandatory minimum term of imprisonment, the defendant shall be eligible for parole in accordance with N.J.S.A. 2C:47-5. N.J.S.A. 2C:47-3(f). 
(b) Request for Transfer to Inpatient Treatment. On a biennial basis the defendant may request transfer to the Adult Diagnostic and Treatment Center. N.J.S.A. 2C:47- 3(f). The Commissioner shall grant the request if a psychological evaluation reveals that the defendant is amenable to treatment and is willing to comply with its terms. Ibid. 
7. Transfer Out of Inpatient Treatment. N.J.S.A. 2C:47-4.1(a) requires the Commissioner to transfer a defendant out of sex offender treatment if the defendant is (1) serving a life sentence without the possibility of parole, (2) not complying with the terms of treatment, or (3) no longer amenable to treatment. 
8. Request for Return to Inpatient Treatment. On a biennial basis the defendant may request a transfer back to the Adult Diagnostic and Treatment Center. N.J.S.A. 2C:47-4.1(b). If a psychological examination concludes that the defendant is amenable to treatment and is willing to cooperate with the terms of treatment, the Commissioner shall grant the request. Ibid. 
9. Credits Conditioned Upon Compliance With Inpatient Treatment. The sentence shall not be reduced by good behavior or work credits for any period that the defendant was not amenable to treatment, was unwilling to comply with treatment, or was detained at a facility other than the Adult Diagnostic and Treatment Center. N.J.S.A. 2C:47-3(d), (i), (g); N.J.S.A. 2C:47-4.1(c). 
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10. Parole. A sex offender confined under Chapter 47 may not be paroled unless a special classification review board finds that the defendant has achieved a satisfactory level of progress in sex offender treatment. N.J.S.A. 2C:47-5(a). Upon recommendation from the special classification review board, the State Parole Board should release the defendant unless it concludes, by a preponderance of the evidence, that the defendant failed to cooperate in rehabilitation or that there is a reasonable expectation that the defendant will violate conditions of parole. Ibid. 
11. Notice of a Defendant's Release After the Defendant Was Denied Parole. The Attorney General and local prosecutor must receive at least ninety days' notice of the defendant's release and must be advised as to whether the defendant may be "in need of involuntary commitment" or may be a "sexually violent predator," as those terms are defined in the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. N.J.S.A. 2C:47- 5(d). (The Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, provides for the civil commitment for specialized treatment of sex offenders who "suffer from a mental abnormality or personality disorder," which renders the person "likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4- 27.26.) 
12. Parole Revocation and Psychological Examination. In the event a sex offender's parole is revoked, the Department of Corrections shall, within ninety days of revocation, complete a psychological examination of the offender to determine whether the parole violation "reflects emotional or behavioral problems as a sex offender that cause the offender to be incapable of making any acceptable social adjustment in the community," and whether the offender is amenable to and willing to participate in sex offender treatment. N.J.S.A. 2C:47-5.1(a). 
(a) Sentence to Inpatient Treatment. If the report concludes that the parole violation "reflects emotional or behavioral problems as a sex offender that cause the offender to be incapable of making any acceptable social adjustment in the community and further reveals that the offender is amenable to sex offender treatment and is willing to participate in such treatment," then the defendant shall be confined in the Adult Diagnostic and 
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Treatment Center and shall be eligible for parole pursuant to N.J.S.A. 2C:47-5. N.J.S.A. 2C:47-5.1(b). 
(b) Sentence to a Facility Designated by the Commissioner (Unwillingness to Comply). The defendant shall be detained in a facility designated by the Commissioner if a 
psychological examination report concludes that defendant suffers from emotional or behavioral problems as a sex offender that cause him or her to be incapable of making any acceptable social adjustment in the community and that the defendant is amenable to treatment but not willing to participate in sex offender treatment. N.J.S.A. 2C:47-5.1(c). The defendant shall be eligible for parole in accordance with N.J.S.A. 2C:47-5. N.J.S.A. 2C:47-5.1(c). However, the sentence may not be reduced by work credits. N.J.S.A. 2C:47-5.1(e). 
(c) Sentence to a Facility Designated by the Commissioner (No Emotional or Behavioral Problem as a Sex Offender). The defendant shall be confined in a facility designated by the Commissioner if the examination report concludes that the parole violation "does not reflect emotional or behavioral problems as a sex offender." N.J.S.A. 2C:47- 5.1(d)(1)(a). The defendant shall be eligible for parole in accordance with Title 30, but the parole eligibility date shall not be reduced by work or good behavior credits. N.J.S.A. 2C:47-5.1(d)(2). 
(d) Sentence to a Facility Designated by the Commissioner (Not Amenable to Treatment). The defendant shall be confined in a facility designated by the Commissioner if the offender's parole violation "reflects emotional or behavioral problems as a sex offender that cause the offender to be incapable of making any acceptable social adjustment in the community and further reveals that the offender is not amenable to sex offender treatment." N.J.S.A. 2C:47-5.1(d)(1)(b). The defendant shall be eligible for parole in accordance with Title 30, but the parole eligibility date shall not be reduced by work or good behavior credit. N.J.S.A. 2C:47-5.1(d)(2). 
(e) Request for Transfer to Inpatient Treatment. A defendant may request transfer to the Adult Diagnostic and Treatment Center on a biennial basis. N.J.S.A. 2C:47- 5.1(f). If a psychological evaluation reveals that the defendant is amenable to treatment and is willing to comply 
the 
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with treatment, the Commissioner shall grant the request. Ibid. The defendant will be eligible for parole pursuant to N.J.S.A. 2C:47-5, and will earn work and good behavior credits. N.J.S.A. 2C:47-5.1(e). 
K. Sex Offender Sentencing: Case Law 
1. Notice and Plea Agreements. When a defendant pleads guilty to a sex offense, the court must notify the defendant of the parole consequences and potential sex offender treatment consequences of the guilty plea, State v. Luckey, 366 N.J. Super. 79, 89-90 (App. Div. 2004), as well as the requirement of parole supervision for life. State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003). 
2. Plea Agreements and Involuntary Confinement. In negotiating a plea, the prosecutor may not bargain away the State's right to seek, upon completion of sentence, involuntary civil commitment under the Sexually Violent Predator Act. In re Commitment of P.C., 349 N.J. Super. 569, 572 (App. Div. 2002). 
3. Sex Crime Victims Treatment Penalty. The sex offender penalty amounts listed in N.J.S.A. 2C:14-10(a) are the maximum penalties the court may impose. State v. Bolvito, 217 N.J. 221, 224 (2014). In fixing the penalty amount, the court should consider the nature of the offense and the defendant's ability to pay. Id. at 233-35. 
4. Megan's Law Offenses. While Megan's Law requires registration for "sex offenses," the N.J.S.A. 2C:7-2(b) offenses that define a sex offense encompass more than just sex offenses; they include non-sex crimes against children. In re T.T., 188 N.J. 321, 333 (2006). 
5. Sex Offender Treatment Examination and the Privilege Against Self-Incrimination. The court may delay the N.J.S.A. 2C:47-1 psychological exam for sex offender treatment to protect the defendant's privilege against self-incrimination. State v. Marrero, 239 N.J. Super. 119, 122-23 (Law Div. 1989). The privilege continues until the defendant has exhausted all direct appellate remedies. Lewis v. Dep't of Corr., 365 N.J. Super. 503, 506 (App. Div. 2004). 
6. Good Time Credits and the Privilege Against Self- Incrimination. A defendant has a liberty interest in good time 
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credits. Bender v. N.J. Dep't of Corr., 356 N.J. Super. 432, 443-44 (App. Div. 2003). Thus, good time credits cannot be denied when the defendant refuses to discuss conduct pursuant to the privilege against self-incrimination. Id. at 444. 
7. "Repetitive" and "Compulsive" Behavior Defined. The Legislature did not define "repetitive" and "compulsive" in N.J.S.A. 2C:47-1 to -10. State v. N.G., 381 N.J. Super. 352, 361 (App. Div. 2005). Since they are words of common understanding, they should be given their ordinary and well- understood meanings. Ibid. "Repetitive" means "to do, experience, or produce again." Ibid. "Compulsive" means "caused by obsession or compulsion," with "compulsion" meaning "an irresistible impulse to act irrationally." Id. at 361-62. 
(a) Constitutionality. "Because these definitions are not abstract and may be understood by a citizen of average intelligence, the statute is not unconstitutionally vague." Id. at 362. 
(b) Thoughts as Behavior. "Repetitive" and "compulsive" behavior is not limited to repetitive physical sexual acts or physical urges, but includes psychological conduct and urges, such as sexual fantasies or thoughts. State v. Hass, 237 N.J. Super. 79, 85-86 (Law Div. 1988) (finding repetitive and compulsive behavior based on thought patterns). 
8. Setting the Length of the Sentence. In sentencing a sex offender the court must weigh the aggravating and mitigating factors and may impose a period of parole ineligibility, an extended term, and consecutive terms. Gerald v. Comm'r, N.J. Dep't of Corr., 102 N.J. 435, 438 (1986); State v. Chapman, 95 N.J. 582, 593 (1984). The court must impose a fixed term of years to the Adult Diagnostic Treatment Center. State v. Dittmar, 188 N.J. Super. 364, 366-67 (App. Div. 1982), certif. denied, 97 N.J. 678 (1984). 
9. Sex Offender Treatment Required Only at the Adult Diagnostic Treatment Center. Pursuant to N.J.S.A. 2C:47-3(k), the Commissioner is not required to provide for the treatment of a sex offender who is not incarcerated in the Adult Diagnostic Treatment Center. In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 636-38 (App. Div.), aff'd on other grounds, 204 N.J. 179 (2010), cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). However, the defendant may qualify for 
237 
mental health treatment pursuant to Department of Corrections regulations. Ibid. 
10. Transfer to the Adult Diagnostic Treatment Center. In order to transfer an offender to the ADTC, the Commissioner must show that: (1) the offender's conduct was characterized by a pattern of repetitive and compulsive behavior; (2) the offender is amenable to treatment; and (3) the offender is willing to participate in the treatment. Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182-86 (App. Div. 2011). "[T]he Commissioner does not have the discretion [under N.J.S.A. 30:4- 91.2] to assign offenders to the ADTC whom the Legislature has determined should not be treated there." See also W.B. v. N.J. Dep't of Corr., 434 N.J. Super. 340, 347-48 (App. Div. 2014) (holding that the Williams rationale applies to an inmate convicted in another state and transferred to a New Jersey prison). 
11. Liberty Interest and Sex Offender Treatment. "[T]he actions of the trial court in sentencing the defendant to Avenel implicate a liberty interest," which "arise[s] from the expectation that ADTC parole standards and rehabilitative procedures will not be applied absent a finding of 'repetitive' and 'compulsive behavior.'" State v. Howard, 110 N.J. 113, 127- 29 (1988) (quoting N.J.S.A. 2C:47-3(a)). Additionally, the liberty interest arises from the stigma created by classification as a repetitive and compulsive sex offender. Id. at 129. 
12. Delay in Sex Offender Treatment and Cruel and Unusual Punishment. A nine-month delay in transferring a sex offender to the Adult Diagnostic Treatment Center, during which time the defendant was incarcerated in county jail, did not constitute cruel and unusual punishment. State v. Howard, 110 N.J. 113, 132-33 (1988). 
13. Judicial Findings and Sex Offender Treatment. The prerequisite findings resulting in commitment to the Adult Diagnostic Treatment Center are made by a judge by a preponderance of the evidence. State v. Howard, 110 N.J. 113, 131 (1988); State v. Luckey, 366 N.J. Super. 79, 90-91 (App. Div. 2004). 
14. Concurrent Terms and Sex Offender Treatment. When a defendant receives concurrent sentences to prison and the Adult Diagnostic Treatment Center, and the prison sentence is longer 
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than the ADTC sentence, the defendant may be transferred to prison to serve the remainder of the sentence after completion of the ADTC term. State v. Chapman, 95 N.J. 582, 592 (1984). 
15. Consecutive Terms and Sex Offender Treatment. The Code permits a sex offender to be sentenced to consecutive ADTC and prison terms for sex- and non-sex related offenses arising from one incident. State v. Chapman, 95 N.J. 582, 592 (1984). 
16. Presumption of Imprisonment. When the N.J.S.A. 2C:47-1 examination report recommends probation with outpatient treatment for a first or second degree offense, the court must consider that recommendation in light of the presumption of imprisonment applicable to first and second degree crimes. State v. Hamm, 207 N.J. Super. 40, 44-45 (App. Div. 1986). 
17. Parole Ineligibility. The parole disqualifier set forth in N.J.S.A. 2C:14-6 (applicable to a second or subsequent conviction for sexual assault or aggravated criminal sexual contact) applies to defendants sentenced to jail terms and to sex offender treatment. State v. Chapman, 95 N.J. 582, 588-89 (1984). 
18. NERA and Sexual Assault. NERA applies to a sexual assault conviction under N.J.S.A. 2C:14-2(b) or (c)(1). State v. Drake, 444 N.J. Super. 265, 283, certif. denied, 226 N.J. 213 (2016). 
19. Megan's Law, Civil Regulatory Scheme. The Megan's Law registration and notification requirements create a civil regulatory scheme that does not amount to punishment. Doe v. Poritz, 142 N.J. 1, 73 (1995). 
20. Megan's Law Constitutionality. Our Court has generally upheld as constitutional the Megan's Law registration and notification requirements. Doe v. Poritz, 142 N.J. 1, 73-111 (1995). See also In re C.A., 146 N.J. 71, 80-110 (1996) (discussing Attorney General guidelines on community notification and due process). 
21. Sex Offender Monitoring Act (SOMA), Penal in Nature. While the Legislature likely intended to create a civil, regulatory scheme in passing the SOMA, it created a form of punishment similar to parole. Riley v. N.J. State Parole Bd., 219 N.J. 270, 294-97 (2014) (comparing SOMA to the civil regulatory scheme of Megan's Law). 
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22. Sex Offender Monitoring Act (SOMA), Ex Post Facto. Because the SOMA monitoring provisions are penal, the Ex Post Facto Clauses of the New Jersey and United States Constitutions prohibit their application to a sex offender who completed his or her sentence prior to the adoption of the SOMA. Riley v. N.J. State Parole Bd., 219 N.J. 270, 297 (2014). 
23. Parole Supervision for Life and Ex Post Facto Concerns. 
Parole supervision for life (PSL) is a harsher sentence than community supervision for life (CSL) (the sentence in effect until 2003 when the Legislature replaced it with parole supervision for life). L. 2003, c. 267, § 1. State v. Perez, 220 N.J. 423, 436-42 (2015). Unlike CSL, PSL mandates an extended term without the possibility of parole if the defendant has committed an offense listed in N.J.S.A. 2C:43-6.4(e). State v. Perez, 220 N.J. 423, 442 (2015). Because the consequences of PSL are harsher than those of CSL, a defendant who commits an offense listed in N.J.S.A. 2C:43-6.4(e) while serving CSL may not be sentenced to an extended term without the possibility of parole (the sentence required if the defendant committed the offense while on PSL). State v. Perez, 220 N.J. 423, 442 (2015). See also State v. Hester, ___ N.J. Super. ___, ___ (2017) (slip. op. at 3) ("the commission of the predicate crime, for which defendants received the special sentence of CSL, is the operative 'crime' for determining whether the 2014 amended law violates the Ex Post Facto Clauses."). 
24. Parole Supervision for Life and Double Jeopardy. Parole supervision for life is a penal consequence; thus, if the court omitted it from a sentence, double jeopardy protections preclude it from being added after the defendant has completed the sentence. State v. Schubert, 212 N.J. 295, 305-08 (2012). 
25. Parole Supervision for Life and Guilty Pleas. Defense counsel must advise the defendant that a guilty plea will result in parole supervision for life, as the term is penal. State v. Smullen, 437 N.J. Super. 102, 110 (App. Div. 2014). Defense counsel's failure to do so may form the basis of an ineffective assistance of counsel claim. Ibid. 
26. Parole Supervision for Life, Vagueness and Separation of Powers. Because N.J.S.A. 2C:43-6.4(b) provides sufficient notice of illegal conduct, it is not unconstitutionally vague and does not violate the separation of powers doctrine. State v. Bond, 365 N.J. Super. 430, 438-43 (App. Div. 2003). 
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27. Constitutionality of Internet Restrictions. Restrictions on access to the internet does not, on its face, violate the Federal and State constitutional rights to free speech, free association, and due process of law. J.B. v. N.J. Parole Bd., 433 N.J. Super. 327, 344 (App. Div. 2013) (J.B. I), certif. denied, 217 N.J. 296 (2014). However, an offender has due process rights to challenge the restrictions. J.I. v. N.J. Parole Bd., ___ N.J. ___, ___ (2017) (slip op. at 43-47). The restrictions must be "reasonably tailored to advance the goals of rehabilitation or public safety." Id. at ___ (slip op. at 41). "The parole authorities do not have unbridled discretion to impose unnecessary or oppressive Internet conditions that do not advance a rational penological policy." Id. at ___ (slip op. at 42). 
28. Constitutionality of Polygraph Examinations. The Parole Board may use "'instant offense' and 'maintenance' polygraph examinations for therapeutic purposes in the treatment of sex offenders on PSL [parole supervision for life] or CSL [community supervision for life]. The Parole Board may also use the substantive assertions made by such polygraphed offenders for both therapeutic and evidential purposes." J.B. v. N.J. State Parole Bd., 444 N.J. Super. 115, 157 (App. Div.), certif. granted, 226 N.J. 213-14 (2016) (J.B. II). It may not use "technical polygraph results in any evidential manner when making decisions to penalize PSL or CSL offenders or to curtail their activities." Ibid. 
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         XVI.  JAIL AND GAP-TIME CREDITS
A defendant is entitled to receive credit for any time served in jail between arrest and the time of sentencing (see sections A and C). This is known as "jail credit." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988) (Richardson II). A defendant is also entitled to receive credit against a subsequent sentence for time spent incarcerated on a prior sentence (see sections B and D). This is known as "gap-time credit." Id. at 242. 
A. Jail Credit: Court Rules and Statutory Provisions 
1. Court Rule Authorizing Jail Credit. Rule 3:21-8 provides: "The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." 
2. Jail Credits Included in the Judgment of Conviction. Rule 3:21-5(b) requires the court include in the judgment of conviction a statement of the jail credits awarded to the defendant. 
3. Jail Credit Explained to the Defendant. N.J.S.A. 2C:43- 2(f)(2) instructs the court to explain to the defendant the jail credits that apply to the sentence. 
B.  Gap-Time Credit:  Statutory Provisions
Statutory Authority for Gap-Time Credit. N.J.S.A. 2C:44-5(b)(2) provides that when a defendant, previously sentenced to imprisonment, is subsequently sentenced to another term for an offense committed prior to the former sentence (other than for an offense committed while in custody), the defendant shall be credited with time served on the prior sentence "in determining the permissible aggregate length of the term or terms remaining to be served." These gap-time credits apply regardless of whether the court imposes concurrent or consecutive terms. N.J.S.A. 2C:44-5(b)(2). 
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C. Jail Credit: Case Law 
1. Policy. "Jail credits were conceived as a matter of equal protection or fundamental fairness and a means of avoiding the double punishment that would result if no such credits were granted." State v. Hernandez, 208 N.J. 24, 36 (2011). Jail credits eliminate disparate treatment to poor and presumably innocent persons who cannot make bail. Ibid. 
2. Jail Credits Are Mandatory. The court must award jail credits for time served in custody prior to sentencing. State v. Hernandez, 208 N.J. 24, 37 (2011). 
3. Credits Explained. A sentencing judge should give a statement of reasons explaining the basis for an award of jail credits, particularly when the issue is in dispute. State v. Alevras, 213 N.J. Super. 331, 339 (App. Div. 1986). 
4. Day-for-Day Award. Jail credits are "day-for-day" credits, subtracted from the front end of the sentence. Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006). "The practical effect of that allocation is that jail credits will 'reduce a[] [parole] ineligibility term as well as the sentence imposed.'" State v. Hernandez, 208 N.J. 24, 37 (2011) (quoting State v. Mastapeter, 290 N.J. Super. 56, 64, (App. Div.), certif. denied, 146 N.J. 569 (1996)). This approach is different from the one used to compute gap-time credits. State v. Hernandez, 208 N.J. 24, 38 (2011). Gap-time credits are subtracted from the back end of a sentence; thus, they do not reduce a parole ineligibility period. Id. at 38-39. 
5. Credits Are Based on Time Incarcerated. An award of jail credit is not dependent upon the date the State files a formal accusation or indictment, but rather, is based on the time spent confined while serving no valid sentence. State v. Garland, 226 N.J. Super. 356, 362 (App. Div.), certif. denied, 114 N.J. 288 (1988). 
6. Jail Credit and Commutation Credit. For a discussion of jail credits in relation to commutation credits awarded during incarceration, see Buncie v. Dep't of Corr., 382 N.J. Super. 214, 218 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006). 
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7. "Custody" Defined. Custody under Rule 3:21-8 signifies an involuntary confinement imposed by the court in a penal or medical facility. State v. Towey, 114 N.J. 69, 86 (1989). 
(a) Violations of Drug Court and Probation. Special probation pursuant to Track One of Drug Court is custodial for purposes of the jail credit rule because a defendant who leaves the facility without authorization is subject to prosecution for escape. State v. Stalter, 440 N.J. Super. 548, 554 (App. Div.), certif. denied, 223 N.J. 355 (2015). Id. at 556. The same is not true for a defendant who violates a term of regular probation under Track Two of Drug Court. Id. at 555. Generally, probation is not custodial for purposes of jail credit. Ibid.; State v. Evers, 368 N.J. Super. 159, 172-73 (App. Div. 2004). 
(b) Bail Release. A defendant is not entitled to jail credit for time spent released on bail. State in the Interest of I.C., 447 N.J. Super. 247, 255 (App. Div. 2016); State v. Boykins, 447 N.J. Super. 213, 220 (App. Div. 2016), certif. denied, ___ N.J. ___ (2017). 
(c) Voluntary Admission to a Hospital. Voluntary confinement in a psychiatric hospital is not custodial for purposes of jail credit, even if the confinement is a condition of bail. State v. Towey, 114 N.J. 69, 85-86 (1989). 
(d) Sex Offender Diagnostic Treatment Center. Confinement in a diagnostic treatment center for sex offenders is custodial for purposes of jail credits. State v. Lee, 60 N.J. 53, 58 (1972). 
(e) Religious Convent. Time spent in a religious convent awaiting trial need not be credited where the restrictions on liberty are not so severe as to be the equivalent of jail or a state hospital, even if residence at the covenant was a condition of bail. State v. Mirakaj, 268 N.J. Super. 48, 52-53 (App. Div. 1993). 
(f) Electronic Monitoring Program. A defendant is not entitled to jail credit for time spent participating in an electronic monitoring wristlet program as a condition of pretrial release. State v. Mastapeter, 290 N.J. Super. 56, 62-63 (App. Div.), certif. denied, 146 N.J. 569 (1996). 
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(g) Intensive Supervision Program. Participation in the Intensive Supervision Program (ISP) is not custodial for purposes of computing jail credit. State v. Adams, 436 N.J. Super. 106, 113-15, certif. denied, 220 N.J. 101 (2014). 
(h) Juvenile Community Home Program. Placement in a juvenile community home program as a condition of probation is not custodial for purposes of determining jail credits. State in the Interest of I.C., 447 N.J. Super. 247, 258 (App. Div. 2016). 
(i) Juvenile Intensive Supervision Program. The Juvenile Intensive Supervision Program is not the equivalent of detention; thus, jail credits may not be awarded for time spent in the program. State in the Interest of I.C., 447 N.J. Super. 247, 258 (App. Div. 2016). 
8. Multiple New Jersey Charges. When a defendant is facing (1) charges in more than one county, (2) multiple charges in more than one indictment, or (3) multiple charges in one indictment for crimes committed during multiple criminal episodes, the defendant is entitled to receive jail credit against each sentence for the time he or she was detained or arrested until the time that the first sentence is imposed. State v. Hernandez, 208 N.J. 24, 47-48 (2011); State v. Rippy, 431 N.J. Super. 338, 353-54 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). This holding is different from prior decisions that limited jail credits to the particular offense for which confinement was directly attributed. State v. Hernandez, 208 N.J. 24, 43 (2011) (discussing State v. Black, 153 N.J. 438, 456 (1998)). 
9. Consecutive Terms and Multiple Indictments. Where the defendant was convicted of charges in two separate indictments and, at a joint sentencing hearing, the court orders the sentences for the crimes charged in indictment one to run consecutive to the sentence for crimes charged in indictment two, jail credits apply to the front end of the aggregate term. State v. C.H., ___ N.J. ___, ___ (2017) (slip op. at 20-21). To award jail credits against the sentence resulting from indictment one and the sentence resulting from indictment two would provide a defendant a "double award." Id. at ___ (slip op. at 22-23). 
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10. Confinement in Another Jurisdiction. A defendant is entitled to jail credit for time incarcerated in a foreign jurisdiction only if the incarceration was due solely to the New Jersey charge. State v. Joe, ___ N.J. ___, ___ (2017) (slip op. at 20); State v. Hemphill, 391 N.J. Super. 67, 71 (App. Div. 2007); State v. Beatty, 128 N.J. Super. 488, 490-91 (App. Div. 1974). 
11. Offense Committed While Released on Bail. Where a defendant is arrested for a crime, is released on bail, is arrested on unrelated charges, and serves 155 days in jail before pleading guilty to the first crime (in exchange for dismissal of the charges on the second offense), the defendant is entitled to receive 155 days jail credit against the sentence on the first crime. State v. Rawls, 219 N.J. 185, 197-98 (2014) (applying the holding in State v. Hernandez, 208 N.J. 24, 47-48 (2011)). 
12. Probation Violation. Serving an incarcerated defendant with a violation of probation (VOP) statement of charges for a first, second, third or fourth degree offense is the equivalent of arresting the defendant for purposes of jail credits, and thus "triggers the award of jail credits for the period of pre- adjudication confinement against the VOP sentence and the sentence for the new offense." State v. DiAngelo, 434 N.J. Super. 443, 461 (App. Div. 2014). Jail credits accrue as of the date the statement of charges was issued and apply to any custodial term imposed for the VOP and the offense committed while on probation. Id. at 447, 462 (extending the holding in State v. Hernandez, 208 N.J. 24, 47-48 (2011), to VOP cases). 
13. Reversal of a Conviction on Appeal. When a defendant is incarcerated awaiting retrial after successfully challenging a conviction, and the defendant is not serving time for any other valid conviction, the court must award jail credit for time spent incarceration from the date of reversal to the date of resentencing. State v. Rippy, 431 N.J. Super. 338, 350-51 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). North Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S. Ct. 2072, 2077, 23 L. Ed. 2d 656, 665-66 (1969); State v. DeRosa, 332 N.J. Super. 426, 433-35 (App. Div. 2000). The defendant is also entitled to day- for-day credit for the time served on the reversed conviction (commonly called prior service credit). North Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S. Ct. 2072, 2077, 23 L. Ed. 2d 656, 666 (1969); State v. Sanders, 107 N.J. 609, 621 (1987); State v. Rippy, 431 N.J. Super. 338, 355 (App. Div. 2013), 
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certif. denied, 217 N.J. 284 (2014). For additional discussion of prior service credit, see Chapter XVIII, Direct Appeal by a Defendant. 
14. State Appeal of Jail Credits. "[T]he State may appeal an award of jail credits on the ground that they are not authorized by Rule 3:21-8." State v. Rippy, 431 N.J. Super. 338, 343 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). 
15. Incarceration as a Condition of Probation. Time spent in jail awaiting sentencing must be applied to reduce a term of imprisonment imposed as a condition of probation. State v. Carlough, 183 N.J. Super. 234, 235-36 (App. Div. 1982). 
16. Intensive Supervision Program Violation. A defendant who committed a crime while participating in the Intensive Supervision Program (N.J.S.A. 2C:43-11) is entitled to jail credits for any time between the date of arrest and either the date of sentencing for the offense or the date of sentencing for the violation of the Intensive Supervision Program. State v. Adams, 436 N.J. Super. 106, 113-15, certif. denied, 220 N.J. 101 (2014). 
D.  Gap-Time Credit:  Case Law
1. Gap-Time Credit Described. "The credit awarded under N.J.S.A. 2C:44-5(b) is referred to as 'gap-time credit' because it awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." State v. Hernandez, 208 N.J. 24, 38 (2011). The "credits apply towards the defendant's aggregate sentence, which is calculated as the length of the defendant's longest term when he or she is ordered to serve multiple sentences concurrently and is equal to the sum of all terms when he or she is ordered to serve multiple sentences consecutively." Ibid. (internal quotations omitted). 
2. Gap-Time Credits Reduce the "Back End" of a Sentence. 
"Unlike jail credits, gap-time credits are applied to the 'back end' of a sentence." State v. Hernandez, 208 N.J. 24, 38 (2011). If the court did not impose a parole ineligibility term, "gap-time credits will advance the date on which a defendant first becomes eligible for parole." State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013) (quoting State v. 
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Hernandez, 208 N.J. 24, 38-39 (2011)), certif. denied, 217 N.J. 284 (2014). While the rule may result in a windfall to defendants in some cases, the gap-time statute provides a uniform, bright-line rule that avoids the need to explain any delay or the parties' motives. State v. Franklin, 175 N.J. 456, 463-64 (2003). 
3. Policy of Gap-Time Credit. Gap-time credits counteract any dilatory tactics of the prosecutor in pursuing a conviction of an earlier offense after the defendant has been sentenced on another offense. State v. Hernandez, 208 N.J. 24, 37-38 (2011). The purpose is to avoid manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position as if the two offenses had been tried at the same time. State v. Franklin, 175 N.J. 456, 462 (2003); State v. Carreker, 172 N.J. 100, 105 (2002). Additionally, the gap-time statute is intended to limit the accumulation of consecutive sentences. State v. L.H., 206 N.J. 528, 546 (2011) (Rivera-Soto, J., concurring with the per curiam decision and quoting Richardson v. Nickolopoulos, 110 N.J. 241, 243 (1988) (Richardson II) and Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994)). 
4. Gap-Time Credits Are Mandatory. If the three elements of the gap-time statute are met (i.e., the defendant has been sentenced to prison, the defendant is subsequently sentenced to another prison term, and the subsequent sentence is for an offense that occurred prior to the imposition of the first sentence and not while in custody) then the court must award gap-time credits for the time the defendant spent incarcerated from imposition of the first sentence until imposition of the subsequent sentence. State v. Franklin, 175 N.J. 456, 462 (2003); State v. Carreker, 172 N.J. 100, 105 (2002). "The only exceptions have been cases in which . . . there was little or no risk of manipulation by the prosecutor." State v. L.H., 206 N.J. 528, 532 (2011) (Long, J., concurring with the per curiam decision denying the defendant gap-time credit and explaining that "manipulation by the prosecutor was a veritable impossibility" because DNA testing that was not available until ten years after the crime showed that L.H.'s DNA matched DNA from the crime). 
5. Jail Credit Is No Substitute for Gap-Time Credit. "[W]here gap-time credits are applicable, the judge has no discretion to award jail credits instead." State v. Rippy, 431 N.J. Super. 338 (App. Div. 2013) (citing to State v. Hernandez, 208 N.J. 24, 48-49 (2011)), certif. denied, 217 N.J. 284 (2014). See also 
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State v. Edwards, 263 N.J. Super. 256, 258 (App. Div. 1993) (explaining that gap-time credits include only the period of incarceration between imposition of the first and second sentence, not time spent in jail pending imposition of the earlier sentence). 
6. Consecutive Terms. Gap-time credits "reduce the aggregate of consecutive sentences" and concurrent sentences. Booker v. N.J. State Parole Bd., 136 N.J. 257, 266 (1994). 
7. Parole Ineligibility Period Unaffected by Gap-Time Credit. 
Gap-time credits do not reduce a parole bar. State v. Hernandez, 208 N.J. 24, 39 (2011); Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994). This rule applies to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA). State v. Hernandez, 208 N.J. 24, 38-39 (2011); Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429-30 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002). 
Equal Protection. This rule may result in similarly situated defendants reaching parole eligibility dates at different times. Richardson v. Nickolopoulos, 110 N.J. 241, 250-52 (1988) (Richardson II). But the rule does not violate a defendant's equal protection rights. Lorenzo v. Edmiston, 705 F. Supp. 209, 215 (D.N.J.), aff'd, 882 F.2d 511 (3d Cir. 1989). 
8. First Sentence Complete. The plain language of the gap- time statute (N.J.S.A. 2C:44-5(b)(2)) does not require "that [a] defendant be serving the original sentence when the later sentence is imposed." State v. L.H., 206 N.J. 528, 530-31 (Long, J., concurring). The majority of decisions have held that gap-time credit applies even when the defendant has completed the first sentence. State v. L.H., 206 N.J. 528, 530- 31 (Long, J., concurring and referring to State v. Lawlor, 222 N.J. Super. 241, 245 (App. Div. 1988), State v. Ruiz, 355 N.J. Super. 237, 242 (Law Div. 2002), and State v. French, 313 N.J. Super. 457, 463 n.7 (Law Div. 1997)). But see State v. Garland, 226 N.J. Super. 356, 361 (App. Div. 1988) (stating in dictum that gap-time credit "relates to time spent in imprisonment as a result of a sentence previously imposed and has no application unless defendant, while incarcerated, is sentenced for an offense occurring before the prior sentence"). 
9. Violation of Probation. A defendant is entitled to gap- time credit when the offense for which sentence is imposed was a 
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violation of probation that the defendant committed prior to the imposition of sentence on another violation of probation. State v. Ogletree, 435 N.J. Super. 11, 15-16 (App. Div.), certif. denied, 220 N.J. 40 (2014); State v. Guaman, 271 N.J. Super. 130, 131 (App. Div. 1994). 
10. Violation of Parole. A defendant is entitled to gap-time credit for the period served in custody following an arrest for a violation of parole until sentencing on the original underlying offense. State v. Franklin, 175 N.J. 456, 471-72 (2003). However, the defendant may not receive gap-time credit for any new offense committed while on parole. Ibid.; State v. Hunt, 272 N.J. Super. 182, 185 (App. Div.), certif. denied, 137 N.J. 307 (1994). 
11. Non-Indictable Offenses. Gap-time credit may be awarded for time served in State prison as a result of a sentence imposed by a municipal court on non-indictable offenses. State v. French, 313 N.J. Super. 457, 463-67 (Law Div. 1997). 
12. Incarceration Due to a Motor Vehicle Violation. Gap-time credit applies when the first incarceration was the result of a Title 39 driving while intoxicated violation. State v. Walters, 445 N.J. Super. 596, 600-02 (App. Div. 2016), ___ certif. denied, ___ (2017). The incarceration need not be the result of a Title 2 crime to entitle the defendant to a gap-time credit award. Ibid. 
13. Actual Incarceration. Gap-time credits are not due where the defendant commits the second offense prior to the start of the defendant's actual incarceration. State v. Hall, 206 N.J. Super. 547, 550-51 (App. Div. 1985) (denying credit where the defendant committed the second offense while on bail during the pendency of an appeal challenging the conviction for the first offense). 
14. Sentences in Foreign Jurisdictions. The gap-time provision does not apply to time served on a foreign sentence because the gap-time statute is directed at New Jersey sentencing authorities who have no jurisdiction to aggregate out-of-state sentences. State v. Carreker, 172 N.J. 100, 114 (2002). Further, the Interstate Agreement on Detainers protects defendants serving out-of-state sentences from prosecutorial delay. Ibid. 
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15. Young Adult Offender. When a young adult offender is sentenced to an indeterminate term pursuant to N.J.S.A. 2C:43-5, gap-time credit will reduce the maximum length of the aggregate indeterminate term. Mitnaul v. N.J. Parole Bd., 280 N.J. Super. 164, 166 (App. Div. 1995). 
16. Credits Determined by the Court. As with other types of sentencing credits, gap-time credits must be awarded by the court at sentencing. The Parole Board is not responsible for awarding these credits; it computes the parole eligibility date on the basis of the reduced aggregate sentence. Booker v. N.J. State Parole Bd., 136 N.J. 257, 265-66 (1994). 
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       XVII.  MOTION TO CHANGE A SENTENCE
Within sixty days of the judgment of conviction the defendant may request the sentencing court to change the sentence imposed. After the sixty-day period has expired, the defendant may file a motion to change a sentence for limited reasons. Section A discusses court rules regarding a motion to change a sentence, and section B discusses relevant case law. 
A. Motion to Change a Sentence: Court Rules 
1. Court Rule Authorizing a Motion to Change a Sentence Within Sixty Days. Rule 3:21-10(a) provides that "a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction. The court may reduce or change a sentence, either on motion or on its own initiative, by order entered within 75 days from the date of the judgment of conviction and not thereafter." 
2. Court Rule Authorizing a Motion to Change a Sentence at Any Time. Rule 3:21-10(b) provides that the trial court may hear a motion at any time to: 
(1) Permit entry of an incarcerated defendant "into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse"; 
(2) Permit the release of an incarcerated defendant "because of illness or infirmity of the defendant"; 
(3) Change a sentence "for good cause shown upon the joint application of the defendant and prosecuting attorney"; 
(4) Change a sentence "as authorized by the Code of Criminal Justice"; 
     (5)  Correct a sentence "not authorized by law";
(6) Permit an incarcerated defendant to enter the Intensive Supervision Program (N.J.S.A. 2C:43-11); or 
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(7) Change or reduce "a sentence when a prior conviction has been reversed on appeal or vacated by collateral attack." 
Hearing Generally Not Required. The court need not hold a hearing on a motion to change a sentence pursuant to Rule 3:21-10(b) unless the "interest of justice" requires otherwise. R. 3:21-10(c). If the court holds a hearing, the defendant need not be present. R. 3:16(b). 
3. Pending Appeal Does Not Preclude a Motion to Change a Sentence. Upon notice to the Appellate Division, the trial court may consider a motion to change a sentence while an appeal is pending. R. 3:21-10(d). 
4. Sentence Changes Must Be Placed on the Record. "All changes of sentence shall be made in open court upon notice to the defendant and the prosecutor. An appropriate order setting forth the revised sentence and specifying the change made and the reasons therefor shall be entered on the record." R. 3:21- 10(c). 
B. Motion to Change a Sentence: Case Law 
1. Double Jeopardy. Rule 3:21-10(b) authorizes a change in sentence "at any time." The Rule does not negate, however, the double jeopardy prohibition against adding a punitive term to a sentence that the defendant has completed. State v. Schubert, 212 N.J. 295, 309-10 (2012). 
2. Transfer to a Drug or Alcohol Treatment Program. To obtain transfer to a treatment program pursuant to Rule 3:21-10(b)(1), the defendant must establish present addiction. State v. Davis, 68 N.J. 69, 85-86 (1975). The court must then determine whether the purposes of a custodial sentence "outweigh the interests sought to be served by transfer to" a treatment program. Ibid. Accord State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976); State v. Williams, 139 N.J. Super. 290, 299 (App. Div. 1976), aff'd o.b., 75 N.J. 1 (1977). The court should consider: "(a) the involved crime, its seriousness and attendant circumstances; (b) defendant's prior record -- criminal and addictive; (c) potential threat posed to society by defendant's release; (d) the bona fides of the application; (e) the likelihood or probability of successful treatment; (f) prior treatment record, and (g) the failure or success of prior 
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treatment." State v. Williams, 139 N.J. Super. 290, 299-300 (App. Div. 1976), aff'd o.b., 75 N.J. 1 (1977). 
(a) Minimum Terms and Transfer to a Treatment Program. 
The court may not consider a request to transfer to a drug or alcohol treatment facility prior to the expiration of a parole ineligibility term mandated by statute, but the court may consider an application prior to the expiration of a parole ineligibility term that was imposed at the sentencing court's discretion. State v. Brown, 384 N.J. Super. 191, 194-96 (App. Div. 2006); State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). 
(b) Violation of Terms of a Treatment Program. If after transfer to a noncustodial treatment center the defendant violates a term of treatment, the court may reinstate the original sentence. State v. Williams, 299 N.J. Super. 264, 270 (App. Div. 1997). 
3. Changed Circumstances. To obtain a transfer to a drug or alcohol treatment program pursuant to Rule 3:21-10(b)(1), or to obtain a change in sentence due to illness pursuant to Rule 3:21-10(b)(2), the defendant must show that there has been a change in circumstances since the date of sentencing. State v. Kent, 212 N.J. Super. 635, 641 (App. Div.), certif. denied, 107 N.J. 65 (1986). 
4. Change Authorized by the Code. Rule 3:21-10(b)(4), which allows a change of sentence "as authorized by the Code," does not apply where the Legislature creates a new offense with a more lenient sentence provision than the one the defendant was sentenced under. State v. James, 343 N.J. Super. 143, 147-48 (App. Div. 2001). 
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      XVIII.  DIRECT APPEAL BY A DEFENDANT
A criminal defendant may challenge the sentence on direct appeal (see sections A and D). Claims fall into two general categories: those that challenge the sentence as excessive and those that challenge the sentence as illegal (see sections B and C). If the defendant succeeds on appeal, principles of double jeopardy prohibit a court from imposing a harsher sentence on remand than the court initially imposed, unless the defendant had no expectation of finality in the initial sentence (see section E). 
A. Direct Appeal by a Defendant of a Sentence: Court Rules and Statutory Provisions 
1. Court Rule Authorizing Direct Appeal by a Criminal Defendant. Rule 2:3-2 provides: "In any criminal action, any defendant, the defendant's legal representative, or other person aggrieved by the final judgment of conviction entered by the Superior Court, including a judgment imposing a suspended sentence, . . . may appeal or, where appropriate, seek leave to appeal, to the appropriate appellate court." 
2. Statutory Authority for the Appellate Division to Hear Appeals. N.J.S.A. 2C:44-7 vests the appellate courts with authority to review "[a]ny action taken by the court in imposing sentence." "The [appellate] court shall specifically have the authority to review findings of fact by the sentencing court in support of its finding of aggravating and mitigating circumstances and to modify the defendant's sentence upon his [or her] application where such findings are not fairly supported on the record." N.J.S.A. 2C:44-7. 
3. Court Rule Regarding Remand and Original Jurisdiction. 
Rule 2:10-3 provides: "If a judgment of conviction is reversed for error in or for excessiveness or leniency of the sentence, the appellate court may impose such sentence as should have been imposed or may remand the matter to the trial court for proper sentencing." 
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B. Excessive Sentence Challenges: Case Law 
Excessive Sentence Challenges Described. An excessive sentence claim challenges the harshness of a sentence that is "within the range permitted by the verdict or plea." State v. Hess, 207 N.J. 123, 145 (2011). An excessive sentence challenge must be asserted on direct appeal; it will not be heard in a post- conviction relief petition. Ibid. 
C. Illegal Sentence Challenges: Case Law 
1. Illegal Sentence Challenges Described. "There are two categories of illegal sentences: (1) those that exceed the penalties authorized by statute for a particular offense and (2) those that are not in accordance with the law, or stated differently, those that include a disposition that is not authorized by our criminal code." State v. Schubert, 212 N.J. 295, 308 (2012) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)). Accord State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)). An illegal sentence may be corrected at any time. State v. Tavares, 286 N.J. Super. 610, 619 (App. Div.), certif. denied, 144 N.J. 376 (1996). A challenge that attacks the court's exercise of discretion does not fall within the illegal-sentence category and must be asserted on direct appeal. State v. Ellis, 346 N.J. Super. 583, 588 (App. Div.), aff'd o.b., 174 N.J. 535, 536 (2002). 
2. Time in Which to File an Illegal Sentence Challenge. A defendant may file a petition to correct an illegal sentence at any time before the defendant completes the sentence. R. 3:21- 10(b)(5); State v. Schubert, 212 N.J. 295, 313 (2012); State v. Crawford, 379 N.J. Super. 250, 257 (App. Div. 2005). 
3. Illegal Sentence May Not Be Ignored. "[A] reviewing court is not free to ignore an illegal sentence." State v. Moore, 377 N.J. Super. 445 (App. Div. 2005). "[S]o long as the issue of defendant's sentence is properly before the court, the court may correct an illegal sentence, even by increasing the term." State v. Kirk, 243 N.J. Super. 636, 643 (App. Div. 1990). Accord State v. Tavares, 286 N.J. Super. 610, 619 (App. Div.), certif. denied, 144 N.J. 376 (1996). 
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4. Merger Is a Matter of Legality. Failure to merge offenses results in an illegal sentence. State v. Romero, 191 N.J. 59, 80 (2007). 
5. Legality of Sentence Based on an Unclear Verdict. Where the facts support a conviction for a third and second degree offense, and the verdict does not state which one the jury convicted the defendant of violating, it is a question of legality whether the court erred in imposing sentence for a second degree crime. State v. Eure, 304 N.J. Super. 469, 473 (App. Div.), certif. denied, 152 N.J. 193 (1997). 
6. Illegal Sentence Based on Considerations Beyond the Code. 
A sentence based on a fact unrelated to the Code's sentencing criteria is illegal. State v. Wilson, 206 N.J. Super. 182, 184 (App. Div. 1985) (finding illegal a sentence based "entirely" on the defendant's failure to appear at the sentencing hearing). 
7. Failure to Provide a Rationale Does Not Make the Term Illegal. The court's failure to provide its rationale for a sentence does not render the sentence illegal. State v. Acevedo, 205 N.J. 40, 45-47 (2011). 
8. A Plea Agreement May Not Provide for an Illegal Sentence. 
The court may not enforce a plea agreement that results in an illegal sentence. State v. Manzie, 335 N.J. Super. 267, 278 (App. Div. 2000); State v. Nemeth, 214 N.J. Super. 324, 327 (App. Div. 1986). 
9. Lack of Factual Basis for a Plea Does Not Make a Sentence Illegal. "As long as a guilty plea is knowing and voluntary, . . . a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his [or her] own." State v. Mitchell, 126 N.J. 565, 577-78 (1992). 
10. Failure to Advise a Sex Offender of a Parole Consequence Does Not Render a Sentence Illegal. Failure to inform a sex offender of the parole consequences of a sentence to the Adult 
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Diagnostic and Treatment Center does not result in an illegal sentence. State v. Lark, 117 N.J. 331, 341 (1989). 
11. An Indeterminate Term Is Generally Illegal. "Except for young adult offenders, who may be sentenced to an indeterminate term, N.J.S.A. 2C:43-5, and except for sentences of life imprisonment, Chapters 43 and 44 [of Title 2C] require that a specific term of years be fixed for custodial sentences." State v. Dittmar, 188 N.J. Super. 364, 366-67 (App. Div. 1982). Thus, a sentence that requires sex offender treatment at the Adult Diagnostic and Treatment Center "for an indeterminate term not to exceed ten years" is an illegal sentence. Id. at 365. 
12. Lawful and Unlawful Basis for a Sentence. If the court imposed an extended term on two alternative grounds, the extended term will not be vacated on appeal so long as one basis was lawful. State v. Guzman, 313 N.J. Super. 363, 384-85 (App. Div.), certif. denied, 156 N.J. 424 (1998) (affirming an extended term based on the court's discretionary authority, even though the sentencing court erred in finding that the Graves Act mandated an extended term). 
13. Order in Which Sentences Must Be Served Is Not a Matter of Legality. "Although specification that the less restrictive sentence be served prior to the more restrictive sentence is not illegal, it may, on a particular occasion, constitute an abuse of discretion." State v. Ellis, 346 N.J. Super. 583, 597 (App. Div.), aff'd o.b., 174 N.J. 535, 536 (2002) (noting that "[i]n a very real sense, directing that a less restrictive sentence be served prior to the more restrictive sentence is akin to the discretionary imposition of an additional period of parole ineligibility"). 
14. Consecutive Term Challenges Do Not Relate to Legality of the Sentence. The claim that consecutive sentences are inconsistent with the Yarbough guidelines is a challenge to the court's exercise of discretion, not to the legality of the sentences. State v. Ellis, 346 N.J. Super. 583, 596 (App. Div.), aff'd o.b., 174 N.J. 535, 536 (2002). 
15. Sentence for a Violation of Probation May Be Illegal. A sentence that does not comply with the requirements set forth in Baylass and Molina, is a sentence not authorized by law. State v. Ervin, 241 N.J. Super. 458, 474-75 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990). See State v. Molina, 114 N.J. 181, 182-83 (1989), and State v. Baylass, 114 N.J. 169, 170-71 (1989) 
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(holding that when resentencing after a violation of probation (VOP), the court may not consider the VOP as an aggravating factor, but rather, must assess how the VOP affects the weight accorded to the mitigating factors identified at the initial sentencing hearing). 
16. Denial of Gap-Time Credits Renders a Sentence Illegal. 
Challenges to gap-time credits "pertain to the legality of the sentence imposed." State v. Shabazz, 263 N.J. Super. 246, 251 (App. Div.), certif. denied, 133 N.J. 444 (1993). 
17. Conflict of Interest Is Not a Matter of Sentence Legality. 
"[A] potential conflict of interest by a defense attorney does not affect the legality of a sentence." State v. Murray, 162 N.J. 240, 243 (2000). 
18. Creation of a New Offense Does Not Render Illegal the Sentence Imposed. Where the Legislature creates a new offense similar to the one that the defendant violated, but with a more lenient sentence, the defendant's harsher sentence is not rendered illegal. State v. James, 343 N.J. Super. 143, 147-48 (App. Div. 2001). 
19. Enhanced DWI Sentence Based on a Prior Uncounseled Guilty Plea Is Erroneous, But Not Illegal. Under State constitutional law, and "[i]n the context of repeat DWI offenses, . . . the enhanced administrative penalties and fines may constitutionally be imposed but . . . the actual period of incarceration imposed may not exceed that for any counseled DWI convictions." State v. Hrycak, 184 N.J. 351, 362 (2005) (quoting and reaffirming State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990); State v. Thomas, 401 N.J. Super. 180, 184 (Law Div. 2007). An enhanced jail term based on an uncounseled prior conviction is not an illegal sentence, however. State v. Bringhurst, 401 N.J. Super. 421, 431 (App. Div. 2008). 
20. A Sentence Is Illegal if Based on an Erroneous Predicate Finding. Where the court errs in imposing a sentence that does not comply with the statutory mandates for a repeat DWI offender, a later court sentencing on a subsequent drunk driving offense must consider the sentence that the prior court should have imposed, not the erroneous sentence that the court actually imposed. State v. Nicolai, 287 N.J. Super. 528, 531-32 (App. Div. 1996). To find otherwise would result in another illegal sentence. Ibid. 
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21. Cruel and Unusual Punishment. The Eighth Amendment of the United States Constitution circumscribes the criminal process in three ways: "it limits the kind of punishment that may be imposed on those convicted of crimes, . . . proscribes punishment that is grossly disproportionate to the severity of the crime," and "imposes substantive limits on what may be made criminal and punished as such." Ingraham v. Wright, 430 U.S. 651, 667, 97 S. Ct. 1401, 1410, 51 L. Ed. 2d 711, 727-28 (1977). 
22. Cruel and Unusual Punishment, Federal Gross Disproportionality Test. In determining whether a sentence for a term of years violates the Eighth Amendment, the United States Supreme Court has "not established a clear or consistent path for courts to follow." Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144, 155 (2003). However, the one governing legal principle has been that a "gross disproportionality" standard applies to such a sentence. 538 U.S. at 72, 123 S. Ct. at 1173, 155 L. Ed. 2d at 156. But see Harmelin v. Michigan, 501 U.S. 957, 965, 111 S. Ct. 2680, 2686, 115 L. Ed. 2d 836, 846 (1991) (Scalia, J., with Rehnquist, C.J., joining) (stating that the Eighth Amendment contains no proportionality guarantee). 
Factors Relating to Gross Disproportionality. The Court has "exhibit[ed] a lack of clarity regarding what factors may indicate gross disproportionality." Lockyer v. Andrade, 538 U.S. at 72, 123 S. Ct. at 1173, 155 L. Ed. 2d at 156. In Solem v. Helm, 463 U.S. 277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637, 649-50 (1983), the Court proposed a three-prong analysis that requires a court to compare: (1) the gravity of the offense committed to the sentence imposed; (2) the sentence imposed to those imposed for similar offenses in the same jurisdiction; and (3) the sentence imposed to those imposed for similar offenses in other jurisdictions. But see Harmelin v. Michigan, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at 871-72 (Kennedy, J., with O'Connor, J., and Souter, J.J., joining) (stating that only the second and third Solem factors need be applied, and only in the rare case when there may be a gross disproportionality between the crime committed and the sentence imposed); Ewing v. California, 538 U.S. 11, 23-24, 123 S. Ct. 1179, 1186-87, 155 L. Ed. 2d 108, 119 (2003) (plurality opinion) (applying the proportionality principles distilled in Justice Kennedy's concurrence in 
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Harmelin to a sentence imposed under a state's "Three Strikes" law). 
24. Cruel and Unusual Punishment, New Jersey Three-Part Test. 
New Jersey courts consider the following three factors in assessing a claim of cruel and unusual punishment: "first, whether the punishment conforms with contemporary standards of decency; second, whether the punishment is grossly disproportionate to the offense; and third, whether the punishment goes beyond what is necessary to accomplish any legitimate penological objective." State v. Johnson, 166 N.J. 523, 548 (2001) (citing State v. Maldonado, 137 N.J. 536, 556-57 (1994)). 
D. Standards Relating to Direct Appeal of a Sentence: Case Law 
1. Standard of Review. In reviewing a sentence, the appellate court must make sure the lower court followed the sentencing guidelines and made findings consistent with the evidence. State v. Roth, 95 N.J. 334, 363-65 (1984). The reviewing court should defer to the sentencing court's factual findings and should not "second-guess" them. State v. Case, 220 N.J. 49, 65 (2014); State v. Gerstofer, 191 N.J. Super. 542, 545 (App. Div. 1983) (holding that the appellate court defers to the trial court's findings of fact regardless of which party files the appeal), certif. denied, 96 N.J. 310 (1984). If the sentencing court "follow[ed] the Code and the basic precepts that channel sentencing discretion," the reviewing court should affirm the sentence, so long as the sentence does not "shock the judicial conscience." State v. Case, 220 N.J. 49, 65 (2014). Accord State v. Lawless, 214 N.J. 594, 606 (2013); State v. Cassady, 198 N.J. 165, 180 (2009); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Roth, 95 N.J. 334, 363-65 (1984). 
2. Aggregate Term. A reviewing court may find that while the sentence on each count standing alone was justified, the aggregate term of incarceration shocks the judicial conscience and requires a reversal. State v. Candelaria, 311 N.J. Super. 437, 454-55 (App. Div.), certif. denied, 155 N.J. 587 (1998) (finding that an extended term of life imprisonment with a twenty-five-year parole disqualifier and six consecutive terms was excessive in the aggregate). 
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3. Real-Time Consequences and Parole Ineligibility. In reviewing a sentence, the court should consider the real-time consequence of a parole disqualifier. State v. Lee, 411 N.J. Super. 349, 351 (App. Div. 2010). 
4. Original Jurisdiction. The appellate court's jurisdiction to review sentences includes the power to make new findings of fact, to reach independent determinations of the facts, and to supplement the record on appeal. State v. Jarbath, 114 N.J. 394, 412 (1989); R. 2:10-3. However, the court should "frugally" exercise this power and must explain its reason for doing so and its basis for the newly imposed sentence. State v. Jarbath, 114 N.J. 394, 412 (1989). 
5. Remand Is Preferred. "[T]he exercise of appellate original jurisdiction over sentencing should not occur regularly or routinely; . . . a remand to the trial court for resentencing is strongly to be preferred." State v. Jarbath, 114 N.J. 394, 411 (1989). Accord State v. Thomas, 195 N.J. 431, 437 (2008); State v. Abrams, 256 N.J. Super. 390, 403-04 (App. Div.), certif. denied, 130 N.J. 395 (1992). When "a remand will work an injustice by continuing" the defendant's incarceration, then it is appropriate for an appellate court to exercise original jurisdiction and resentence the defendant. State v. L.V., 410 N.J. Super. 90, 113 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010). 
6. Absence of a Verbatim Record. The absence of a verbatim sentencing transcript does not, by itself, prohibit meaningful appellate review or require a remand for reconstruction of the record. State v. Vasquez, 265 N.J. Super. 528, 561 (App. Div.), certif. denied, 134 N.J. 480 (1993). 
7. Challenge to the Factual Basis of a Plea on Direct Appeal. 
"Challenges to the sufficiency of the factual basis for a guilty plea are most commonly brought by way of a motion to the trial court to withdraw that plea." State v. Urbina, 221 N.J. 509, 527 (2015)However, "a defendant may also challenge the sufficiency of the factual basis for his guilty plea on direct appeal." Id. at 527-28. 
8. Rejected Pleas Are Irrelevant in Sentencing. "[T]he pre- trial plea proposal offered to, and rejected by, [a] defendant does not impugn the post-trial sentences. Rejected plea offers may not be considered as a factor in determining whether a 
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sentence is excessive." State v. Pennington, 154 N.J. 344, 362- 63 (1998). 
9.   Appeal by a Co-Defendant.
(a) The Law-of-the-Case Doctrine. Where a co-defendant files a separate appeal first, the law-of-the-case doctrine does not preclude the appellate panel from hearing the second appeal. State v. K.P.S., 221 N.J. 266, 270 (2015). The doctrine "was not intended to deny a defendant the opportunity to be heard on his separate appeal, even if the co-defendant unsuccessfully raised the same issue on the same record." Ibid. 
(b) Real-Time Consequences and Disparity Claim. In considering a co-defendant's claim that the court imposed disparate sentences, the reviewing court must consider the real-time consequences of the sentences. State v. Bessix, 309 N.J. Super. 126, 130-31 (App. Div. 1998); State v. Salentre, 275 N.J. Super. 410, 425 (App. Div.), certif. denied, 138 N.J. 269 (1994). 
(c) Unequal Sentences Among Co-Defendants. When a comparison of co-defendant's sentences reveals "grievous inequities," the greater sentence may be deemed excessive. State v. Roach, 167 N.J. 565, 570 (2001) (Roach II); State v. Hicks, 54 N.J. 390, 391-92 (1969). A disparate sentence based solely on the reason that the defendants did not deserve similar sentences, even though the defendants were similar for sentencing purposes, is insufficient to justify disparate terms. State v. Roach, 146 N.J. 208, 232-33, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). 
(d) Cooperation of One Defendant. A co-defendant's cooperation with law enforcement may explain a sentencing disparity. State v. Williams, 317 N.J. Super. 149, 159 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999); State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div.), certif. denied, 111 N.J. 589 (1988). 
10. Conditional Plea. When a defendant enters a guilty plea and intends to appeal an issue, other than a search and seizure issue, the defendant must enter a conditional plea with the court's approval and consent of the prosecutor. State v. Benjamin, 442 N.J. Super. 258, 263 (App. Div. 2015) (explaining 
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that "[o]rdinarily, the failure to enter a conditional plea would bar appellate review of other than search and seizure issues"), affirmed as modified, ___ N.J. ___ (2017). If the defendant failed to enter a conditional plea, the court may hear the appeal to avoid an injustice. Id. at 263-64. 
E. Double Jeopardy Concerns on Remand: Case Law 
1. Double Jeopardy General Rule. "The double jeopardy provisions of both the United States and New Jersey Constitutions protect against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." State v. Eigenmann, 280 N.J. Super. 331, 336-37 (App. Div. 1995); United States v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340 (1980). See also N.J.S.A. 2C:1-9 to -12. For purposes of sentencing, double jeopardy generally "attaches once a defendant begins to serve a prison term or the sentence is partially executed." State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005), (referring to State v. Ryan, 86 N.J. 1 (1981), remanded on other grounds, 188 N.J. 349 (2006)). 
2. No Expectation of Finality Rule. Double jeopardy does not prohibit a court from imposing a harsher sentence on remand when the defendant did not have an expectation of finality in the sentence originally imposed. State v. Roth, 95 N.J. 334, 344 (1984) (adopting the test in United States v. DiFrancesco, 449 U.S. 117, 133, 101 S. Ct. 426, 435, 66 L. Ed. 2d 328, 343 (1980)). Accord State v. Sanders, 107 N.J. 609, 18-20 (1987); State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005), remanded on other grounds, 188 N.J. 349 (2006). 
3. Examples of No Expectation of Finality. The following cases discuss situations in which the defendant does not have an expectation of finality in the sentence: 
(a) Appeal of Conviction and Sentence. "[A] defendant who appeals his substantive conviction along with the corresponding sentence has no legitimate expectation of finality in either the underlying conviction or the corresponding sentence." State v. Haliski, 140 N.J. 1, 21 (1995). 
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(b) State's Right to Appeal. A defendant cannot expect a sentence to be final when pronounced if the State has a statutory right to appeal the sentence, as in the case of a term imposed pursuant to N.J.S.A. 2C:44-1(f)(2) (downgrading and lenient sentences). State v. Sanders, 107 N.J. 609, 619 (1987). If the State succeeds on appeal of a downgraded sentence, the court on remand may impose a sentence one degree higher than originally imposed without offending double jeopardy principles. Ibid. 
(c) Illegal Sentence. "An illegal sentence that has not been completely served may be corrected at any time without impinging upon double-jeopardy principles." State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). A sentence that does not include a parole ineligibility term mandated by statute is an illegal sentence. Ibid. (finding error in a Graves Act sentence that did not include a mandatory parole ineligibility term). Accord State v. Robinson, 253 N.J. Super. 346, 358-59 (App. Div.), certif. denied, 130 N.J. 6 (1992). 
(d) State Appeal of a Judgment Notwithstanding the Verdict. A defendant has no expectation of finality in the sentence imposed when the State appeals the entry of judgment notwithstanding the verdict pursuant to Rule 2:3-1(b)(3). State v. Cetnar, 341 N.J. Super. 257, 265 (App. Div.), certif. denied, 170 N.J. 89 (2001). 
4. Harsher Sentence on Remand. The court may not impose a "substantially harsher" sentence on remand if the increased sentence is not required by law or is not supported by "any evidence of intervening conduct or prior oversight to justify the new sentence." State v. Heisler, 192 N.J. Super. 586, 592- 93 (App. Div. 1984). Accord State v. Pindale, 279 N.J. Super. 123, 128-30 (App. Div.) (discussing North Carolina v. Pearce, 395 U.S. 711, 723, 89 S. Ct. 2072, 2079, 23 L. Ed. 2d 656, 668 (1969)), certif. denied, 142 N.J. 449 (1995)). To hold otherwise would effectively penalize a defendant for successfully challenging an illegal sentence. State v. Heisler, 192 N.J. Super. 586, 593 (App. Div. 1984). See also State v. Eigenmann, 280 N.J. Super. 331, 341 (App. Div. 1995) (holding that the court could not increase the part of a sentence based on a lawful, though mistaken, declaration that the defendant was a young adult offender, as that part of the sentence was not illegal). The court must specifically explain its rationale for 
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imposing a harsher sentence. State v. Pindale, 279 N.J. Super. 123, 129-30 (App. Div.), certif. denied, 142 N.J. 449 (1995). 
5.  Credits Due After a Successful Appel.
Prior Service Credit. When a court reverses a conviction for which the defendant endured imprisonment, the Fifth Amendment prohibition against double jeopardy requires a court to award the defendant day-for-day credit against the new sentence for the time served on the reversed conviction. North Carolina v. Pearce, 395 U.S. 711, 718- 19, 89 S. Ct. 2072, 2077, 23 L. Ed. 2d 656, 665-66 (1969). This is commonly called prior service credit. State v. Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). Like jail credit, prior service credit is subtracted from the front end of a sentence. Id. at 355. Denial of prior service credit would effectively and erroneously penalize a defendant for exercising the State constitutional right to appeal. State v. DeRosa, 332 N.J. Super. 426, 432 (App. Div. 2000); Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 72 (App. Div. 1998). 
Jail Credits. If the defendant remained incarcerated after successfully challenging a conviction, and was not serving time for any other valid conviction, then the defendant must be awarded jail credit for time served between reversal of the conviction and imposition of a new sentence. State v. Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). See Chapter XVI for further discuss on jail credits. 
Gap-Time Credits. If the defendant served time on a successfully challenged conviction, and during that term of incarceration had charges pending for another offense (second offense) that was committed prior to imposition of the sentence that was later reversed, then the defendant would receive against the sentence for the second offense gap-time credit for time served on the reversed conviction. State v. Rippy, 431 N.J. Super. 338, 351 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). See Chapter XVI for further discuss on gap-time credits. 
6.
Ineligibility. 
Because "the basic sentencing issue is always the real time defendant must serve," on resentencing the court 
Restructuring the Sentence on Remand and Parole 
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may not restructure a sentence to impose a greater period of parole ineligibility than it imposed in the initial sentence. State v. Cooper, 402 N.J. Super. 110, 116-17 (App. Div. 2008) (quoting State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000), certif. denied, 167 N.J. 633, 772 (2001)). See also State v. Towey (II), 244 N.J. Super. 582, 598 (App. Div.) (explaining that where a defendant successfully challenges only the excessiveness of a parole disqualifier, the court on remand may not increase the base term), certif. denied, 122 N.J. 159 (1990). 
7. Unmerged Offenses and the Aggregate Term. Where an appellate court finds that the sentencing court erroneously merged offenses, the court on remand may impose consecutive terms on the unmerged convictions, so long as the new sentence, in the aggregate, does not exceed the original aggregate term. State v. Crouch, 225 N.J. Super. 100, 107-08 (App. Div. 1988). But see State v. Loftin, 287 N.J. Super. 76, 113 (App. Div.) (explaining that the defendant might face a longer aggregate term on remand because the sentencing court had erroneously merged a first degree robbery conviction into a murder conviction, and on remand, the court had to impose sentence for the robbery conviction), certif. denied, 144 N.J. 175 (1996). 
8. Merger and Reversal of the Greater Offense. "Because merger does not extinguish the merged offense, it follows that if the conviction on the greater offense is reversed and defendant is not retried on that offense, the State may request the trial court to unmerge the prior conviction of defendant on the lesser offense and proceed to sentence thereon." State v. Becheam, 399 N.J. Super. 268, 275 (Law Div. 2007). Accord State v. Harrington, 310 N.J. Super. 272, 280-81 (App. Div.), certif. denied, 156 N.J. 387 (1998). This principle also applies where the State retries the defendant on the greater offense and the jury acquits the defendant of that offense. State v. Becheam, 399 N.J. Super. 268, 275-76 (Law Div. 2007). 
9. Considerations at Resentencing. Unless the remand order specifies otherwise, the trial court should consider the defendant as he or she stands on the day of resentencing. State v. Jaffe, 220 N.J. 114, 116 (2014); State v. Randolph, 210 N.J. 330, 354 (2012). Thus, the court may consider an updated presentence report, a current institutional report if the defendant is in custody, and any changed circumstances that occurred between the time of the initial sentencing and the resentencing. State v. Randolph, 210 N.J. 330, 354 (2012); 
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State v. Tavares, 286 N.J. Super. 610, 616 (App. Div.), certif. denied, 144 N.J. 376 (1996). 
10. A Completed Sentence May Not Be Increased. The court may not add a punitive term to a sentence that the defendant has completed, even if the punitive term was mandated by statute and absence of it rendered the sentence illegal. State v. Schubert, 212 N.J. 295, 311-12 (2012) (holding that the court could not correct a sentence that did not include community supervision for life by imposing that term on a defendant who had completed his sentence, even though the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4, required that term be included in a sentence). 
11. Restitution. A restitution award may be increased on resentencing without offending double jeopardy principles. State v. Rhoda, 206 N.J. Super. 584, 590 (App. Div.), certif. denied, 105 N.J. 524 (1986). 
12. Discrepancy Between the Sentencing Transcript and Judgment of Conviction. Where a defendant challenges a judgment of conviction as including a period of parole ineligibility that the sentencing court did not verbally impose at the sentencing hearing, the matter may be remanded without offending principles of double jeopardy to correct the judgment if "the record sufficiently indicates an expression of" the sentencing court's "intent to have imposed a discretionary parole ineligibility term at the time of sentencing." State v. Womack, 206 N.J. Super. 564, 571 (App. Div. 1985), certif. denied, 103 N.J. 482 (1986). 
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   XIX.  APPEAL BY THE STATE IN CRIMINAL CASES
Double jeopardy principles restrict the State's ability to challenge a defendant's sentence (see sections C and D). The State may file an appeal of a sentence in limited situations set forth in court rules and statutes (see sections A and B). If the State successfully challenges a sentence, double jeopardy principles will likely prohibit a court from imposing a harsher sentence on remand than the court initially imposed, unless the defendant had no expectation of finality in the initial sentence (see section D). 
A. Appeal by the State: Court Rules 
1. Court Rule Regarding State Appeals in a Criminal Case. 
Rule 2:3-1(b) authorizes the State to file an appeal "to the appropriate appellate court from" the following: 
(1) A judgment "dismiss[ing] an indictment, accusation or complaint, where not precluded by the constitution of the United States or of New Jersey"; 
(2) A pretrial order entered in accordance with Rule 3:5 (search warrants); 
(3) A judgment of acquittal pursuant to Rule 3:18-2 following a guilty verdict; 
(4) "[A] judgment in a post-conviction proceeding collaterally attacking a conviction or sentence"; 
(5) "[A]n interlocutory order entered before, during or after trial"; or 
     (6)  "[A]s otherwise provided by law."
2. Court Rule Authorizing Appeals to the Supreme Court. Rule 2:3-1(a) provides that the State may appeal "to the Supreme Court from a final judgment or from an order of the Appellate Division, pursuant to Rule 2:2-2 (b) [appeals the Supreme Court from interlocutory orders] or 2:2-3 [appeals to the Appellate Division from final judgments]." 
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B. Appeal by the State: Statutory Provisions
1. Statutes Authorizing Appeal by the State. The following 
statutes grant the State permission to appeal a sentence.
(a) Booby Traps in the Manufacturing or Distribution of Drugs. N.J.S.A. 2C:35-4.1(e) provides that if the court does not require the sentence for booby traps in the manufacturing or distribution of drugs to be served consecutive to a sentence for any drug offense in Chapter 35, or a conspiracy or attempt to commit an offense under Chapter 35, then the State may appeal the sentence within ten days. 
(b) Manufacturing, Distributing or Dispensing a Controlled Dangerous Substance on or Near School Property. N.J.S.A. 2C:35-7(b)(2)(b) provides that within ten days the State may appeal the sentence for manufacturing, distributing or dispensing drugs on school property if the court did not impose a period of parole ineligibility pursuant to N.J.S.A. 2C:35-7(b)(1). See Chapter XIV on drug offender sentencing for further discussion. 
(c) Violation of Special Probation in a Drug Case, or Drug Court. Where the defendant commits a second or subsequent violation of special probation, the prosecutor may appeal the court's decision to (i) continue special probation, N.J.S.A. 2C:35-14(f)(2); or (ii) impose a brief period of imprisonment followed by continued special probation, N.J.S.A. 2C:35-14(g). See Chapter XIV on drug offender sentencing for further discussion. 
(d) Non-Residential Treatment for Certain Drug Offenders. 
N.J.S.A. 2C:35-14(j) provides that if the court finds that a defendant qualifies for residential drug treatment, the court may impose a term of non-residential treatment under certain circumstances. If the prosecutor objects to the sentence, the sentence shall not become final for ten days to permit the State to file an appeal. Ibid. See Chapter XIV on drug offender sentencing for further discussion. 
(e) Mandatory Special Probation for Certain Drug Offenders. If the court imposes a sentence of regular probation instead of special probation on certain drug 
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dependent defendants, the sentence shall not be final for ten days to allow the prosecutor time to file an appeal. N.J.S.A. 2C:35-14.2(d). See Chapter XIV on drug offender sentencing for further discussion. 
(f) Public Officers Convicted of Certain Crimes. N.J.S.A. 2C:43-6.5(c)(3) allows the State ten days to appeal a sentence imposed on certain public officers if the court did not include a period of parole ineligibility or if the court imposed a reduced period of parole ineligibility pursuant to N.J.S.A. 2C:43-6.5(c)(1) or (2). 
(g) Downgraded or Lenient Sentence for a First or Second Degree Crime. Pursuant to N.J.S.A. 2C:44-1(f)(2), the State may challenge a sentence for a first or second degree crime if the court imposed a term appropriate for one degree lower than the conviction, or if it imposed a noncustodial or probationary sentence. The State has ten days to file the appeal. N.J.S.A. 2C:44-1(f)(2). 
Stay Pending Appeal. Unless the defendant elects to begin a downgraded or lenient sentence imposed pursuant to N.J.S.A. 2C:44-1(f)(2) while the State's appeal is pending, "execution of sentence shall be stayed," and the court shall set bail. R. 2:9-3(d). If the defendant waives the stay pending appeal, and on remand the court imposes a harsher sentence, the defendant may not challenge the new sentence on double jeopardy grounds. Ibid. 
C. Appeal by the State: Case Law 
1. Double Jeopardy. Double jeopardy principles restrict a State's ability to file an appeal in a criminal action. State v. Lefkowitz, 335 N.J. Super. 352, 357 (App. Div. 2000), certif. denied, 167 N.J. 637 (2001); State v. Veney, 327 N.J. Super. 458, 461 (App. Div. 2000). "[A]bsent explicit statutory authority, the State has no right to appeal a criminal sentence." State v. Veney, 327 N.J. Super. 458, 460 (App. Div. 2000). 
2. Deference to Factual Findings. The appellate court defers to the trial court's findings of fact in reviewing a sentence, regardless of which party files the appeal. State v. Gerstofer, 
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191 N.J. Super. 542, 545 (App. Div. 1983), certif. denied, 96 N.J. 310 (1984). 
3. Transfer to a Drug or Alcohol Treatment Program. The State may file an appeal challenging the trial court's grant of an application authorizing transfer from a custodial institution to a drug or alcohol treatment program pursuant to Rule 3:21- 10(b)(1). State v. Williams, 139 N.J. Super. 290, 296 (App. Div. 1976), aff'd o.b., 75 N.J. 1 (1977). 
4. Challenge to Jail Credits. "[T]he State may appeal an award of jail credits on the ground that they are not authorized by Rule 3:21-8." State v. Rippy, 431 N.J. Super. 338, 343 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). 
5. Mandatory Terms. The State may appeal a sentencing court's refusal to impose a Graves Act mandatory extended term based on a finding that the proof did not establish the requisite prior offenses. State v. Robinson, 253 N.J. Super. 346, 358-59 (App. Div.), certif. denied, 130 N.J. 6 (1992). 
6. Verdict on a Lesser Charge. Where a judge declines to accept a guilty verdict, and the jury re-deliberates and returns a verdict on a lesser charge, the State may not appeal the sentence imposed on the lesser charge. State v. Lefkowitz, 335 N.J. Super. 352, 358 (App. Div. 2000), certif. denied, 167 N.J. 637 (2001). Instructing the jury to continue deliberations did not equate to rejecting a verdict. Ibid. 
7. Transfer to a Drug or Alcohol Treatment Program. The State may file an appeal challenging the trial court's grant of an application authorizing transfer from a custodial institution to a drug or alcohol treatment program pursuant to Rule 3:21- 10(b)(1). State v. Williams, 139 N.J. Super. 290, 296 (App. Div. 1976), aff'd o.b., 75 N.J. 1 (1977). 
8. Lenient Sentence for a First or Second Degree Crime. 
Pursuant to N.J.S.A. 2C:44-1(f)(2), the State may appeal a sentence for a term one degree lower on a first or second degree offense. State v. Roth, 95 N.J. 334, 360 (1984). 
(a) Double Jeopardy. Until the ten-day period ends, the defendant has no expectation of finality in the sentence, and double jeopardy protections do not attach. State v. Ryan, 86 N.J. 1, 10, cert. denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981); State v. Johnson, 376 N.J. 
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Super. 163, 171-72 (App. Div.), certif. denied, 183 N.J. 592 (2005); State v. Evers, 368 N.J. Super. 159, 169 (App. Div. 2004). 
(b) Computing the Ten-Day Period. The ten-day period begins the day after sentence is pronounced. State v. Johnson, 376 N.J. Super. 163, 173 (App. Div.), certif. denied, 183 N.J. 592 (2005); R. 1:3-1; R. 3:21-4(i). "[F]ailure to perfect an appeal within the ten-day period will result in dismissal of the State's appeal." State v. Johnson, 376 N.J. Super. 163, 170 (App. Div.), certif. denied, 183 N.J. 592 (2005) (quoting State v. Sanders, 107 N.J. 609, 616 (1987)). 
(c) Noncustodial Term. Any sentence other than imprisonment satisfies the "noncustodial" aspect of N.J.S.A. 2C:44-1(f)(2), including suspended sentences and probation. State v. Cannon, 128 N.J. 546, 567 (1992). 
(d) Plea Bargain and the State's Silence. If pursuant to a plea agreement the State remains silent at sentencing and does not object to the court's imposing a noncustodial term on a conviction for a second degree crime, the State may not challenge the sentence on appeal. State v. Paterna, 195 N.J. Super. 124, 126 (App. Div. 1984). 
9. State May Challenge an Illegal Sentence. "[T]he State may appeal an illegal sentence without express authorization in the criminal code or rules of court." State v. Chambers, 377 N.J. Super. 365, 370 (App. Div. 2005) (quoting State v. Parolin, 339 N.J. Super. 10, 13-14 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223 (2002)). 
(a) Illegal Sentence Defined. "There are two categories of illegal sentences: (1) those that exceed the penalties authorized by statute for a particular offense and (2) those that are not in accordance with the law, or stated differently, those that include a disposition that is not authorized by our criminal code." State v. Schubert, 212 N.J. 295, 308 (2012) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)). Accord State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)). An illegal sentence may be corrected at any time prior to the completion of the sentence. State v. Tavares, 286 N.J. Super. 610, 619 (App. Div.), certif. denied, 144 N.J. 376 (1996). 
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(b) Illegal Sentence May Not Be Ignored. "[A] reviewing court is not free to ignore an illegal sentence." State v. Moore, 377 N.J. Super. 445 (App. Div. 2005). "[S]o long as the issue of defendant's sentence is properly before the court, the court may correct an illegal sentence, even by increasing the term." State v. Kirk, 243 N.J. Super. 636, 643 (App. Div. 1990). Accord State v. Tavares, 286 N.J. Super. 610, 619 (App. Div.), certif. denied, 144 N.J. 376 (1996). 
(c) Time in Which to File an Illegal Sentence Challenge. 
The State may file a petition to correct an illegal sentence at any time before the defendant completes the sentence. R. 3:21-10(b); State v. Schubert, 212 N.J. 295, 313 (2012); State v. Crawford, 379 N.J. Super. 250, 257 (App. Div. 2005). "While an 'illegal' sentence is 'correctable at any time,' the State has an obligation to move quickly when asserting an 'illegality' because the defendant has an expectation of finality of a sentence within the parameters of statutory limits (at least in the absence of some appeal or post-conviction proceeding pending on his or her application)." State v. Tavares, 286 N.J. Super. 610, 619 (App. Div.), certif. denied, 144 N.J. 376 (1996). 
D.  Double Jeopardy Concerns on Remand:  Case Law
1. Double Jeopardy General Rule. "The double jeopardy provisions of both the United States and New Jersey Constitutions protect against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." State v. Eigenmann, 280 N.J. Super. 331, 336-37 (App. Div. 1995); United States v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340 (1980). See also N.J.S.A. 2C:1-9 to -12. For purposes of sentencing, double jeopardy generally "attaches once a defendant begins to serve a prison term or the sentence is partially executed." State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005), (referring to State v. Ryan, 86 N.J. 1 (1981)), remanded on other grounds, 188 N.J. 349 (2006)). 
2. No Expectation of Finality Rule. Double jeopardy does not prohibit a court from imposing a harsher sentence on remand when 
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the defendant did not have an expectation of finality in the sentence originally imposed. State v. Roth, 95 N.J. 334, 344 (1984) (adopting the test set forth in United States v. DiFrancesco, 449 U.S. 117, 133, 101 S. Ct. 426, 435, 66 L. Ed. 2d 328, 343 (1980)). Accord State v. Sanders, 107 N.J. 609, 18- 20 (1987); State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005), remanded on other grounds, 188 N.J. 349 (2006). 
3. Examples of No Expectation of Finality. The following cases discuss situations in which the defendant does not have an expectation of finality in the sentence: 
(a) Appeal of Conviction and Sentence. "[A] defendant who appeals his substantive conviction along with the corresponding sentence has no legitimate expectation of finality in either the underlying conviction or the corresponding sentence." State v. Haliski, 140 N.J. 1, 21 (1995). 
(b) State's Right to Appeal. A defendant cannot expect a sentence to be final when pronounced if the State has a statutory right to appeal the sentence, as in the case of a term imposed pursuant to N.J.S.A. 2C:44-1(f)(2) (leniency in sentencing a first or second degree crime). State v. Sanders, 107 N.J. 609, 619 (1987). If the State succeeds on appeal, on remand the court may impose a sentence one degree higher than originally imposed without offending double jeopardy principles. Ibid. 
(c) Illegal Sentence. "An illegal sentence that has not been completely served may be corrected at any time without impinging upon double-jeopardy principles." State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). A sentence that does not include a parole ineligibility term mandated by statute is an illegal sentence. Ibid. (finding error in a Graves Act sentence without a mandatory parole ineligibility term). Accord State v. Robinson, 253 N.J. Super. 346, 358-59 (App. Div.), certif. denied, 130 N.J. 6 (1992). 
(d) State Appeal of a Judgment Notwithstanding the Verdict. A defendant has no expectation of finality in the sentence imposed when the State appeals the entry of judgment notwithstanding the verdict pursuant to Rule 2:3-1(b)(3). State v. Cetnar, 341 N.J. Super. 257, 265 (App. Div.), certif. denied, 170 N.J. 89 (2001). 
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4. Harsher Sentence on Remand. The court may not impose a "substantially harsher" sentence on remand if the increased sentence is not required by law or supported by "any evidence of intervening conduct or prior oversight to justify the new sentence." State v. Heisler, 192 N.J. Super. 586, 592-93 (App. Div. 1984). Accord State v. Pindale, 279 N.J. Super. 123, 128- 30 (App. Div.) (discussing North Carolina v. Pearce, 395 U.S. 711, 723, 89 S. Ct. 2072, 2079, 23 L. Ed. 2d 656, 668 (1969)), certif. denied, 142 N.J. 449 (1995). To hold otherwise would effectively penalize a defendant for successfully challenging an illegal sentence. State v. Heisler, 192 N.J. Super. 586, 593 (App. Div. 1984). See also State v. Eigenmann, 280 N.J. Super. 331, 341 (App. Div. 1995) (holding that the court could not increase the part of a sentence based on a lawful, though mistaken, declaration that the defendant was a young adult offender, as that part of the sentence was not illegal). The court must specifically explain its reasons for imposing a harsher sentence. State v. Pindale, 279 N.J. Super. 123, 129-30 (App. Div.), certif. denied, 142 N.J. 449 (1995). 
5. Restructuring the Sentence on Remand and Parole Ineligibility. Because "the basic sentencing issue is always the real time defendant must serve," on resentencing the court may not restructure a sentence to impose a greater period of parole ineligibility than it imposed in the initial sentencing. State v. Cooper, 402 N.J. Super. 110, 116-17 (App. Div. 2008) (quoting State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000), certif. denied, 167 N.J. 633, 772 (2001)). See also State v. Towey (II), 244 N.J. Super. 582, 598 (App. Div.) (explaining that where a defendant successfully challenges only the excessiveness of a parole disqualifier, the court on remand may not increase the base term), certif. denied, 122 N.J. 159 (1990). 
6. Restitution. A restitution award may be increased on resentencing after remand without offending double jeopardy principles. State v. Rhoda, 206 N.J. Super. 584, 590 (App. Div.), certif. denied, 105 N.J. 524 (1986). 
7. Unmerged Offenses and the Aggregate Term. In resentencing, the court may impose consecutive terms on "unmerged" convictions, so long as the new sentence, in the aggregate, does not exceed the original aggregate term. State v. Crouch, 225 N.J. Super. 100, 107-08 (App. Div. 1988). But see State v. Loftin, 287 N.J. Super. 76, 113 (App. Div.) (explaining that the 
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defendant might face a longer aggregate term on remand because the sentencing court erroneously merged a first degree robbery conviction into a murder conviction, and on remand, the court had to impose a sentence for the robbery conviction), certif. denied, 144 N.J. 175 (1996). 
8. Completed Sentence May Not Be Increased. The court may not add a punitive term to a sentence that the defendant has completed, even if the punitive term was mandated by statute and absence of it rendered the sentence illegal. State v. Schubert, 212 N.J. 295, 311-12 (2012) (holding that the court could not correct a sentence that did not include community supervision for life by imposing that term on a defendant who had completed his sentence, even though the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4, required that term be included in the sentence). 
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           XX.  POST-CONVICTION RELIEF
In limited situations, and after exhausting direct appeals, a defendant may challenge his or her sentence by way of a petition for post-conviction relief (see sections A and B). 
A. Post-Conviction Relief: Court Rules 
1. Court Rule Authorizing a First Petition for Post-Conviction Relief. Rule 3:22-2(c) allows a defendant to file a petition for post-conviction relief challenging his or her sentence on the ground that the sentence is "in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under" subparts (a), (b) or (d) of Rule 3:22-2. Those grounds are: the defendant suffered a "substantial denial of a right" under the United States Constitution or New Jersey Constitution or laws; the court lacked jurisdiction; and any other ground "available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy." R. 3:22-2(a), (b) and (d). See Rule 3:22-12(a)(1) for time limitation for filing. See Rule 7:10-2 for post-conviction relief petitions in municipal court. 
2. Subsequent Petitions for Post-Conviction Relief. Rule 3:22-4(a) limits the filing of a subsequent petition for post- conviction relief to claims that (1) "could not reasonably have been raised in any prior proceeding," (2) "result in fundamental injustice," or (3) implicate a new or existing constitutional right. Rule 3:22-12(a)(2) sets forth the time limitations for a subsequent petition for post-conviction relief. 
3. Appeal of a Denial for Post-Conviction Relief. Rule 2:3-2 provides: "In any criminal action, any defendant, the defendant's legal representative, or other person aggrieved by . . . an adverse judgment in a post-conviction proceeding attacking a conviction or sentence . . . may appeal or, where appropriate, seek leave to appeal, to the appropriate appellate court." 
B. Post-Conviction Relief: Case Law 
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1. Post-Conviction Relief Is Not a Substitute for a Direct Appeal. A petition for post-conviction relief is not a substitute for a direct appeal. State v. Mitchell, 126 N.J. 565, 583 (1992). A defendant may not raise in a post-conviction relief proceeding any issue that might reasonably have been raised in a direct appeal unless denial of the petition would be contrary to constitutional law or would result in fundamental injustice. Id. at 584; State v. Laurick, 120 N.J. 1, 10, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990). 
2. Excessive Sentence Challenges Prohibited. An excessive sentence claim challenges the harshness of a sentence that is "within the range permitted by the verdict or plea." State v. Hess, 207 N.J. 123, 145 (2011). It must be asserted on direct appeal; it will not be heard in a post-conviction relief petition. Ibid. Only illegal sentences may be challenged on post-conviction relief. State v. Acevedo, 205 N.J. 40, 46-47 (2011). 
3. Illegal Sentence Challenges Allowed. A defendant may file a petition to correct an illegal sentence at any time before the defendant completes the sentence. State v. Schubert, 212 N.J. 295, 313 (2012); State v. Crawford, 379 N.J. Super. 250, 257 (App. Div. 2005). The claim may be asserted in a petition for post-conviction relief, even if the claim could have been presented on direct appeal. State v. Levine, 253 N.J. Super. 149, 156 (App. Div. 1992). 
4. Plea Withdrawal Based on Misinformation. A defendant may be able to retract a guilty plea by way of a petition for post- conviction relief if he or she was misinformed about the consequences of the plea. State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (reversing the denial of a petition for post-conviction relief and remanding for a hearing to determine whether the incorrect information regarding community supervision for life of a sex offender rendered the plea uninformed). 
5. Challenge to Gap-Time Credits. Gap-time credit claims "pertain to the legality of the sentence imposed and may be raised in a petition for post-conviction relief." State v. Shabazz, 263 N.J. Super. 246, 251 (App. Div.), certif. denied, 133 N.J. 444 (1993). 
6.   Enhanced Sentence Based on a Prior Uncounseled Guilty Plea.
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Under state constitutional law, the court may not impose an enhanced term of incarceration based on a prior uncounseled guilty plea without waiver of the right to counsel. State v. Hrycak, 184 N.J. 351, 362-63 (2005); State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990); State v. Thomas, 401 N.J. Super. 180, 184 (Law Div. 2007). An enhanced jail term based on an uncounseled prior conviction is not an illegal sentence, however. State v. Bringhurst, 401 N.J. Super. 421, 431 (App. Div. 2008). Thus, a challenge to it should be asserted on direct appeal. Id. at 428-37. 
source https://www.judiciary.state.nj.us/attorneys/assets/attyresources/manualsentencinglaw.pdf © 2017