Criminal Statutes, Court Rules Jury Charges NJ : MANUAL ON NEW JERSEY SENTENCING LAW

MANUAL ON NEW JERSEY

SENTENCING LAW

HEATHER YOUNG KEAGLE

STAFF ATTORNEY, CENTRAL APPELLATE RESEARCH STAFF

APPELLATE DIVISION,

NEW JERSEY SUPERIOR COURT

May 2, 2017 Revision

INTRODUCTION

This Manual is designed to outline and summarize sentencing law in New Jersey. It provides brief topical discussions of court rules, statutory provisions primarily in Title 2C, and case law. Since it is intended as a complement to the Criminal Code, statutory sections have not been reproduced; they have been paraphrased and quoted where pertinent.

The research into statutory changes, court rule changes, and published court decisions is current through May 2, 2017. Legal discussion of relevant statutes is addressed to the current versions of these provisions, unless specifically noted otherwise.

I. SENTENCING PROCEDURE ...................................... 1

A. The Presentence Investigation and Report: Statutory Provisions and Court Rules................................... 1

B. Rights Relating to the Sentencing Hearing: Statutory Provisions and Court Rules................................... 2

C. Sentencing Policies and Dispositions: Statutory Provisions ............................................................. 4

D. Imposing a Sentence: Case Law........................... 7

II. SENTENCES ASSOCIATED WITH PLEA AGREEMENTS ............... 15

A. Plea Agreements: Court Rules........................... 15

B. Plea Agreements: Case Law.............................. 16

III. MERGER ................................................. 29

A. Merger in General: Statutory Provisions................ 29 B. Merger Precluded: Statutory Provisions................. 30 C. Standards Regarding Merger: Case Law................... 34

IV. IMPRISONMENT ............................................ 42

A. Presumptions in Favor of and Against Imprisonment: Statutory Provisions ........................................ 42

B. Ordinary Terms of Imprisonment: Statutory Provisions .. 44

C. Standards Relating to Imprisonment: Statutory Provisions 48

D. Standards Relating to Imprisonment: Case Law .......... 49

V. PROBATION, SPLIT SENTENCES AND SUSPENDED SENTENCES ....... 53

A. Probation, Split Sentences and Suspended Sentences: Statutory Provisions ........................................ 53

B. Violation of a Term of Probation or of a Suspended Sentence: Statutory Provisions ............................. 57

C. Probation and Suspended Sentences: Case Law............ 59

VI. AGGRAVATING AND MITIGATING FACTORS ...................... 63

A. The Aggravating and Mitigating Factors: Statutory Provisions .................................................. 63

B. Aggravating Factors: Case Law.......................... 65 C. Mitigating Factors: Case Law .......................... 68

iii

D. Case Law Applicable to Both Types of Factors ........... 70

VII. PAROLE INELIGIBILITY ................................... 75

A. Parole Ineligibility Imposed at the Court's Discretion: Statutory Provisions........................................ 76

B. Mandatory Parole Ineligibility Under The No Early Release Act (NERA): Statutory Provisions ........................... 76

C. Non-NERA Mandatory Parole Disqualifiers: Statutory Provisions .................................................. 79

D. NERA: Case Law ......................................... 88

E. Parole Ineligibility, Non-NERA Offenses: Case Law...... 91

VIII. EXTENDED TERMS ........................................ 95

A. Discretionary Extended Terms: Statutory Provisions .... 95 B. Mandatory Extended Terms: Statutory Provisions......... 99 C. Extended Terms: Case Law.............................. 105

IX. CONCURRENT AND CONSECUTIVE SENTENCES ................... 113

A. Consecutive Terms Within the Court's Discretion: Statutory Provisions ....................................... 113

B. Mandatory Consecutive Terms: Statutory Provisions..... 115

C. Consecutive and Concurrent Terms: Case Law............ 118

X. FINES ................................................... 123

A. Fines in General: Statutory Provisions................ 123

B. Specific Fines Authorized, or Required, by Law: Statutory Provisions ................................................. 125

C. Standards Regarding Fines: Case Law................... 132

XI. RESTITUTION ............................................ 134

A. Restitution in General: Statutory Provisions.......... 134

B. Mandatory and Specific Restitution: Statutory Provisions 135

C. Standards Regarding Restitution: Case Law ............ 137

XII. PENALTIES, FEES, ASSESSMENTS AND REGISTRATIONS ........ 143

A. Penalties, Fees, Assessments and Registrations: Statutory Provisions ................................................. 143

B. Payment of Penalties, Fees and Assessments: Statutory Provisions ................................................. 156

C. Penalties, Fees and Assessments: Case Law............. 157

XIII. THE GRAVES ACT AND ASSAULT WEAPONS SENTENCING ........ 162

A. Graves Act Sentencing: Statutory Provisions........... 162 B. Assault Weapons Sentencing: Statutory Provisions...... 167 C. Graves Act Sentencing: Case Law ...................... 170 D. Assault Weapons Sentencing: Case Law ................. 176

XIV. DRUG OFFENDER SENTENCING .............................. 177

A. Special Probation: Statutory Provisions .............. 177

B. Special Probation and Drug Court: Case Law ........... 188

C. Fines Specific to Drug Offenses: Statutory Provisions 190

D. Penalties, Fees and Assessments Specific to Drug Offenses: Statutory Provisions ....................................... 192

E. Merger of Certain Drug Offenses: Statutory Provisions 197

F. Standards Relating to Imprisonment: Statutory Provisions 199

G. Parole Ineligibility: Statutory Provisions............ 200

H. Extended Terms: Statutory Provisions ................. 202

I. Consecutive Terms: Statutory Provisions .............. 203

J. N.J.S.A. 2C:35-12 Waiver of Drug Offender Sentencing Enhancements: Statutory Provisions........................ 205

K. Drug Offender Sentencing Enhancements: Case Law ...... 206

XV. SEX OFFENDER SENTENCING ................................ 216

A. Merger of Certain Offenses Prohibited: Statutory Provisions ................................................. 216

B. Enhanced Ordinary Terms of Imprisonment for Certain Offenses: Statutory Provisions ............................ 216

Restrictions on Noncustodial Terms: Statutory Provisions 217

Parole Supervision for Life: Statutory Provisions..... 218 Parole Ineligibility: Statutory Provisions ........... 221 Mandatory Extended Terms: Statutory Provisions ....... 223 Fines Authorized, or Required, by Law: Statutory

G.
Provisions ................................................. 227

J. Sex Offender Treatment: Statutory Provisions ......... 230

K. Sex Offender Sentencing: Case Law .................... 236

XVI. JAIL AND GAP-TIME CREDITS ............................. 242

A. Jail Credit: Court Rules and Statutory Provisions .... 242 B. Gap-Time Credit: Statutory Provisions................. 242 C. Jail Credit: Case Law ................................ 243 D. Gap-Time Credit: Case Law............................. 247

XVII. MOTION TO CHANGE A SENTENCE .......................... 252

A. Motion to Change a Sentence: Court Rules ............. 252

B. Motion to Change a Sentence: Case Law ................ 253

XVIII. DIRECT APPEAL BY A DEFENDANT ........................ 255

A. Direct Appeal by a Defendant of a Sentence: Court Rules and Statutory Provisions................................... 255

B. Excessive Sentence Challenges: Case Law .............. 256

C. Illegal Sentence Challenges: Case Law ................ 256

D. Standards Relating to Direct Appeal of a Sentence: Case Law 261

E. Double Jeopardy Concerns on Remand: Case Law ......... 264

XIX. APPEAL BY THE STATE IN CRIMINAL CASES ................. 269

A. Appeal by the State: Court Rules ..................... 269 B. Appeal by the State: Statutory Provisions ............ 270 C. Appeal by the State: Case Law ........................ 271 D. Double Jeopardy Concerns on Remand: Case Law.......... 274

XX. POST-CONVICTION RELIEF ................................. 278

A. Post-Conviction Relief: Court Rules .................. 278 B. Post-Conviction Relief: Case Law ..................... 278

I. SENTENCING PROCEDURE

The process of sentencing generally begins with a presentence investigation and report (see section A). The matter then proceeds to a sentencing hearing (see section B) where the court may impose a number of dispositions (see section C). The chapters in this manual discuss in more detail the specific dispositions available to the court. This chapter provides a general overview of the process. Section D discusses case law on the process.

A. The Presentence Investigation and Report: Statutory Provisions and Court Rules

1. Statutory Authority for a Presentence Investigation and Report. N.J.S.A. 2C:44-6(a) provides that before sentencing on an indictable offense, the court must order a presentence investigation of the defendant to be conducted by court support staff. See also R. 3:21-2(a). If a municipal court is imposing the sentence, no presentence investigation is required. R. 7:9- 1(a).

(a) Information Included in the Presentence Report.

N.J.S.A. 2C:44-6(b)(1) to (3) provides a list of information the presentence investigation shall address, including (among other factors): the circumstances attending the commission of the offenses; any history of delinquency, criminality, substance abuse and treatment or civil commitment; the defendant's family situation, financial resources and debts, child support obligations, and employment history; the disposition of charges against any codefendant; and the harm the victim suffered.

(b) Medical and Psychological History. N.J.S.A. 2C:44- 6(b) provides that unless the court exercises its discretion to waive a medical and psychological examination (discussed further below), the presentence report should include information on the defendant's medical and psychological history if the court is imposing sentence on a first or second degree crime of violence and the defendant has any of the following:

 a prior acquittal by reason of insanity or suspension of charges on a finding of unfit-to- proceed; or
 a prior conviction for murder (N.J.S.A. 2C:11-3), aggravated sexual assault or sexual assault (N.J.S.A. 2C:14-2), kidnapping (N.J.S.A. 2C:13- 1), or endangering the welfare of a child in the second degree (N.J.S.A. 2C:24-4), third degree stalked (N.J.S.A. 2C:12-10); or
 a previous diagnosis of psychosis.
The court may "order any additional psychological or medical testing of the defendant" after reviewing the initial presentence report. N.J.S.A. 2C:44-6(c). See also R. 3:21-2(b).
(c) Medical and Psychological History Exception. N.J.S.A. 2C:44-6(b) grants the court discretion to waive the medical and psychological examination, unless the case involves a conviction for: endangering the welfare of a child (N.J.S.A. 2C:24-4); criminal trespass of a school building or on school property (N.J.S.A. 2C:18-3); attempting to lure or entice a child with purpose to commit a criminal offense (N.J.S.A. 2C:13-6); stalking (N.J.S.A. 2C:12-10); or kidnapping where the victim is less than eighteen years old (N.J.S.A. 2C:13-1).
(d) Victim Statement. The presentence report may contain

a statement by the victim regarding the physical, psychological and financial harm the defendant caused. N.J.S.A. 2C:44-6(b).

B. Rights Relating to the Sentencing Hearing: Statutory Provisions and Court Rules

1. Timely Sentence. Rule 3:21-4(a) requires the imposition of a sentence "without unreasonable delay." "Pending sentence the court may commit the defendant or continue or alter the bail." R. 3:21-4(a).

2. Defendant's Presence at Sentencing. Rule 3:21-4(b) provides: "Sentence shall not be imposed unless the defendant

is present or has filed a written waiver of the right to be present." Similarly, Rule 3:16 instructs: "The defendant shall be present at every stage of the trial, including . . . the imposition of sentence, unless otherwise provided by Rule."

3. The Defendant's Right to Speak at Sentencing (the Right of Allocution). "Before imposing sentence the court shall address the defendant personally" and ask if he or she wishes to speak on his or her own behalf or "present any information in mitigation of punishment. The defendant may answer personally or by his or her attorney." R. 3:21-4(b).

4. The Victim's Right to Speak. The Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to 38, grants the victim the right to speak at sentencing. N.J.S.A. 52:4B-36(n). In the case of a homicide, the victim's survivor may speak and present a photograph of the victim. N.J.S.A. 52:4B-36.1(a).

5. Consolidation of Charges in Multiple Counties. Rule 3:25A-1 provides that prior to sentencing, the defendant, or a

prosecutor with the defendant's consent, may move consolidation of charges pending in multiple counties for the purposes of entering a plea and for sentencing. The prosecutor in each county shall receive written notice of the motion and be provided an opportunity to be heard. Ibid.

(a) Factors for the Court to Consider in Deciding a Motion to Consolidate Charges. In determining whether to order consolidation and, if so, the forum county, the court should consider the number of crimes committed in each county, the comparative gravity of the crimes, the similarity or connection of the crimes, the locations of the most recent and most serious crimes, the defendant's sentencing status, the victim's rights, and any other relevant factor. R. 3:25A-1.

(b) Post-Consolidation Proceedings. "Each county prosecutor of the county in which a charge is pending shall be allowed to participate fully in the disposition of that charge after consolidation is ordered. If a plea agreement is entered that resolves less than all of the consolidated charges, the judge in the forum county shall order each unresolved charge to be returned immediately to the originating county. In the event that the consolidated charges have not been resolved within a reasonable period after consolidation, the judge in the forum county shall

for

order each charge to be returned immediately to the originating county." R. 3:25A-1.

C. Sentencing Policies and Dispositions: Statutory Provisions

1. Statutory Authority on the Purposes of the Sentencing Laws.

N.J.S.A. 2C:1-2(b) provides that the general purposes of sentencing provisions are:

(1) "To prevent and condemn the commission of offenses";

(2) "To promote the correction and rehabilitation of offenders";

(3) "To insure the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed and the confinement of offenders when required in the interest of public protection";

(4) "To safeguard offenders against excessive, disproportionate or arbitrary punishment";

(5) "To give fair warning of the nature of the sentences that may be imposed on conviction of an offense";

(6) "To differentiate among offenders with a view to a just individualization in their treatment";

(7) "To advance the use of generally accepted scientific methods and knowledge in sentencing offenders"; and

(8) "To promote restitution to victims."

2. Sentencing in Accordance With Chapter 43. N.J.S.A. 2C:43- 2(a) provides: "Except as otherwise provided by this code, all persons convicted of an offense shall be sentenced in accordance with this chapter [i.e. Chapter 43, N.J.S.A. 2C:43-1 to -22]." "'Offense' means a crime, a disorderly persons offense or a petty disorderly persons offense." N.J.S.A. 2C:1-14(k).

3. General Authorized Dispositions. N.J.S.A. 2C:43-2(b) to (d) provides that a court may impose as a sentence:

 A suspended sentence;
 A fine;
 Restitution;
 Probation;
 Imprisonment;
 Community service;
 Participation in a halfway house or other residential facility;
 Participation in a training or educational program in addition to imprisonment at night or on the weekends;
 Revocation of a license;
 Forfeiture of, or removal from, office; and
 A civil penalty.
4. Young Adult Offender Sentencing. N.J.S.A. 2C:43-5 provides that when sentencing a defendant who was less than twenty-six years old at the time of sentencing, the court may impose an indeterminate term to a youth correctional facility.
(a) Excluded Defendants. The court may not sentence a young adult offender to an indeterminate term at a youth correctional facility if:

 The crime is subject to the Graves Act mandatory minimum term (N.J.S.A. 2C:43-6(c)), N.J.S.A. 2C:43- 5; or
 The defendant has a prior conviction for a crime punishable by imprisonment in State prison, N.J.S.A. 30:4-147; or
 The defendant has been previously sentenced to a State Prison in this State or any other state, N.J.S.A. 30:4-147.

(b) Maximum Length of the Sentence. The maximum sentence imposed on a young adult offender shall not exceed five years, absent "good cause shown." N.J.S.A. 30:4-148. If good cause is established for a longer term, then the maximum term shall not be "greater than the maximum provided by law." N.J.S.A. 30:4-148. If the maximum sentence for the crime for which the court is imposing sentence is less than five years, then the maximum term applicable to the crime--not five years--shall be the maximum sentence. Ibid.

5. Downgrading and Lenient Sentences. N.J.S.A. 2C:44-1(f)(2) provides that where the defendant committed a first or second degree crime, the court may sentence the defendant to a term appropriate to a crime of one degree lower or impose a non- custodial term if the court is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors" and "the interest of justice demands" a downgrading for purposes of sentencing.

6. Rationale for the Sentence Must Be Stated. N.J.S.A. 2C:43- 2(e) instructs: "The court shall state on the record the reasons for imposing the sentence, including its findings pursuant to the criteria for withholding or imposing imprisonment or fines under sections 2C:44-1 to 2C:44-3 [criteria for imposing imprisonment, fines, restitution and extended terms], where imprisonment is imposed, consideration of the defendant's eligibility for release under the law governing parole and the factual basis supporting its findings of particular aggravating or mitigating factors affecting sentence."

7. Parole Laws Must Be Explained to the Defendant Sentenced to Imprisonment. N.J.S.A. 2C:43-2(f) provides: "The court shall explain the parole laws as they apply to the sentence and shall state":

(1) The approximate period the defendant will serve in custody before becoming eligible for parole;

(2) Any jail credits that will be subtracted from the sentence;

(3) The defendant's entitlement to good time and work credits; and

(4) The defendant's potential eligibility for participation as an inmate in the Intensive Supervision Program (N.J.S.A. 2C:43-11).

"Release of offenders on parole, recommitment and reparole after revocation shall be governed by the 'Parole Act of 1979,'" N.J.S.A. 30:4-123.45 to -123.76. N.J.S.A. 2C:43-9.

D. Imposing a Sentence: Case Law

1. Waiver of the Right to Be Present at Sentencing. A defendant does not have an absolute right to be absent from sentencing. State v. Tedesco, 214 N.J. 177, 182 (2013). He or she must submit to the sentencing court a written request to be absent from the hearing. Id. at 191. In deciding whether to grant the request, "trial judges should be guided by a number of relevant factors: the interests of the public, the defendant, the victims, and the State." Id. at 191-92.

2. A Sentence May Not Be Based Solely on Failure to Appear at the Hearing. The court may not use the defendant's failure to appear at sentencing as the sole rationale for a sentence. State v. Wilson, 206 N.J. Super. 182, 184 (App. Div. 1985).

3. The Defendant's Right to Speak at Sentencing (the Right of Allocution). Denial of the right of allocution will require an automatic remand on direct appeal regardless of whether the defendant suffered prejudice. State v. Blackmon, 202 N.J. 283 (2010); State v. Cerce, 46 N.J. 387, 396-97 (1966); State in the Interest of J.R., 244 N.J. Super. 630, 639 (App. Div. 1990). The same is not true if the defendant waits to raise the challenge in a petition for post-conviction relief. State v. Cerce, 46 N.J. 387, 395-96 (1966) (holding that in a post- conviction relief proceeding the defendant must establish prejudice or other aggravating circumstances to warrant a remand). See also R. 3:22-2(c) (on post-conviction-relief sentencing challenges).

4. Statements from Others. "[O]ther than defendants, and crime victims or their survivors, there is no absolute right to speak at a sentencing proceeding; instead, permitting others to address the court directly is a matter entrusted to the sentencing court's discretion." Sentencing courts "need not entertain mere pleas for mercy" or "permit presentations that

are cumulative" or repetitive of "previously-submitted written comments. Nor are they required to permit presentations that are scurrilous, vengeful, or inflammatory." The court should consider whether the individual "has information that bears upon an aggravating or mitigating factor, and may require a proffer consistent with one of those factors from defendant's counsel, electing to limit the grant of permission accordingly." State v. Blackmon, 202 N.J. 283, 305 (2010).

Jurors May Not Participate in Sentencing. While the sentencing court has discretion to hear from others, this rule does not apply to those who served as jurors at the defendant's trial. State v. Mahoney, 444 N.J. Super. 253, 259 (App. Div. 2016). Jurors "have no relevant information to add for consideration by the sentencing judge because they are limited to addressing the evidence presented during the trial." Allowing jurors to speak at sentencing "ignores the primary and important fundamental role of the jury and unnecessarily runs the substantial risk of distracting the jurors and undermining the sanctity of the jury's deliberative process." Ibid.

5. The Right to Counsel. The defendant has a constitutional right to have counsel present at sentencing. N.J. Const. art. I, ¶ 10; State v. Jenkins, 32 N.J. 109, 112 (1960). "Sentencing hearings under the Criminal Code are crucial stages of a trial for which counsel must be available" State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002) (internal quotation omitted).

6. Counsel's Alleged Conflict of Interest. If the defendant alleges a conflict of interest and requests an adjournment to retain new counsel, the court must address the conflict of interest claim prior to proceeding any further. State v. Vasquez, 432 N.J. Super. 354, 359-60 (App. Div. 2013), certif. denied, 217 N.J. 296 (2014). If a per se conflict of interest arose prior to sentencing, a reviewing court will presume prejudice, in the absence of a waiver by the defendant, and will order a new sentencing hearing. State v. Alexander, 403 N.J. Super. 250, 257-60 (App. Div. 2008). This is so even if the defendant raises the challenge for the first time in a petition for post-conviction relief. Ibid.

7. Sixth Amendment Right to a Speedy Trial. The Sixth Amendment guarantee to a speedy trial "protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty

to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments." Betterman v. Montana, ___ U.S. ___, ___, 136 S. Ct. 1609, 1612, 194 L. Ed. 2d 723, 729 (2016) (fourteen month delay in sentencing).

8. Considerations as of the Date of Sentencing. "[A] defendant should be assessed as he stands before the court on the day of sentencing." State v. Jaffe, 220 N.J. 114, 116 (2014) (citing State v. Randolph, 210 N.J. 330, 354 (2012)). Thus, "the sentencing court must consider a defendant's relevant post- offense conduct in weighing aggravating and mitigating factors." Ibid.

9. Courts Apply the Sentencing Law in Effect at the Time of Sentencing. When the Legislature changes punishment prior to the imposition of sentence, the court applies the law in effect at the time of sentencing. State in Interest of C.F., 444 N.J. Super. 179, 191 (App. Div. 2016).

10. Findings and Rationale. "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting R. 3:21-4(g)). "Central to the success of" the sentencing "process is the requirement that the judge articulate the reasons for imposing sentence." State v. Case, 220 N.J. 49, 54 (2014). But see State v. Molina, 168 N.J. 436, 442 (2001) (providing that "on occasion" courts have "dispensed with the need for a remand for a statement of . . . reasons when . . . convinced that the sentences clearly fall within the sentencing guidelines"). Inconsistent and unclear findings will require a remand, even though a remand may not result in a lesser sentence than the one initially imposed. State v. Sene, 443 N.J. Super. 134, 144-45 (App. Div. 2015), certif. denied, 224 N.J. 282 (2016).

11. Individualized Assessment. In imposing sentence, the court must make an individualized assessment of the defendant based on the facts of the case and the aggravating and mitigating sentencing factors. State v. Jaffe, 220 N.J. 114, 122 (2014). "[A] remark in open court, even in a subsequent, unrelated proceeding, that a judge 'always' sentences defendants convicted of" a particular offense to a specific prison term "undermines

public confidence" in our criminal justice system and suggests that the court did not set a sentence based on "the unique facts of a defendant's case." State v. McFarlane, 224 N.J. 458, 469 (2016).

12. Excessive and Arbitrary Sentencing. N.J.S.A. 2C:1-2(b)(4) provides that one general purpose of the provisions governing sentencing is "[t]o safeguard offenders against excessive, disproportionate or arbitrary punishment." To that end, "'[t]he central theme' of our sentencing jurisprudence is the exercise by courts of 'a structured discretion designed to foster less arbitrary and more equal sentences.'" State v. Roach, 146 N.J. 208, 231, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (Roach I) (quoting State v. Roth, 95 N.J. 334, 345 (1984)).

13. Uniformity. Our Court "has consistently stressed uniformity as one of the major sentencing goals in the administration of criminal justice." State v. Roach, 146 N.J. 208, 231, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (Roach I). See also State v. Hodge, 95 N.J. 369, 379 (1984) (providing that "there can be no justice without a predictable degree of uniformity in sentencing").

14. Sentencing Co-Defendants. In light of the Code's goals to promote uniformity, fairness and public confidence in sentencing, an "otherwise sound and lawful sentence" will be invalid if it is different from a similarly situated co- defendant's sentence. 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) (Roach I).

The Substantially Similar Standard. In sentencing a co- defendant, the "trial court must determine whether the co- defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity." State v. Roach, 146 N.J. 208, 233, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (Roach I).

15. The Standard for Downgrading. In deciding whether to downgrade an offense for purposes of sentencing, the court considers whether the mitigating factors substantially outweigh the aggravating and whether the interest of justice demands the downgrade. State v. Megargel, 143 N.J. 484, 495 (1996); State v. L.V., 410 N.J. Super. 90, 112-13 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010). The decision to downgrade "in the interest of justice" should be limited to circumstances where a defendant can provide "compelling" reasons in addition to, and separate from, the mitigating factors that substantially outweigh the aggravating factors. State v. Megargel, 143 N.J. 484, 505 (1996); State v. L.V., 410 N.J. Super. 90, 112-13 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010) (downgrading where the defendant's mental illnesses, young age, "very limited intelligence," cognitive inabilities, language and social barriers, years of having been sexually abused and threatened by her father, and having been twice impregnated by him explained why she had acquiesced to his orders to throw her newborn infant out a window and to not aid the other newborn when her father threw that infant out a window).

(a) Factors to Consider in Deciding Whether to Downgrade.

In deciding whether to downgrade an offense, the court should consider the degree of the crime, whether the surrounding circumstances make the offense similar to one of a lesser degree, and the defendant's characteristics as they relate to the offense. State v. Megargel, 143 N.J. 484, 500-01 (1996); State v. Rice, 425 N.J. Super. 375, 384 (App. Div.), certif. denied, 212 N.J. 431 (2012). The severity of the crime is the most important factor. State v. Megargel, 143 N.J. 484, 500 (1996).

(b) Offenses With Enhanced Penalties. Where the Legislature has provided an enhanced penalty for an offense, "the downgrade of that offense requires more compelling reasons than the downgrade of an offense for which the Legislature has not attached an enhanced penalty." State v. Rice, 425 N.J. Super. 375, 385 (App. Div.) (quoting State v. Megargel, 143 N.J. 484, 502 (1996)), certif. denied, 212 N.J. 431 (2012). A sentencing court should not use its discretion to ignore the legislative design. State v. Lopez, 395 N.J. Super. 98, 108-09 (App. Div.), certif. denied, 192 N.J. 596 (2007).

(c) Rationale for a Downgrade. A trial court must state on the record its reasons for downgrading and should

particularly state why a sentence at the lowest end of the sentencing range is not a more appropriate sentence. State v. Megargel, 143 N.J. 484, 502 (1996).

(d) Presumption of Imprisonment. On a downgrade from a second to third degree crime, the defendant remains "convicted" of a second degree crime for purposes of applying a presumption of imprisonment. State v. O'Connor, 105 N.J. 399, 404-05 (1987); State v. Lebra, 357 N.J. Super. 500, 507 (App. Div. 2003).

(e) The No Early Release Act (NERA). When a defendant pleads guilty to a second degree crime subject to the NERA, and the court downgrades the crime to one of the third degree, the court must impose a term of incarceration because the crime to which the defendant pled guilty was subject to a mandatory minimum term of imprisonment. State v. L.V., 410 N.J. Super. 90, 113 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010).

(f) Drug Offenses and Parole Ineligibility. When downgrading from a first to second degree crime, the mandatory period of parole ineligibility for first degree drug distribution (N.J.S.A. 2C:35-5(b)(1)) survives the downgrade. State v. Barber, 262 N.J. Super. 157, 162 (App. Div.), certif. denied, 133 N.J. 441 (1993).

(g) Downgrades Pursuant to a Plea Agreement. Where the parties agree to a downgrade in a plea agreement, the court must consider the aggravating and mitigating factors and whether the interest of justice warrant a downgrade before imposing sentence pursuant to the agreement. State v. Nemeth, 214 N.J. Super. 324, 326-27 (App. Div. 1986).

(h) Maximum Term Permissible on a Downgraded Offense. The court may grant a request to downgrade an offense and impose the maximum term on the downgraded offense. State v. Balfour, 135 N.J. 30, 38 (1994); State v. Nemeth, 214 N.J. Super. 324, 326-27 (App. Div. 1986). The decisions to downgrade and to set a term of imprisonment are distinct and independent decisions within the court's discretion. State v. Balfour, 135 N.J. 30, 38 (1994). The court may conclude that a plea agreement tipped the scale in favor of downgrading, but that a term at the higher end of the range is warranted in light of the aggravating and mitigating factors. Id. at 39.

16. Young Adult Offender Sentencing.

(a) Certain Defendants Excluded. The court may not impose an indeterminate sentence under the young adult offender statute (N.J.S.A. 2C:43-5) if the defendant: committed a Graves Act offense, State v. Des Marets, 92 N.J. 62, 76 (1983); has previously been sentenced to a state prison or to a federal prison or penitentiary, State v. Levine, 253 N.J. Super. 149, 162 (App. Div. 1992); committed a crime subject to the No Early Release Act period of parole ineligibility, State v. Corriero, 357 N.J. Super. 214, 217- 18 (App. Div. 2003); or committed a drug offense that requires a period of parole ineligibility, State v. Luna, 278 N.J. Super. 433, 437-38 (App. Div. 1995).

(b) No Preference in Favor of a Young Adult Offender Sentence. The young adult offender indeterminate sentence is an option within the sentencing court's discretion; the Code contains no preference for it. State v. Styker, 262 N.J. Super. 7, 21-22 (App. Div.), aff'd o.b., 134 N.J. 254 (1993).

(c) Ordinary Term of a Young Adult Offender Sentence. The ordinary term for a young adult offender sentenced to an indeterminate term is five years, since the sentence may not exceed five years, absent good cause shown. State v. Scherzer, 301 N.J. Super. 363, 497 (App. Div.), certif. denied, 151 N.J. 466 (1997).

(d) Good Cause Standard for a Longer Term. Good cause to impose a term longer than five years may exist where the aggravating factors preponderate over the mitigating factors, State v. Ferguson, 273 N.J. Super. 486, 495 (App. Div.), certif. denied, 138 N.J. 265 (1994), or where the facts and circumstances of the case, or the real-time consequences of the sentence warrant a term longer than five years, State v. Scherzer, 301 N.J. Super. 363, 498-500 (App. Div.), certif. denied, 151 N.J. 466 (1997).

(e) Consecutive Terms. A judge may impose consecutive indeterminate sentences on a young adult offender; however, "routine use of this kind of sentence . . . is undesirable and should be avoided." State v. Carroll, 66 N.J. 558, 561 (1975). Because young adult offender sentencing focuses on correction and rehabilitation, not punishment, the Yarbough

factors (discussed in the chapter on concurrent and consecutive terms) do not apply. State v. Hannigan, 408 N.J. Super. 388, 396-400 (App. Div. 2009). Rather, consecutive indeterminate sentences for young adult offenders "must be justified with reference to offender- based criteria centered on rehabilitation." Id. at 400.

II. SENTENCES ASSOCIATED WITH PLEA AGREEMENTS

Plea bargaining is "central to the administration of the criminal justice system," Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1407, 182 L. Ed. 2d 379, 389 (2012). Section A of this Chapter discusses Court Rules on plea bargaining, and Section B discusses relevant case law.

A. Plea Agreements: Court Rules

1. Court Rule Authorizing Plea Negotiations. Rule 3:9-3(a) authorizes the State and the defendant to discuss pleas and sentences to "promote a fair and expeditious disposition of the case." For a discussion of plea agreements in drug cases where the prosecutor waives enhanced terms, see the chapter on drug offender sentencing.

2. Consolidation of Charges in Multiple Counties for Purposes of Plea Negotiations and Sentencing. Rule 3:25A-1 provides that at any time prior to sentencing, the defendant, or a prosecutor with the defendant's consent, may move for consolidation of charges pending in multiple counties for the purposes of entering a plea and for sentencing. The prosecutor in each county shall receive written notice of the motion and shall be provided an opportunity to be heard. If a plea agreement does not resolve all charges, the unresolved charges shall "be returned immediately to the originating county." If the defendant and prosecutor do not resolve the consolidated charges "within a reasonable period after consolidation, the judge in the forum county shall order each charge to be returned immediately to the originating county."

3. Authorized Discussions With the Court. Rule 3:9-3(c) allows the parties to disclose to the court a tentative plea agreement. The court may indicate "whether it will concur in the tentative agreement or, if no tentative agreement has been reached," the court may notify the defendant of "the maximum sentence it would impose in the event the defendant enters a plea of guilty."

4. Conditional Pleas. So long as the State consents and the court approves, the defendant "may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the

defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea." R. 3:9-3(f).

5. Plea Cut-Off Date. The court may not accept a plea "[a]fter the pretrial conference has been conducted and a trial date set," unless the criminal presiding judge approves the plea "based on a material change of circumstance, or the need to avoid a protracted trial or a manifest injustice." R. 3:9-3(g).

6. Accepting a Plea. Rule 3:9-2 provides that the court should accept a plea of guilty if, after questioning the defendant on the record, the court is satisfied that the admitted facts support the charges and that the defendant is entering the plea knowingly and voluntarily. The court may accept a written stipulation of facts signed by the defendant, defense counsel, and the prosecutor.

7. Waiver of the Right to Appeal. If the defendant waives the right to appeal in a plea agreement, the court must notify the defendant that he or she may still file an appeal, but that the State may annul the agreement upon the defendant's filing the notice of appeal. R. 3:9-3(d).

8. Withdrawal of the Plea at the Time of Sentencing. Rule 3:9- 3(e) provides: "If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement . . . or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea."

9. Post-Sentencing Motion to Withdraw a Guilty Plea. The court may grant a motion to withdraw a guilty plea after sentencing "to correct a manifest injustice." Rule 3:21-1.

B. Plea Agreements: Case Law

1. Constitutional Right to Counsel. A defendant has Sixth Amendment rights that attach when the State offers a plea agreement and when a defendant accepts a plea offer. Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1407, 182 L. Ed. 2d 379, 389 (2012). Accord Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1385-91, 182 L. Ed. 2d 398, 407-14 (2012).

2. Entering a Plea Waives Constitutional Rights. "[A] defendant who pleads guilty waives important constitutional rights, including the right to avoid self-incrimination, to confront his accusers, and to secure a jury trial." State v. Barboza, 115 N.J. 415, 420 (1989).

3. Maximum Sentence Authorized by the Sixth Amendment. The maximum sentence authorized for Sixth Amendment purposes depends on the defendant's admissions at the plea hearing and on the defendant's prior criminal convictions. Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 417 (2004); State v. Franklin, 184 N.J. 516, 537-38 (2005); State v. Natale II, 184 N.J. 458, 495 (2005). 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, 417 (2004)). Implicit agreement to judicial factfinding may be found where a defendant pleads guilty and acknowledges exposure to a specific sentence in exchange for waiver of trial by jury. State v. Natale II, 184 N.J. 458, 495 n.12 (2005); State v. Soto (I), 385 N.J. Super. 247, 253-55 (App. Div. 2006); State v. Anderson, 374 N.J. Super. 419, 423-24 (App. Div.), certif. denied, 185 N.J. 266 (2005).

4. Consolidation of Charges in Multiple Counties. Pursuant to Rule 3:25A-1, a defendant, or the prosecutor with the defendant's consent, may move to consolidate charges in multiple counties for the purpose of entering a plea and for sentencing. State v. Rountree, 388 N.J. Super. 190, 212 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "Consolidated plea

negotiations are generally advantageous
Obviously, consolidated plea negotiations
benefits for the State and for the judicial system as well." Ibid. "[W]hen a defendant has indictments pending in more than one vicinage, defense counsel is obligated to consider the factors set forth in Rule 3:25A-1, and to move for consolidation at an early stage where appropriate." Ibid.

5. Post-Verdict Plea Agreements. "While not common, post- verdict guilty pleas are not against public policy." State v. Owens, 381 N.J. Super. 503, 510-11 (App. Div. 2005) (referring to N.J.S.A. 2C:35-12, which allows the defendant and prosecutor to enter a post-conviction agreement that waives the extended

to a defendant. have potential

and mandatory minimum term offenders).

applicable to certain drug

6. Prohibited and Authorized Provisions of a Plea Agreement.

(a) The Agreement May Be Conditioned Upon Defendant's Presence at Sentencing. A plea agreement may be valid and enforceable if it allows a court to increase a defendant's sentence in the event the defendant 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) (holding that an extended sentence based entirely upon nonappearance is illegal because it is unrelated to any of the sentencing criteria set forth in the Code).

(b) The Agreement May Not Restrict Judicial Discretion. A plea agreement may not restrict the court's discretion in imposing sentence. State v. Hess, 207 N.J. 123, 151 (2011). "[A] criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice." Ibid. (quoting State v. Warren, 115 N.J. 433, 447 (1989)); State v. Watford, 261 N.J. Super. 151, 157 (App. Div. 1992) (explaining that the prosecutor may not make any binding promises regarding the sentence).

(c) Restrictions on the Defense Are Prohibited. A plea agreement that restricts the defendant's ability to present mitigating evidence, or to argue for a sentence lesser than the one agreed to, denies the defendant the right to effective assistance of counsel. State v. Hess, 207 N.J. 123, 152-53 (2011); State v. Briggs, 349 N.J. Super. 496, 501-03 (App. Div. 2002).

(d) Illegal Sentences Are Prohibited. The court may not impose an illegal sentence, even if the prosecutor and defendant request the sentence. State v. Crawford, 379 N.J. Super. 250, 258 (App. Div. 2005); State v. Manzie, 335 N.J. Super. 267, 278 (App. Div. 2000), aff'd, 168 N.J. 113 (2001); State v. Baker, 270 N.J. Super. 55, 70 (App. Div.), aff'd o.b., 138 N.J. 89 (1994).

(e) Civil Commitment of a Sexual Predator. "A plea agreement by a county prosecutor which operates as an impediment to a valid civil commitment of a sexual predator is void as against public policy." In re Commitment of P.C., 349 N.J. Super. 569, 572 (App. Div. 2002).

(f) A Plea Agreement May Provide for Restitution. Since compensation to the victim is a relevant sentencing factor, the parties may include a restitution award in a plea agreement. State v. Corpi, 297 N.J. Super. 86, 92-93 (App. Div.), certif. denied, 149 N.J. 407 (1997).

7. Conditional Pleas. 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 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).

8. Rules Relating to the Factual Basis of a Plea.

(a) Factual Basis for a Plea. "The factual basis for a guilty plea can be established by a defendant's explicit admission of guilt or by a defendant's acknowledgment of the underlying facts constituting essential elements of the crime." State v. Gregory, 220 N.J. 413, 418-19 (2015). Accord State v. Urbina, 221 N.J. 509, 527-28 (2015). The court may not "presume facts required to establish the essential elements of the crime." State v. Gregory, 220 N.J. 413, 421 (2015) (internal quotation marks omitted). Accord State v. Tate, 220 N.J. 393, 406 (2015); State v. Perez, 220 N.J. 423, 433-34 (2015).

(b) Challenge to the Factual Basis of a Plea. "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"; however, "a defendant may also challenge the sufficiency of the factual basis for his guilty plea on direct appeal." State v. Urbina, 221 N.J. 509, 528 (2015).

(c) Motion to Vacate a Plea Based on Inadequate Facts, Standard of Review. "The standard of review of a trial court's denial of a motion to vacate a guilty plea for lack of an adequate factual basis is de novo." State v. Urbina, 221 N.J. 509, 528 (2015) (quoting State v. Tate, 220 N.J. 393, 402 (2015)).

(d) Remedy for an Insufficient Factual Basis for a Plea.

If an appellate court finds "that a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re- plead or to proceed to trial." State v. Barboza, 115 N.J. 415, 420 (1989). The same remedy applies when the defendant enters the guilty plea "without a plea offer from the prosecutor, but after the defendant has been advised by the trial court regarding the maximum sentence the judge was 'inclined' to impose." State v. Ashley, 443 N.J. Super. 10, 13 (App. Div. 2015), certif. denied, 224 N.J. 526 (2016).

9. Collateral and Penal Consequences of a Guilty Plea.

(a) Knowledge of the Consequences. To ensure that a plea is entered knowingly and voluntarily, as required by Rule 3:9-3, the court must advise the defendant of the penal consequences of a guilty plea. State v. Johnson, 182 N.J. 232, 236-37 (2005); State v. Smullen, 437 N.J. Super. 102, 110 (App. Div. 2014). Lack of understanding of a collateral consequence, however, will not warrant a reversal unless the collateral consequence was "a material element of the plea." State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003). Accord State v. Maldon, 422 N.J. Super. 475, 485 (App. Div. 2011) (stating that "if a defendant is affirmatively misinformed about a collateral consequence that is a central issue in the plea negotiations, the plea may not be knowing and voluntary"). In assessing a lack-of-understanding claim, the court's statements to the defendant at the plea hearing are the primary concern, but the contents of the plea form are also relevant. State v. Williams, 342 N.J. Super. 83, 91 (App. Div.), certif. denied, 170 N.J. 207 (2001); State v. Rumblin, 326 N.J. Super. 296, 299-302 (App. Div. 1999), aff'd, 166 N.J. 550 (2001).

(b) Parole Ineligibility Must Be Explained. The court must advise the defendant of any period of parole ineligibility associated with a guilty plea. State v. Kovack, 91 N.J. 476, 483 (1982). See State v. Bailey, 226 N.J. Super. 559, 567-68 (App. Div. 1988) (requiring the court to notify the defendant of a mandatory parole ineligibility term pursuant to N.J.S.A. 2C:43-6(c) (the Graves Act)).

(c) Sex Offender Consequences of a Guilty Plea Must Be Explained. The court must notify the defendant of the parole consequences and potential sex-offender treatment consequences of a guilty plea to a sex offense. State v. Howard, 110 N.J. 113, 124-25 (1988); State v. Luckey, 366 N.J. Super. 79, 89-90 (App. Div. 2004). This includes instruction on parole and community supervision for life requirements. State v. Smullen, 437 N.J. Super. 102, 110 (App. Div. 2014); State v. Schubert, 212 N.J. 295, 307-08 (2012); State v. Bellamy, 178 N.J. 127, 138 (2003); State v. J.J., 397 N.J. Super. 91, 99 (App. Div. 2007), appeal dismissed, 196 N.J. 459 (2008); State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003).

(d) The No Early Release Act (NERA) Must Be Explained. If the defendant pleads guilty to an offense subject to the NERA, the court must advise the defendant of the NERA requirements, including explanation that if the defendant violates a term of parole, parole supervision may extend beyond the term of the original sentence. State v. Johnson, 182 N.J. 232, 240-41 (2005).

(e) Consecutive Terms Must Be Explained. "Where it has been brought to the attention of the court that the defendant has either pleaded to or has been found guilty on other charges or is presently serving a custodial term and the plea agreement is silent on the issue, the accused should, in all fairness, be informed of the contingency that all sentences may be made to run consecutively." State v. Cullars, 224 N.J. Super. 32, 40-41 (App. Div.), certif. denied, 111 N.J. 605 (1988). However, the court need not inform a defendant that if the defendant violates a term of probation in the future, the court may impose a consecutive sentence. State v. Garland, 226 N.J. Super. 356, 364-65 (App. Div.), certif. denied, 114 N.J. 288 (1988).

(f) Extended Term Must Be Explained. The court must advise the defendant of the consequences of an extended term where the prosecutor reserves the right to request one. State v. Cartier, 210 N.J. Super. 379, 381-82 (App. Div. 1986).

(g) The Possibility of an Enhanced Term in the Future Need Not Be Explained. The court need not inform the defendant

that pleading guilty to a crime could result in the imposition of an enhanced sentence in the future if the defendant were to commit another crime. State v. Wilkerson, 321 N.J. Super. 219, 224-28 (App. Div.), certif. denied, 162 N.J. 128 (1999).

(h) Probation Violation Penalties Must Be Explained. Rule 3:21-4(c) requires the court to inform a defendant sentenced to probation of the penalties that might be imposed upon revocation of probation. State v. Ervin, 241 N.J. Super. 458, 470 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990).

(i) Community Service Need Not Be Explained. Prior to accepting a guilty plea the court need not explain to the defendant that the sentence may include community service. State v. Saperstein, 202 N.J. Super. 478, 483 (App. Div. 1985).

(j) Failure to Mention the Possibility of Restitution May Not Require Reversal. Prior to accepting a plea, the court should advise a defendant on a possible restitution award; however, failure to do so will not necessarily require a reversal. State v. Kennedy, 152 N.J. 413, 425-26 (1998); State v. Rhoda, 206 N.J. Super. 584, 596 (App. Div.), certif. denied, 105 N.J. 524 (1986). The question is whether the restitution award was "beyond defendant's reasonable anticipation." State v. Saperstein, 202 N.J. Super. 478, 483 (App. Div. 1985) (remanding to allow the defendant to withdraw the plea where the court imposed a $150,000 restitution award that the defendant did not reasonably contemplate in pleading guilty).

(k) The Court Should Explain a Substantial Fine. Where a substantial fine is an integral and material part of a sentence, the court should have instructed the defendant on it prior to accepting the plea. State v. Alford, 191 N.J. Super. 537, 540 (App. Div. 1983), appeal dismisssed, 99 N.J. 199 (1984).

(l) Forfeiture of Public Employment Need Not Be Explained.

Forfeiture of public employment is not a penal consequence of a plea; thus, the court does not have a duty to advise a defendant that it may be a consequence of a guilty plea. State v. Medina, 349 N.J. Super. 108, 122 (App. Div.), certif. denied, 174 N.J. 193 (2002); State v. Heitzman, 209

N.J. Super. 617, 621-22 (App. Div. 1986), aff'd, 107 N.J. 603 (1987).

(m) Clearly Defined Deportation Consequences Must Be Explained. Failure to notify a noncitizen defendant that deportation is a "presumptively mandatory" consequence of a guilty plea will form a basis for a post-conviction relief plea withdrawal when "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequences." Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295-96 (2010). See State v. Gaitan, 209 N.J. 339, 372 (2012) (holding that the Padilla ruling has no retroactive effect), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Under State law, defense counsel is ineffective if he or she affirmatively provides incorrect information or misleading advice on the deportation consequences of a plea. State v. Gaitan, 209 N.J. 339, 354-55 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); State v. Nuñez-Valdéz, 200 N.J. 129, 140 (2009); State v. Blake, 444 N.J. Super. 285, 295 (App. Div.), certif. denied, 226 N.J. 213 (2016). When the deportation consequences are "unclear or uncertain," trial counsel is not ineffective under Padilla and Nuñez-Valdéz in advising that deportation "might" be a consequence of a guilty plea. State v. Telford, 420 N.J. Super. 465, 470-71 (2011), certif. denied, 209 N.J. 595 (2012).

(n) Drunk Driving Mandatory Jail Time Must Be Explained.

The court must notify the defendant of the mandatory jail time applicable to third-time drunk driving offenders. State v. Regan, 209 N.J. Super. 596, 607 (App. Div. 1986).

10. Rejection of a Guilty Plea.

(a) The Court May Reject a Plea. "[T]here is no absolute right to have a plea accepted." State v. Salentre, 275 N.J. Super. 410, 419 (App. Div.), certif. denied, 138 N.J. 269 (1994). Accord State v. Barboza, 115 N.J. 415, 422 (1989).

(b) Self-Defense Suggested by the Facts. "[I]f a suggestion of self-defense is raised in the plea colloquy, then the trial court must inquire whether the defendant is factually asserting self-defense. If the defendant states that he is not claiming self-defense, then the plea can be

accepted. On the other hand, if the defendant claims that he used deadly force against the victim in the reasonable belief that his life was in danger, then the defendant is asserting that he did not commit the crime," and the court may not accept the plea unless the defendant waives the defense. State v. Urbina, 221 N.J. 509, 528 (2015).

(c) Standard of Review of the Trial Court's Rejection of a Plea. An appellate court reviews a lower court's refusal to accept a plea under the abuse-of-discretion standard. State v. Daniels, 276 N.J. Super. 483, 487 (App. Div. 1994), certif. denied, 139 N.J. 443 (1995). A trial court abuses its discretion when it rejects a plea because the court believes the agreed upon sentence was too lenient or a jury could convict the defendant of a greater offense. State v. Madan, 366 N.J. Super. 98, 110 (App. Div. 2004).

11. Rules Relating to the Sentence.

(a) The Sentence Must Be Based on Evidence. Like a sentence imposed after a trial, a sentence imposed pursuant to a plea agreement must be "based upon findings of fact that are grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363 (1984). The court may "look beyond [the facts admitted in] a defendant's plea allocution." State v. Hupka, 407 N.J. Super. 489, 498 (App. Div. 2009), aff'd, 203 N.J. 222 (2010).

(b) Imposition of a Lighter Sentence and Withdrawal by the State. If the court imposes a sentence that is less than that agreed to, the State may not rescind the agreement. State v. Hess, 207 N.J. 123, 151 (2011); State v. Warren, 115 N.J. 433, 442 (1989).

(c) A Harsher Sentence Than Agreed Upon. "If the sentencing court is convinced that the sentence envisioned by the plea bargain is inappropriate, the court may vacate the plea or permit the defendant to withdraw the guilty plea." State v. V.D., 401 N.J. Super. 527, 535 (App. Div. 2008).

(d) Defendant's Right to Appeal. A defendant may appeal a sentence that was the product of a plea agreement. State v. Vasquez, 129 N.J. 189, 194 (1992).

(e) Imposition of a Suspended Term Versus Probation. A defendant's reasonable expectations under a plea bargain are not violated when the court imposes a five-year suspended sentence instead of a five-year probationary term, since the potential future consequences of both sentences are the same. State v. Cullen, 351 N.J. Super. 505, 509 (App. Div. 2002).

(f) Standard of Review of a Sentence Imposed Pursuant to a Plea Agreement. Unless the appeal raises a question of law, a court reviews a sentence imposed pursuant to a plea agreement under the abuse-of-discretion standard. State v. Sainz, 107 N.J. 283, 292 (1987); State v. Roth, 95 N.J. 334 (1984). Where a defendant receives the exact sentence bargained for, a presumption of reasonableness attaches to the sentence. State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996); State v. Tango, 287 N.J. Super. 416, 422 (App. Div.), certif. denied, 144 N.J. 585 (1996).

12. Plea Agreements and a Violation of Probation. On resentencing after a violation of probation, the court is not required to impose a sentence in accordance with the initial plea agreement, as "the original plea agreement 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).

13. Motion to Withdraw a Guilty Plea.

(a) The Slater Factors. In considering a motion to withdraw a plea that is supported by an adequate factual basis, regardless of whether the defendant makes the motion before or after sentencing, the judge must consider and balance: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009). Accord State v. Tate, 220 N.J. 393, 404 (2015); State v. McDonald, 211 N.J. 4, 16 (2012).

(b) Standard of Review of the Slater Factors. In reviewing a trial court's findings on the Slater factors, an appellate court applies the abuse of discretion standard. State v. Tate, 220 N.J. 393, 404 (2015).

(c) Standard of Review Based on Lack of Factual Basis. In reviewing a trial court's denial of a motion to withdraw a guilty plea based on an inadequate factual basis, the appellate division owes no deference to the lower court's decision, and reviews the decision de novo. State v. Tate, 220 N.J. 393, 405 (2015).

(d) Post-Sentencing Plea Withdrawal. A defendant may withdraw a plea after the court imposes sentence "only if withdrawal of the plea is necessary to correct a 'manifest injustice.'" State v. Johnson, 182 N.J. 232, 237 (2005) (quoting R. 3:21-1). That discretionary determination necessitates a weighing of "the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandably." Ibid. (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)).

(e) Remedy When a Court Grants a Motion to Withdraw a Plea. Where the court grants a motion to withdraw a plea the defendant may: (1) "renegotiate the plea agreement, if the State is willing to do so;" (2) proceed to trial on all counts charged in the indictment; or (3) withdraw the motion to withdraw or vacaten the plea and accept the original sentence. State v. Johnson, 182 N.J. 232, 244 (2005) (citing State v. Kovack, 91 N.J. 476, 485 (1982)).

(f) Post-Sentencing Plea Withdrawal and Double Jeopardy.

When the defendant withdraws a plea after sentencing "the slate [i]s wiped clean," and the court may impose any lawful sentence after conviction. State v. Naji, 205 N.J. Super. 208, 216 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986) (noting that a defendant is "not subjected, oppressively and vexatiously, to multiple or enhanced punishment" when the defendant chooses "to be resentenced fully aware of the possible benefits and detriments").

14. Reversal of the Conviction on Appeal, Downgrading by the State. Where a reviewing court reverses a conviction that was the product of a plea agreement, the State may not downgrade the conviction to a lesser-included offense in an effort to save the plea, unless the defendant consents to the downgrade. State v. Barboza, 115 N.J. 415, 422 (1989). "[T]o allow a court to

direct the entry of a guilty plea to a lesser-included criminal offense without defendant's consent is tantamount to permitting a court to direct a verdict against a defendant in a criminal case." Id. at 423. "[I]t would also violate Rule 3:9-2, which prohibits the use of an admission elicited in support of a refused guilty plea." Ibid.

15. Misunderstanding as a Basis to Vacate a Plea.

(a) Defendant's Misunderstanding. A defendant may successfully challenge a guilty plea on the ground that he or she misunderstood the sentencing terms of the plea agreement. State v. Alevras, 213 N.J. Super. 331, 338 (App. Div. 1986) (misunderstanding applicable credits and real-time consequences of the plea); State v. Reinhardt, 211 N.J. Super. 271, 275 (App. Div. 1986) (erroneously believing the plea agreement allowed for drug treatment).

(b) Court's Misunderstanding of Merger. As a matter of fundamental fairness, a defendant may withdraw a plea on remand where the defendant detrimentally relied upon the court's mistaken understanding of the effect of merger on eligibility to drug-court special-probation. State v. Ancrum, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 20-21 (reversing a sentence of special probation because the defendant committed an offense that precludes special probation, and that offense survived merger for purposes of determining special-probation eligibility).

16. Ineffective Assistance of Counsel Claims.

(a) Claims Based on Incorrect Information. "[A]n attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance." State v. Taccetta, 351 N.J. Super. 196, 214 (App. Div.), certif. denied, 174 N.J. 544 (2002). Accord Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1385-91, 182 L. Ed. 2d 398, 407-14 (2012).

(b) Claims Based on Failure to Convey an Offer. Failure to notify a defendant of a plea offer may result in a successful ineffective assistance of counsel claim if the defendant accepted a less favorable offer. Missouri v.

Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1407, 1408-11, 182 L. Ed. 2d 379, 390-94 (2012).

III. MERGER

Merger prevents a defendant from being punished more than once for a single wrongdoing. Prior to imposing a sentence, the court must determine whether similar crimes merge (see section A). Section B of this Chapter addresses offenses where the Legislature has prevented merger. Section C discusses case law on merger.

A. Merger in General: Statutory Provisions

1. Statutory Authority for Merging Offenses. N.J.S.A. 2C:1- 8(a)(1) provides that when conduct establishes more than one offense, the defendant may be prosecuted for each offense, but may not be convicted of more than one offense if:

(1) "One offense is included in the other," as defined in N.J.S.A. 2C:1-8(d); or

(2) One offense is a conspiracy or preparation to commit the other offense; or

(3) The offenses require inconsistent findings of fact; or

(4) The offenses differ only in that one prohibits "a designated kind of conduct generally," and the other prohibits "a specific instance of such conduct."

2. "One Offense Included in Another." Pursuant to N.J.S.A. 2C:1-8(d), an offense is included in another if any of the following circumstances apply:

(1) "It is established by proof of the same or less than all the facts required to establish the commission of the offense charged";

(2) "It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein"; or

(3) "It differs from the offense charged only in the respect that a less serious injury or risk of injury to the

same person, property or public interest or a lesser kind of culpability suffices to establish its commission."

Note: The New Jersey Supreme Court has criticized the N.J.S.A. 2C:1-8(a) standard as "mechanical" in nature, choosing instead to apply the more flexible pre-Code standard set forth in State v. Davis, 68 N.J. 69, 77-81 (1975). State v. Tate, 216 N.J. 300, 306-07 (2013). Section C of this chapter further discusses the Davis standard.

B. Merger Precluded: Statutory Provisions

1. Leaving a Motor Vehicle Accident Resulting in Death.

N.J.S.A. 2C:11-5.1 precludes merger of the offense into a conviction for aggravated manslaughter (N.J.S.A. 2C:11-4) and vehicular homicide (N.J.S.A. 2C:11-5).

2. Second or Third Degree Leaving the Scene of a Boating Accident. N.J.S.A. 2C:11-5.2(c) prohibits merger into a conviction for aggravated manslaughter (N.J.S.A. 2C:11-4) and vehicular homicide (N.J.S.A. 2C:11-5).

3. Leaving a Motor Vehicle Accident Resulting in Serious Bodily Injury. N.J.S.A. 2C:12-1.1 precludes merger of the offense into a conviction for aggravated assault (N.J.S.A. 2C:12-1(b)) and assault by auto (N.J.S.A. 2C:12-1(c)).

4. Endangering an Injured Victim. N.J.S.A. 2C:12-1.2(d) provides that the conviction "shall not merge with a conviction of the crime that rendered the person physically helpless or mentally incapacitated."

5. Third Degree Reckless Endangerment. N.J.S.A. 2C:12-2(b)(2) instructs that the conviction "shall not merge with a conviction for any offense that the defendant intended to commit or facilitate, when the defendant violated the provisions of this section." Note: Effective January 11, 2016, this statute was repealed and replaced by N.J.S.A. 2C:24-7.1 (endangering another person), which does not include an anti-merger provision.

6. Luring or Enticing a Child. N.J.S.A. 2C:13-6(f) precludes merger "with any other criminal offense."

7. Luring or Enticing an Adult. N.J.S.A. 2C:13-7(f) precludes merger "with any other criminal offense."

8. 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.

9. Bias Intimidation. N.J.S.A. 2C:16-1(e) precludes merger with an offense, or attempt to commit an offense, in Chapters 11 through 18 of Title 2C, or with the following offenses: harassment (N.J.S.A. 2C:33-4); prohibited weapons and devices (N.J.S.A. 2C:39-3); possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4); and unlawful possession of a weapon (N.J.S.A. 2C:39-5).

10. Leader of a Cargo Theft Network, Repeat Offender. N.J.S.A. 2C:20-2.4(a)(2) precludes merger with the crime of robbery. N.J.S.A. 2C:20-2.4(b) precludes merger "with the conviction for any offense which is the object of the conspiracy."

11. Leader of Organized Retail Theft Enterprise. N.J.S.A. 2C:20-11.2 prohibits the offense from merging with any offense that is the object of the conspiracy.

12. Use of a Juvenile in Theft of an Automobile. N.J.S.A. 2C:20-17(a) prohibits merger with the offense of auto theft.

13. Leader of Auto Theft Trafficking Network. N.J.S.A. 2C:20-18 prohibits the offense from merging with any offense that is the object of the conspiracy.

14. Computer Theft. N.J.S.A. 2C:20-25(h) provides that the conviction shall not merge with a conviction under any subsection of N.J.S.A. 2C:20-25 (computer theft), with a conviction under N.J.S.A. 2C:20-31 (wrongful access, disclosure of information), or with a conspiracy or attempt to commit either offense.

15. False Use of Personal Identification. N.J.S.A. 2C:21- 17.2(b) prohibits merger with another conviction under this statute or any other statute.

16. Financial Facilitation of Criminal Activity. N.J.S.A. 2C:21-27(c) precludes merger "with the conviction of any other offense constituting the criminal activity involved or from which the property was derived, and a conviction of any offense

constituting the criminal activity involved or from which the property was derived shall not merge with a conviction of an offense defined in" N.J.S.A. 2C:21-25 (financial facilitation of criminal activity).

17. Use of a Juvenile to Commit a Crime. N.J.S.A. 2C:24-9(c) prohibits merger with the underlying offense.

18. Witness Tampering. N.J.S.A. 2C:28-5(e) prohibits merger with "an offense that was the subject of the official proceeding or investigation."

19. Official Deprivation of Civil Rights. N.J.S.A. 2C:30-6(c) precludes merger with any other criminal offense.

20. Pattern of Official Misconduct. N.J.S.A. 2C:30-7(b) provides that the conviction "shall not merge with a conviction of official misconduct, official deprivation of civil rights, or any other criminal offense."

21. Solicitation of Street Gang Members. N.J.S.A. 2C:33-28(g) provides that the conviction shall not merge with another conviction under this statute, nor with "a conviction for any criminal offense that the actor committed while involved in criminal street gang related activity."

22. Leader of a Dog Fighting Network. N.J.S.A. 2C:33-32(c) (effective Aug. 10, 2015) provides that the conviction "shall not merge with the conviction for any offense, nor shall such other conviction merge with a conviction under this section, which is the object of the conspiracy."

23. 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.

24. 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 drug offense in Chapter 35 of Title 2C, or a conspiracy or attempt to commit a Chapter 35 offense.

25. 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 a CDS), or N.J.S.A. 2C:35-9 (strict liability for drug induced death).

26. 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 a CDS) or N.J.S.A. 2C:35-6 (employing a juvenile in a drug distribution scheme).

27. 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 CDS), or N.J.S.A. 2C:35-6 (employing a juvenile in a drug distribution scheme).

28. 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."

29. Terrorism. N.J.S.A. 2C:38-2(f) precludes merger with any other offense.

30. 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);
 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).
31. Leader of Firearms Trafficking Network. N.J.S.A. 2C:39-16 prohibits merger with any offense that is the object of the conspiracy.
C. Standards Regarding Merger: Case Law
1. Merger Described. Merger prohibits a defendant from being punished more than once for a single wrongdoing. State v. Tate, 216 N.J. 300, 302 (2013); State v. Davis, 68 N.J. 69, 77-81 (1975). Under the New Jersey Constitution, the right derives from "double jeopardy, substantive due process, or some other legal tenet." State v. Davis, 68 N.J. 69, 77 (1975). Accord State v. Diaz, 144 N.J. 628, 637 (1996). Under the Federal Constitution, the right falls within the prohibition against double jeopardy. State v. Dillihay, 127 N.J. 42, 47-48 (1992).
2. The New Jersey Davis Standard. In determining whether a defendant may be punished for two convictions, a court must first determine whether the Legislature intended to create separate offenses. State v. Davis, 68 N.J. 69, 78 (1975). If the Legislature intended to create two separate offenses, then the court must decide whether the offenses are so similar that conviction for both is nonetheless prohibited by the Constitution. Id. at 81. The court should employ a "flexible approach" that considers the elements of the crime and the facts of the case "attended by considerations of fairness and fulfillment of reasonable expectations." Ibid. (internal quotation omitted).

Considerations. The Davis standard requires the court to consider the following, in addition to any other relevant circumstances: "the time and place of each purported violation"; whether the proof for each offense is the same; "whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed." State v. Davis, 68 N.J. 69, 81 (1975). The weight that any factor receives "depend[s] on the circumstances of the particular case." Ibid.

3. The Federal Blockburger Test. Federal law applies a narrower test than the Davis standard to determine whether offenses are the same for purposes of merger. Rutledge v. United States, 517 U.S. 292, 297-98, 116 S. Ct. 1241, 1245-46, 134 L. Ed. 2d 419, 426 (1996); Blockburger v. United States, 284 U.S. 299, 302, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). The federal Blockburger test asks whether one offense requires proof of a fact that the other offense does not require. 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309. This test mirrors the standard set forth in N.J.S.A. 2C:1-8(a), which our Court has criticized as "mechanical." State v. Truglia, 97 N.J. 513, 520 (1984).

4. Legislative Authority to Impose Multiple Punishments. Under federal law, the Legislature may impose multiple punishments for one offense, so long as it clearly expresses its intention to do so. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535, 544 (1983). The New Jersey Supreme Court has not determined "whether or to what extent New Jersey's constitutional guarantee affords greater protection." State v. Dillihay, 127 N.J. 42, 47-48 (1992) (citing State v. Churchdale Leasing, 115 N.J. 83, 108 (1989)). But in Davis, the Court said that if the Legislature did "no more than simply apply different labels to what is in fact the same charge, it would plainly exceed its authority." Id. at 80. In a later decision the Court said that this proposition expressed "a more restrictive view of legislative power" than that authorized by the United States Supreme Court in Hunter. State v. Churchdale Leasing, 115 N.J. 83, 123 (1989).

5. Greater Offenses Do Not Merge. "No crime of greater degree or culpability can merge into one of lesser degree or culpability." State v. Hammond, 231 N.J. Super. 535 (App. Div. 1989), certif. denied, 117 N.J. 636 (1989). Accord State v. Dillihay, 127 N.J. 42, 49-50 (1992); State v. Battle, 256 N.J.

Super. 268, 283 (App. Div.), certif. denied, 130 N.J. 393 (1992).

6. Mandatory Penalties. "[M]andatory penalties attendant upon a lesser charge" survive merger and must be included in the sentence on the greater offense. State v. Frank, 445 N.J. Super. 98, 109 (App. Div. 2016) (quoting State v. Baumann, 340 N.J. Super. 557 (App. Div. 2001), in holding that a mandatory penalty for a motor vehicle violation survived merger). See also State v. Wade, 169 N.J. 302, 303 (2001) (driving while intoxicated); State v. Dillihay, 127 N.J. 42, 55 (1992) (drug distribution in a school zone); State v. Connell, 208 N.J. Super. 688, 696 (App. Div. 1986) (the Graves Act).

7. The Harshest Sentence Must Be Imposed. When offenses merge, the court must impose "the more severe aspects of the sentence for each offense." State v. Robinson, 439 N.J. Super. 196, 200 (App. Div. 2014) (imposing the maximum term on the conviction that merged and the parole ineligibility term on the conviction that survived merger to impose the most severe sentence authorized by the two convictions), certif. denied, 221 N.J. 492 (2015).

8. Merger of the General With the Specific. Convictions for lewdness and endangering the welfare of a child merge when the basis of the conviction for endangering the welfare of a child is the same as the facts that establish lewdness. State v. Hackett, 166 N.J. 66, 77 (2001).

9. Additional Element. Aggravated arson and first degree arson do not merge because first degree arson requires an additional element of offering or accepting payment to start a fire. State v. Allison, 208 N.J. Super. 9, 24-25 (App. Div.), certif. denied, 102 N.J. 370 (1985).

10. Separate Culpable Harm. Similar crimes will not merge when they involve separate culpable harms. State v. Soto, 385 N.J. Super. 257, 264-65 (App. Div.), certif. denied, 188 N.J. 491 (2006) (drug possession within 1000 feet of a school and unlawful possession of a firearm while committing a drug offense do not merge); State v. Walker, 385 N.J. Super. 388, 409-11 (App. Div.), certif. denied, 187 N.J. 83 (2006) (maintaining a structure within which drugs are sold and possession of drugs with intent to distribute do not merge).

11. Different Protected Interests. Aggravated sexual assault of a child, (N.J.S.A. 2C:14-2(a)(1)) and child endangerment (N.J.S.A. 2C:24-4(a)) do not merge because the statutes protect different interests. State v. Miller, 108 N.J. 112, 118 (1987).

12. Different Elements. Aggravated assault (N.J.S.A. 2C:12- 1(b)(1) and (4)) and possession of a handgun with the purpose of using it unlawfully against another (N.J.S.A. 2C:39-4(a)) do not merge because the elements of the crimes differ. State v. Truglia, 97 N.J. 513, 521 (1984).

13. Separate Victims. Aggravated assault convictions will not merge when the defendant harmed separate victims. State v. Lewis, 223 N.J. Super. 145, 152 (App. Div.), certif. denied, 111 N.J. 584 (1988).

14. Conspiracy and Preparatory Offenses. When the only purpose of the conspiracy or preparatory offense was to commit the substantive offense, the convictions will merge. State v. Grunow, 102 N.J. 133, 147 (1986); State v. Hardison, 99 N.J. 379, 386-91 (1985).

15. Broader and Independent Purpose. A weapons offense will not merge with a substantive offense when the evidence supports a finding that the purpose in possessing the weapon was broader than, or independent of, the purpose of the substantive crime, and the jury charge did not limit the defendant's purpose to the commission of the substantive crime. State v. Diaz, 144 N.J. 628, 636-37 (1996). An example is when a defendant uses a weapon to commit a robbery and also to frighten victims. Ibid. The purpose in possessing the weapon exceeds the intent to commit a robbery, thus the two convictions do not merge. Ibid. Accord State v. Tate, 216 N.J. 300, 302 (2013) (explaining that "a conviction for third-degree possession of a weapon for an unlawful purpose must merge with a conviction for first-degree aggravated manslaughter when the evidence does not support the existence of another unlawful purpose for possession of the weapon"); State v. Best, 70 N.J. 56, 65-67 (1976) (merging a conviction for possession of a weapon with a robbery conviction).

16. Motor Vehicle Offenses. Title 39 motor vehicle violations "fall within the generic category of petty offenses that do not fit within the Code's definition of a lesser-included criminal offense." State v. Frank, 445 N.J. Super. 98, 108 (App. Div. 2016) (quoting State v. Stanton, 176 N.J. 75, 98, cert. denied,

540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003)). However, when motor vehicle offenses are consolidated with indictable offenses for purposes of trial, it is appropriate for the court to merge a motor vehicle violation with a criminal conviction. Ibid.

17. Verdicts. When the verdict does not answer whether the defendant possessed a weapon with a purpose broader than that needed to commit the substantive offense, the court should not merge the weapons offense unless: (1) the indictment charged possession of a "weapon with a broader unlawful purpose, either generally or specifically, than using the weapon to" commit the substantive offense; (2) the evidence supports a finding of broader purpose; (3) the judge instructed the jury on the difference between possession with the specific unlawful purpose to commit the substantive crime and a broader unlawful purpose; and (4) the verdict "express[es] the jury's conclusion that the defendant had a broader unlawful purpose." State v. Diaz, 144 N.J. 628, 639 (1996).

18. Special Verdict Form. When a defendant is charged with felony murder and more than one felony that resulted in the murder, the court should ask the jury to designate on a special verdict form which felony or felonies constitute the predicate crime. State v. Hill, 182 N.J. 532, 548 (2005). "If the jury designates more than one felony, . . . the trial court at sentencing is to merge only the predicate felony that set in motion the chain of events leading to the murder--the 'first-in- time' predicate felony--into the felony murder conviction." Ibid.

19. Ambiguity Resolved in Defendant's Favor. "Where one set of facts would support merger and another not, and neither the charge to the jury nor the verdict gives any clue as to which set of facts the jury chose, the convictions should merge." State v. Bull, 268 N.J. Super. 504, 516 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).

20. Jury charge. If the jury charge instructed that the purpose in possessing a weapon was to use it against a victim in the substantive offense, then the weapons offense must merge with the substantive offense, even if the evidence could have supported a separate unlawful purpose for the weapons offense. State v. Diaz, 144 N.J. 628, 641 (1996).

21. Possession and Distribution Convictions. A conviction for possession of a controlled dangerous substance (N.J.S.A. 2C:35- 10) will not merge with a conviction for distribution of a controlled dangerous substance (N.J.S.A. 2C:35-5) if the "core conduct" and "mental element" of the offenses is different; if the two are not different, then the offenses will merge. State v. Davis, 68 N.J. 69, 82-83 (1975) (distinguishing State v. Booker, 86 N.J. Super. 175, 177-78 (App. Div. 1965)). See also State v. Miller, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 20) (fourth degree possession of child pornography ((N.J.S.A. 2C:24-4(b)(5)(b)) merged with second degree distribution of child pornography (N.J.S.A. 2C:24-4(b)(5)(a)) because "the crimes were reasonably proximate in time and place" and the defendant's use of computer file-sharing programs "was a necessary ingredient and integral part of both" crimes).

22. Drug Distribution and Distribution in a School Zone. While N.J.S.A. 2C:35-7 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 offense may merge with another drug offense, so long as the "period of parole ineligibility mandated by Section 7 is preserved." State v. Dillihay, 127 N.J. 42, 54 (1992); State v. Brana, 127 N.J. 64, 67 (1992).

23. 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 (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 N.J.S.A. 2C:35-7 mandatory minimum term's surviving merger).

24. Drug Induced Death and Drug Distribution. Although the anti-merger provision of N.J.S.A. 2C:35-9 (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, 583-84 (1994).

25. Drug Induced Death and Distribution Within a School Zone.

These two offenses (N.J.S.A. 2C:35-9 and N.J.S.A. 2C:35-7) do not merge because they require different proofs. State v. Maldonado, 137 N.J. 536, 582 (1994).

26. Possession of a Weapon During a Drug Crime. N.J.S.A. 2C:39-4.1(d) (precluding merger of a conviction for possession of a weapon while committing certain drug offenses with the underlying drug conviction), does not violate principles of due process and double jeopardy under either the Federal or State Constitution. State v. Martinez, 387 N.J. Super. 129, 142-46 (App. Div.), certif. denied, 188 N.J. 579 (2006); State v. Soto (II), 385 N.J. Super. 257, 261-66 (App. Div.), certif. denied, 188 N.J. 491 (2006).

27. 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 of due process or 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).

28. Penalties and Assessments. The court may not impose penalties and assessments on a merged conviction. State v. Francis, 341 N.J. Super. 67, 69 (App. Div. 2001).

29. Merged Crimes Are Not Extinguished. Because merger does not extinguish the conviction on the lesser charge, if the conviction on the greater charge is reversed on appeal the State may request the court to impose sentence on the lesser offense instead of retrying the defendant on the greater offense. State v. Pennington, 273 N.J. Super. 289 (App. Div.), certif. denied, 137 N.J. 313 (1994). 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).

30. Merged Offenses and Drug Court Eligibility. An offense that precludes a sentence of drug-court 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.

31. Merger Is Inapplicable to Charges. Convictions merger; charges do not. State v. Martin, 335 N.J. Super. 447, 450 (App. Div. 2001). Thus, the court may not merge a charged offense into an offense to which the defendant pleads guilty. Ibid.

32. Illegal Sentence. "[T]he failure to merge convictions results in an illegal sentence for which there is no procedural time limit for correction," because merger implicates a defendant's substantive state constitutional rights. State v. Romero, 191 N.J. 59, 80 (2007).

33. Plea Agreements.

(a) Waiver. A defendant may waive the right to merger in a plea agreement. State v. Crawley, 149 N.J. 310, 319 (1997); State v. Truglia, 97 N.J. 513, 523-24 (1984).

(b) Information at Plea Entry. "[W]here the ultimate resolution of the merger issue is uncertain, a guilty plea need not necessarily be overturned when a trial court fails to inform a defendant about the possibility of merger because such a failure does not misinform the defendant about his potential sentence." State v. Crawley, 149 N.J. 310, 316-17 (1997).

IV. IMPRISONMENT

In deciding whether to impose a term of imprisonment, the court must first consider whether the offense is subject to the presumption of imprisonment or the presumption of non- imprisonment (see section A). If the court decides to impose a sentence of imprisonment, the court must set a term within the ordinary range applicable to the offense (see section B), unless the court decides to downgrade the offense (see Chapter I on sentencing procedure) or to impose an extended term (see Chapter VIII on extended terms). The location of incarceration depends upon the length of the sentence (see section C(4)). For statutory rules and case law relating to imprisonment, see sections C and D, respectively.

A. Presumptions in Favor of and Against Imprisonment: Statutory Provisions

1. Statutory Authority on the Presumption of Imprisonment.

N.J.S.A. 2C:44-1(d) provides that the court shall impose a sentence of imprisonment on a defendant convicted of: (1) a first degree crime; (2) a second degree crime; (3) a third degree crime if the court finds (a) the defendant is involved in organized criminal activity, (b) the offense involved an act of domestic violence in the presence of a child under sixteen years of age, or (c) the offense involved an act of domestic violence and " the defendant committed at least one act of domestic violence on more than one occasion," N.J.S.A. 2C:44-1(a)(15); or (4) a third degree crime of auto theft or unlawful taking of an auto if the defendant "has previously been convicted of either offense," N.J.S.A. 2C:44-1(d).

An Exception to the Presumption of Imprisonment. The court need not impose a sentence of imprisonment on a defendant subject to the presumption of imprisonment if the court concludes, "having regard to the character and condition of the defendant, . . . that his [or her] imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1(d).

2. Statutory Authority on the Presumption of Non-Imprisonment.

N.J.S.A. 2C:44-1(e) instructs: "The court shall deal with a person convicted of an offense other than a crime of the first

or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his [or her] imprisonment is necessary for the protection of the public under the criteria set forth" in N.J.S.A. 2C:44-1(a) (the aggravating factors).

3. Offenses to Which the Presumption of Non-Imprisonment Does Not Apply. The presumption of non-imprisonment does not apply if the court finds that (a) the defendant is involved in organized criminal activity, the offense involved an act of domestic violence in the presence of a child under sixteen years of age, the offense involved an act of domestic violence and " the defendant committed at least one act of domestic violence on more than one occasion," N.J.S.A. 2C:44-1(a)(15), or (b) the defendant committed any of the following third degree crimes (N.J.S.A. 2C:44-1(e)):

 Third degree theft of a motor vehicle (N.J.S.A. 2C:20- 2);
 Third degree unlawful taking of a motor vehicle;
 Third degree eluding (N.J.S.A. 2C:29-2);
 Third degree using a false government document (N.J.S.A. 2C:21-2.1(c));
 Third degree distributing, manufacturing, or possessing an item containing personal identifying information of another person (N.J.S.A. 2C:21- 17.3(b));
 Third or fourth degree bias intimidation (N.J.S.A. 2C:16-1);
 Third degree assault (N.J.S.A. 2C:12-1(b)(12));
 Third degree knowingly leaving the scene of an accident that results in serious bodily injury to another person (N.J.S.A. 2C:12-1.1);
 Third or fourth degree gang criminality (N.J.S.A. 2C:33-29); or

 Third or fourth degree promotion of organized street crime (N.J.S.A. 2C:33-30).

The following offenses also provide that the presumption of non-imprisonment shall not apply:

 Leaving the scene of a boating accident (N.J.S.A. 2C:11-5.2(a));
 A first offense of third degree interference with the custody of a child (N.J.S.A. 2C:13-4(a));
 Possession of 100 or more items depicting the sexual exploitation or abuse of a child (Note that the court may make an exception if "imprisonment would be a serious injustice which overrides the need to deter such conduct by others" (N.J.S.A. 2C:24-4(b)(5)(b));
 Corrupting or influencing a jury (N.J.S.A. 2C:29- 8(c));
 Pattern of official misconduct, first time offender (N.J.S.A. 2C:30-7(b)); and
 Drug distribution to a minor or a pregnant female (N.J.S.A. 2C:35-8).

B. Ordinary Terms of Imprisonment: Statutory Provisions

1. Statutory Authority for Ordinary Terms of Imprisonment. The Code classifies crimes into four degrees (first through fourth). N.J.S.A. 2C:43-1(a). If the Code is silent on the degree of crime, or if the offense is designated a misdemeanor, then the crime is one of the fourth degree. N.J.S.A. 2C:43-1(a). A high misdemeanor is a crime of the third degree. N.J.S.A. 2C:43- 1(b).

N.J.S.A. 2C:43-6(a) sets forth the following ordinary terms of imprisonment for first through fourth degree crimes, while N.J.S.A. 2C:43-8 provides for disorderly persons and petty disorderly persons offense:

 First degree crime: between ten and twenty years;
 Second degree crime: between five and ten years;
 Third degree crime: between three and five years;
 Fourth degree crime: not to exceed eighteen months;
 Disorderly persons offense: a term not to exceed six months; and
 Petty disorderly persons offense: a term not to exceed thirty days.
2. Enhanced Ordinary Terms for Certain Offenses. The following offenses have enhanced ordinary terms.
(a) Murder. A murder conviction requires one of the following two sentences:
(1) Thirty-Year Minimum. A defendant must serve between thirty years to life imprisonment for first degree murder with a thirty-year period of parole ineligibility. N.J.S.A. 2C:11-3(b)(1). The thirty- year minimum term also applies to a conviction for an attempt or conspiracy to murder five or more persons. N.J.S.A. 2C:5-4(a).

(2) Life

circumstances

sentenced"

possibility of parole:

Parole. If the following apply, the defendant "shall be to life imprisonment without the

Without

(i) The victim was a law enforcement officer murdered while performing official duties or because of his or her official status, N.J.S.A. 2C:11-3(b)(2); or

(ii) The victim was less than fourteen years old and the murder was carried out during a sexual assault (N.J.S.A. 2C:14-2) or criminal sexual contact (N.J.S.A. 2C:14-3), N.J.S.A. 2C:11- 3(b)(3); or

(iii) The defendant purposely or knowingly caused the death, or serious bodily injury resulting in death, "by his her own conduct," or procured the commission of the offense by the payment or promise of payment of something of pecuniary value, or solicited the commission of the offense as a leader of a narcotics trafficking network, or committed a crime of terrorism during which a murder occurred, and a jury finds beyond a reasonable doubt that any of the twelve aggravating factors listed in N.J.S.A. 2C:11-3(b)(4), are applicable. N.J.S.A. 2C:11- 3(b)(4).

(b) First Degree Aggravated Manslaughter: between ten and thirty years (N.J.S.A. 2C:11-4(c)).

fifteen and thirty years. N.J.S.A. 2C:13-1(c)(1).

(2) 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).

(d) 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).

(e) Carjacking: between ten and thirty years with a five year period of parole ineligibility. N.J.S.A. 2C:15-2(b).

(f) Bias Intimidation: where the underlying crime is a crime of the first degree, between fifteen and thirty years. N.J.S.A. 2C:16-1(c).

(g) Unauthorized Acts at a Nuclear Electric Generating Plant: between fifteen and thirty years. N.J.S.A. 2C:17- 7.

(h) Gang Criminality: where the underlying crime is a crime of first degree, between fifteen and thirty years. N.J.S.A. 2C:33-29(b).

(i) Promoting Organized Street Crime: between fifteen and thirty years. N.J.S.A. 2C:33-30(b).

(j) 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 that pursuant to N.J.S.A. 2C:35-12, the State may waive this enhanced term. See Chapter XIV on drug offender sentencing for further discussion.)

(k) 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. (Note that pursuant to N.J.S.A. 2C:35-12, the State may waive this enhanced term. See Chapter XIV on drug offender sentencing for further discussion.)

(l) Terrorism:

(1) Death Does Not Result: thirty years without parole eligibility, or a term between thirty years and life imprisonment with a parole ineligibility period of thirty years. N.J.S.A. 2C:38-2(b)(1).

(2) Death Results: life imprisonment without parole. N.J.S.A. 2C:38-2(b)(2).

(m) Producing or Possessing Chemical Weapons, Biological Agents, or Nuclear or Radiological Devices:

(1) Death Does Not Result: thirty years without parole eligibility, or a term of years between thirty years and life imprisonment with a parole ineligibility period of thirty years. N.J.S.A. 2C:38- 3(a)(1).

(2) Death Results: life imprisonment without parole. N.J.S.A. 2C:38-3(a)(2).

C. Standards Relating to Imprisonment: Statutory Provisions

1. Guilty Pleas and Failure to Plead May Not Be Considered in Deciding Whether to Impose a Prison Term. Pursuant to N.J.S.A. 2C:44-1(c)(1), the court may not consider a plea of guilty or a failure to plead guilty in deciding whether to withhold or impose a sentence of imprisonment.

2. The Court Must Consider the Real-Time Consequences of Incarceration. N.J.S.A. 2C:44-1(c)(2) instructs: "When imposing a sentence of imprisonment the court shall consider the defendant's eligibility for release under the law governing parole, including time credits awarded pursuant to Title 30 of the Revised Statutes, in determining the appropriate term of imprisonment."

3. Presumptive Terms Eliminated. The Code used to require the court to impose presumptive terms set forth in N.J.S.A. 2C:44- 1(f) unless the aggravating and mitigating factors warranted a longer or shorter term. In State v. Natale II, 184 N.J. 458, 487 (2005), the Court declared this practice unconstitutional under the Sixth Amendment. See section D of this chapter for further discussion.

4. Statutory Authority for Places of Imprisonment. N.J.S.A. 2C:43-10(a) to (c) provides for the following places of incarceration based on the length of the sentence:

(a) Terms of One Year or Longer. Unless the court imposes an indeterminate term pursuant to the young adult offender statute (N.J.S.A. 2C:43-5), and except as provided in N.J.S.A. 2C:43-10(b) below, "when a person is sentenced to imprisonment for any term of 1 year or greater, the court shall commit him [or her] to the custody of the Commissioner of the Department of Corrections for the term of his [or her] sentence and until released in accordance with law."

(b) Terms Not Exceeding Eighteen Months. A defendant sentenced to imprisonment for a term not exceeding eighteen

months may serve the time at a county penitentiary or workhouse.

(c) Terms Less Than One Year. A defendant sentenced to one year or less shall serve the term at "the common jail of the county, the county workhouse or the county penitentiary . . . . In counties of the first class having a workhouse or penitentiary, however, no sentence exceeding 6 months shall be to the common jail of the county."

5. Place of Imprisonment Based Upon the Aggregate Sentence.

For purposes of deciding the location of imprisonment, the court shall aggregate the length of the sentence. N.J.S.A. 2C:43- 10(d).

D. Standards Relating to Imprisonment: Case Law

1. Deciding Whether a Presumption Is Applicable. The first step in imposing a term of incarceration is to determine whether the presumption of incarceration (N.J.S.A. 2C:44-1(d)) is applicable. Sate v. Rivera, 124 N.J. 122, 125-26 (1991). The presumptions for and against incarceration are not all- inclusive. For example, a second-time offender charged with third or fourth degree crimes is generally not subject to either presumption. State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014); State v. Devlin, 234 N.J. Super. 545, 555 (App. Div.), certif. denied, 117 N.J. 653 (1989). Accord State v. Crawford, 379 N.J. Super. 250, 259 (App. Div. 2005) (explaining that neither presumption applied because the "defendant was convicted of three fourth-degree crimes but he was not a first- time offender").

2. When Neither Presumption Applies. Where neither presumption applies, the court must weigh the aggravating and mitigating factors to determine whether incarceration is appropriate. State v. Baylass, 114 N.J. 169, 173 (1989).

3. The Presumption of Imprisonment and Plea Agreements. When a defendant pleads guilty to a first or second degree crime, the presumption of imprisonment applies even if the plea agreement can be construed as providing that the defendant would be sentenced as if for a crime of a lesser degree. State v. O'Connor, 105 N.J. 399, 404-05 (1987). The presumption's

applicability is determined by the offense for which the defendant is convicted. Ibid.

4. Overcoming the Presumption of Imprisonment, the Serious Injustice Exception. "The 'serious injustice' exception to the presumption of imprisonment applies only in 'truly extraordinary and unanticipated circumstances.'" State v. Jabbour, 118 N.J. 1, 7 (1990) (quoting State v. Roth, 95 N.J. 334, 358 (1984)). To satisfy the standard, the defendant should show that he or she is "idiosyncratic." State v. Jarbath, 114 N.J. 394, 408 (1989). See State v. E.R., 273 N.J. Super. 262, 274-75 (App. Div. 1994) (uncontradicted prognosis of imminent death within six months due to AIDS-related disease constitutes "idiosyncratic" situation). The court must also consider "the gravity of the offense with respect to the peculiar facts of a case to determine how paramount deterrence will be in the [sentencing] equation." State v. Evers, 175 N.J. 355, 395 (2003).

(a) Clear and Convincing Evidence. The court should determine whether there is "clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree and, if so, whether cumulatively, they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence." State v. Evers, 175 N.J. 355, 393-94 (2003).

(b) Mitigating Factors Preponderate and First-Time Offenders. The court is not justified in finding the presumption of imprisonment overcome on the basis that the mitigating factors preponderate and the defendant is a first-time offender. State v. Evers, 175 N.J. 355, 388 (2003). Rather, these are reasons to downgrade a sentence or impose a sentence at the low end of the sentencing range. Ibid. Accord State v. Lebra, 357 N.J. Super. 500, 511 (App. Div. 2003).

(c) Hardship. A defendant's finding incarceration difficult and the hardship that will come to his or her family are not sufficient reasons to overcome the presumption of imprisonment and the need for deterrence. State v. Jabbour, 118 N.J. 1, 8 (1990); State v. Johnson, 118 N.J. 10, 17-19 (1990). This is true even if the defendant is a police officer who might face peculiar hardship in prison. State v. Corso, 355 N.J. Super. 518,

528-29 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003).

(d) Court's Disagreement With the Verdict. Disagreement with a jury verdict cannot justify a finding of "serious injustice" so as to overcome the presumption of incarceration. State v. Cooke, 345 N.J. Super. 480, 489-90 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002).

5. Overcoming the Presumption of Non-Imprisonment. To overcome the presumption of non-imprisonment, "the sentencing court must be persuaded by a standard that is higher than 'clear and convincing' evidence that incarceration is necessary." State v. Gardner, 113 N.J. 510, 517-18 (1989). An element of the crime cannot be an aggravating factor, and general deterrence alone is insufficient to overcome the presumption. Id. at 517-20.

6. Enhanced Ordinary Terms and Cruel and Unusual Punishment.

(a) 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. State v. Kadonsky, 288 N.J. Super. 41, 45 (App. Div.), certif. denied, 144 N.J. 589 (1996).

(b) Carjacking. The enhanced imprisonment range of ten to thirty years with a five year period of parole ineligibility for carjacking (N.J.S.A. 2C:15-2) does not constitute cruel and unusual punishment. State v. Zadoyan, 290 N.J. Super. 280, 286 (App. Div. 1996); State v. Williams, 289 N.J. Super. 611, 617-18 (App. Div.), certif. denied, 145 N.J. 375 (1996).

(c) Life Without Parole for Juvenile Offenders. "[T]he Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller v. Alabama, ___ U.S. ___, ___, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407, 424 (2012). See also Montgomery v. Louisiana, ___ U.S. ___, ___, 136 S. Ct. 718, 734, 193 L. Ed. 2d 599, 620 (2016) (ruling that Miller v. Alabama applies retroactively). The Miller rule "applies with equal strength to a sentence that is the practical equivalent of life without parole." State v. Zuber, 227

N.J. 422, 447 (2017).

"The focus at a juvenile’s

sentencing hearing belongs on the real-time consequences of the aggregate sentence. To that end, judges must evaluate the Miller factors when they sentence a juvenile to a lengthy period of parole ineligibility for a single offense." Id. at 447.

7. Presumption of Imprisonment and Split Sentences. Where the presumption of imprisonment applies and the facts present no basis to overcome the presumption, the court may not impose a "split sentence" (a probationary term with a jail term as a condition of probation, N.J.S.A. 2C:43-2(b)(2)). State v. O'Connor, 105 N.J. 399, 410-11 (1987). The jail term in a split sentence is a condition of probation and does not equate to imprisonment for purposes of the presumption of imprisonment. Ibid.

8. Presumption of Non-Imprisonment and Split Sentences. Where the presumption of non-imprisonment applies and the facts present no basis to overcome the presumption, the court may impose a split sentence of probation with a jail term. State v. Hartye, 105 N.J. 411, 418-19 (1987).

9. Prior Record. When considering a defendant's prior record, an "offense" includes disorderly persons and petty disorderly persons offenses. State v. Battle, 256 N.J. Super. 268, 285 (App. Div.), certif. denied, 130 N.J. 393 (1992); State v. Kates, 185 N.J. Super. 226, 227-28 (Law Div. 1982). A prior uncounseled conviction for a nonindictable offense is not an offense for purposes of enhanced sentencing. State v. Garcia, 186 N.J. Super. 386, 389 (Law Div. 1982).

V. PROBATION, SPLIT SENTENCES AND SUSPENDED

SENTENCES

In certain cases, the sentencing court may impose a sentence of probation, a split sentence, or a suspended sentence (see sections A and C). If the defendant violates a term of the sentence, the court must resentence the defendant on the original charge and must impose a sentence for any violation that constitutes an offense (see sections B and C).

A. Probation, Split Sentences and Suspended Sentences: Statutory Provisions

1. Statutory Authority for Probation. N.J.S.A. 2C:43-2(b)(2) provides that a court may impose a sentence of probation, except as provided in N.J.S.A. 2C:43-2(g). N.J.S.A. 2C:43-2(g) prohibits the court from imposing 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); or
 A violation of a special sentence of community
supervision for life (N.J.S.A. 2C:43-6.4(d)).
2. Duration of Probation. A period of probation shall be "not less than 1 year nor more than 5 years." N.J.S.A. 2C:45-2(a).

3. Statutory Authority for a Split Sentence. N.J.S.A. 2C:43- 2(b)(2) provides that the court may impose as a condition of probation a term of incarceration. This type of probation is commonly referred to as a split sentence. If the defendant was convicted of a crime, the jail term may not exceed 364 days. N.J.S.A. 2C:43-2(b)(2). If the defendant was convicted of a disorderly persons offense, the jail term may not exceed 90 days. Ibid.

4. Statutory Authority for a Suspended Sentence. N.J.S.A. 2C:43-2(b) authorizes the court to suspend a sentence.

Duration of a Suspended Sentence. Pursuant to N.J.S.A. 2C:45-2(a), a suspended sentence shall not "exceed the maximum term which could have been imposed or more than 5 years whichever is lesser."

5. Offenses That Preclude Suspension of Sentence and Noncustodial Terms.

(a) Luring or Enticing a Child. N.J.S.A. 2C:13-6(f) prohibits the court from suspending a sentence and from imposing a noncustodial term against anyone convicted of luring or enticing a child. N.J.S.A. 2C:13-6(d) and (e) have the same requirement for repeat offenders (subsection (d)) and persons with certain prior convictions (subsection (e)).

(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. N.J.S.A. 2C:13-7(d) and (e) have the same requirement for repeat offenders (subsection (d)) and persons with certain prior convictions (subsection (e)).

(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) Arson. N.J.S.A. 2C:17-1(e) prohibits the court from suspending a sentence or imposing a noncustodial term if the defendant committed aggravated arson of a health care facility or physician's office. N.J.S.A. 2C:17-1(g) prohibits a court from suspending sentence or imposing a

noncustodial term if the targeted structure was a place of worship.

(e) Leader of a Cargo Theft Network. N.J.S.A. 2C:20- 2.4(e) prohibits the court from imposing a noncustodial sentence and from suspending sentence for a second or subsequent offense of leader of a cargo theft network.

(f) Theft From a Cargo Carrier. N.J.S.A. 2C:20-2.6(c) prohibits the court from imposing a noncustodial sentence and from suspending sentence against a person convicted of a second or subsequent offense of theft from a cargo carrier.

(g) 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."

(h) Drug Tampering. N.J.S.A. 2C:40-17(c) prohibits the court from suspending the sentence or imposing a noncustodial term on a health care professional or agent who "knowingly tampers with a cosmetic, drug or food product."

6. Authorized Conditions of Probation and Suspended Sentences.

N.J.S.A. 2C:45-1(a) provides that the court may place "such reasonable conditions" on a probation sentence or a suspended sentence "as it deems necessary to insure that" the defendant "will lead a law-abiding life." Authorized conditions include, N.J.S.A. 2C:45-1(b) to (g):

 Supporting dependents;
 Continued employment;
 Medical or psychiatric treatment;
 Vocational training or course of study;

 Maintaining certain residence;
 Refraining from frequenting certain places;
 Refraining from possessing a weapon;
 Maintaining residence within the jurisdiction;
 Regularly reporting to a probation officer;
 Allowing access to the defendant's home;
 Payment of a fine, fee, assessment and restitution;
 Community service;
 Restricted internet access and computer
examinations; and
 Any other condition reasonably related to rehabilitation.
7. Imposing Sentence in the Context of Multiple Offenses. The following rules apply when imposing sentence for multiple offenses or when the defendant is serving a sentence for another offense at the time of sentencing.

(a) Probation Prohibited In Certain Cases. N.J.S.A. 2C:44-5(f) instructs that when a court imposes sentence on a defendant who is already serving a sentence for an offense "committed prior to the former offense," the court may not impose a term of probation, "except as authorized by N.J.S.A. 2C:43-2(b)(2)" (the split sentence provision). N.J.S.A. 2C:44-5(f)(1).

(b) Concurrent and Consecutive Terms. "Multiple periods of suspension or probation shall run consecutively, unless the court" orders otherwise. N.J.S.A. 2C:44-5(f)(2).

(i) Sentence of One Year or More. "When a sentence of imprisonment in excess of one year is imposed, the service of such sentence shall satisfy a suspended sentence on another count or prior suspended sentence or sentence to probation, unless the suspended

sentence or probation has been violated in which case any imprisonment for the violation shall run consecutively." N.J.S.A. 2C:44-5(f)(3).

(ii) Sentence of One Year or Less. "When a sentence of imprisonment of one year or less is imposed, the period of a suspended sentence on another count or a prior suspended sentence or sentence to probation shall run during the period of such imprisonment, unless the suspended sentence or probation has been violated in which case any imprisonment for the violation shall run consecutively." N.J.S.A. 2C:44-5(f)(4).

8. Modifications of Probation and Suspended Sentence. On application of a probation officer or the defendant, or on its own initiative, the court may modify the terms of probation or a sentence suspension and may add conditions to the sentence. N.J.S.A. 2C:45-2(b). "The court shall eliminate any requirement that imposes an unreasonable burden on the defendant." Ibid.

9. Extension of Probation and Suspended Sentence. If the defendant has not satisfied a fine, penalty, or restitution at the end of the probationary or suspended sentence term, the court may extend the sentence for an additional period not to exceed a period authorized by N.J.S.A. 2C:45-2(a). N.J.S.A. 2C:45-2(c).

10. Discharge of Probation and Suspended Sentence. On application of the defendant or a probation officer, or on its own initiative, the court may discharge the defendant from probation or a suspended sentence "at any time." N.J.S.A. 2C:45-2(a).

B. 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.

(g) Young Adult Offender Sentencing. The Baylass guidelines applicable to ordinary sentences "are not wholly applicable" to a young adult offender indeterminate sentence because unlike ordinary sentences, the purpose of a young adult offender sentence is to rehabilitate, not to punish. State v. Hannigan, 408 N.J. Super. 388, 393 (App. Div. 2009).

VI. AGGRAVATING AND MITIGATING FACTORS

In setting a term of imprisonment, the court must qualitatively weigh the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) (see section A). The term of imprisonment should be proportional to the weight assigned to the factors. Sections B through D discuss case law regarding the factors.

A. The Aggravating and Mitigating Factors: Statutory Provisions

1. The Statute Listing Aggravating Factors. N.J.S.A. 2C:44- 1(a) provides for the following aggravating factors:

(1) The "nature and circumstances of the offense" and the defendant's role in the offense, including whether the defendant committed it "in an especially heinous, cruel, or depraved manner";

(2) The "gravity and seriousness of harm" to the victim, "including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;

(3) The risk of reoffending;

(4) Whether the defendant violated public trust;

(5) Whether the defendant was involved in organized crime;

(6) The "defendant's prior criminal record and the seriousness of the offenses";

(7) Whether the defendant committed the offense for payment;

(8) Whether the defendant committed the offense against a law enforcement officer, a public servant, or a sports official;

(9) The "need for deterring the defendant and others from violating the law";

(10) Whether the offense involved fraud against the state or a state department;

(11) Whether imposition of a fine, penalty or order of restitution alone would be perceived as a "cost of doing business";

(12) Whether the defendant knew or should have known the victim was disabled or 60 years of age or older; and

(13) Whether the defendant used a stolen vehicle during the crime;

(14) Whether the offense involved an act of domestic violence, as defined in N.J.S.A. 2C:25-19(a), in the presence of a child under 16 years of age; and

(15) Whether the offense involved an act of domestic violence, as defined in N.J.S.A. 2C:25-19(a), "and the defendant committed at least one act of domestic violence on more than one occasion."

2. The Statute Listing Mitigating Factors. N.J.S.A. 2C:44-1(b) provides the following mitigating factors:

(1) The defendant "neither caused nor threatened serious harm";

(2) The defendant "did not contemplate that his [or her] conduct would cause or threaten serious harm";

(3) The defendant "acted under a strong provocation";

(4) "[S]ubstantial grounds" tend to "excuse or justify the defendant's conduct";

(5) The victim "induced or facilitated" the crime;

(6) The defendant compensated the victim or will participate in community service;

(7) The defendant lacks a history of delinquency or criminal activity;

(8) The defendant's conduct was the result of circumstances unlikely to recur;

(9) The defendant's character and attitude indicate an unlikelihood of reoffending;

(10) The defendant "is particularly likely to respond" to probation;

(11) Imprisonment "would entail excessive hardship to" the defendant or his or her dependents;

(12) The defendant cooperated with law enforcement; and

(13) The defendant is a youthful offender and "was substantially influenced by" a more mature person.

B. Aggravating Factors: Case Law

1. Cruelty. The court may consider the cruel manner of an attack, State v. Soto, 340 N.J. Super. 47, 71-72 (App. Div.), certif. denied, 170 N.J. 209 (2001), and the intent to inflict pain or suffering on the victim. State v. O'Donnell, 117 N.J. 210, 217-18 (1989).

2. Nature of the Offense. "[A]n application of aggravating factor one must be premised upon factors independent of the elements of the crime and firmly grounded in the record." State v. Fuentes, 217 N.J. 57, 63 (2014). See also State v. Miller, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 18-19) (the court double counted in finding aggravating factor one because defendant's crime of possessing numerous pornographic images of very young children was no more heinous, cruel or deprived than the offense was by definition).

3. Harm to the Victim. When considering the harm a defendant caused to a victim for purposes of aggravating factor two, N.J.S.A. 2C:44-1(a)(2), a court should engage in a "pragmatic assessment of the totality of harm inflicted." State v. Carey, 168 N.J. 413, 426 (2001). Defendants who purposely or recklessly inflict substantial harm receive more severe sentences. Id. at 426.

4. Harm to Non-Victims. For purposes of N.J.S.A. 2C:44-1(a)(2), the harm to the victim is limited to victims of the crime for which the defendant is being sentenced. State v. Lawless, 214 N.J. 594, 613 (2013). As part of the "nature and circumstances of the offense" (aggravating factor one), the court may consider the harm caused to a non-victim of the crime for which the defendant is being sentenced. Id. at 615.

5. Vulnerability. The "vulnerability" referred to in aggravating factor two, N.J.S.A. 2C:44-1(a)(2), is not limited to the intrinsic condition of the victim, and includes any reason that renders the victim substantially incapable of resistance. State v. O'Donnell, 117 N.J. 210, 218-19 (1989).

6. Risk of Reoffending.
(a) Denial of Responsibility. The defendant's denial of responsibility supports a finding under aggravating factor three that the defendant is at risk of reoffending. State v. Carey, 168 N.J. 413, 427 (2001).
(b) Failure to Appear at Sentencing. The defendant's failure to appear at the sentencing hearing may be relevant to defendant's risk of reoffending and to the need for deterrence. State v. Subin, 222 N.J. Super. 227, 237-40 (App. Div.), 111 N.J. 580 (1988).
Seriousness of the Offense and Public Trust.

"Depreciat[ing] the seriousness of the defendant's offense," N.J.S.A. 2C:44-1(a)(4), deals only with violations of public trust under Chapters 27 and 30, or breaches of a position of trust or confidence. State v. Mosch, 214 N.J. Super. 457, 463 (App. Div. 1986), certif. denied,. denied, 107 N.J. 131 (1987).

8. Organized Crime. The "organized criminal activity" aspect of aggravating factor five, N.J.S.A. 2C:44-1(a)(5), applies if there is proof that the defendant is involved in such activity, even though the offenses for which he or she has been convicted have no relationship to that activity. State v. Merlino, 208 N.J. Super. 247, 259 (Law Div. 1984), aff'd in part, vacated in part on other grounds, 208 N.J. Super. 147 (App. Div. 1985), certif. denied,. denied, 103 N.J. 460 (1986).

9. Prior Driving While Under the Influence (DWI). Prior convictions for DWI may not be considered an aggravating factor

under N.J.S.A. 2C:44-1(a)(6), because DWI does not constitute an "offense" under N.J.S.A. 2C:1-14(k). However, they may be considered as part of the defendant's overall personal history. State v. Lawless, 423 N.J. Super. 293, 305 (App. Div. 2011), aff'd, 214 N.J. 594 (2013); State v. Radziwil, 235 N.J. Super. 557, 575-76 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990).

10. Juvenile and Driving Records. Although aggravating factor six refers to a defendant's "prior criminal record," the court may consider a defendant's juvenile record and driving record in assessing that factor. State v. Pindale, 249 N.J. Super. 266, 288 (App. Div. 1991).

11. Lack of Prior Record and Need to Deter. In an appropriate case, the court may find a need to deter (aggravating factor nine) even though the defendant has no prior record. State v. Fuentes, 217 N.J. 57, 80 (2014).

12. Public Safety and Deterrence. "The need for public safety and deterrence increase proportionally with the degree of the offense." State v. Carey, 168 N.J. 413, 426 (2001).

13. Specific and General Deterrence. Aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), includes specific and general deterrence. State v. Fuentes, 217 N.J. 57, 78 (2014). It requires a qualitative analysis of the risk of recidivism based not only on a prior record, but on an evaluation of the defendant as an individual. Ibid.

14. Lack of Personal Deterrence. In the absence of a need for personal deterrence, the need for general deterrence is lessened. State v. Case, 220 N.J. 49, 68 (2014); State v. Jarbath, 114 N.J. 394, 405 (1989). See also State v. Gardner, 113 N.J. 510, 520 (1989) (providing that "general deterrence alone is insufficient to overcome the presumption against imprisonment"); State v. Powell, 294 N.J. Super. 557, 567 (App. Div. 1996) (explaining that the need for general deterrence alone is insufficient to prevent downgrading).

15. Deterrence and Severity of Harm. "[D]emands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense." State in Interest of C.A.H., 89 N.J. 326, 337 (1982).

16. Lack of Remorse. A need to deter a defendant from similar conduct in the future, N.J.S.A. 2C:44-1(a)(9), may be supported

by a defendant's lack of remorse and consistent denial of wrongdoing. State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991).

17. Risk of Recidivism, Prior Record and Need to Deter.

Implicit in the findings on a defendant's risk of reoffending, N.J.S.A. 2C:44-1(a)(3), the seriousness and extent of a defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6), and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9), are "determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history." State v. Thomas, 188 N.J. 137, 155 (2006).

18. Cost of Doing Business. Pursuant to N.J.S.A. 2C:44-1(a)(11), a finding that a fine or other monetary penalty would be perceived as a cost of doing business, applies only when the sentencing judge is balancing a noncustodial term against a prison sentence. State v. Dalziel, 182 N.J. 494, 502 (2005). Hence, unless the court is being asked to overcome the presumption of imprisonment, this factor should not be used when sentencing for first and second degree crimes. Ibid.

C. Mitigating Factors: Case Law

1. Serious Harm. Distribution of cocaine may constitute conduct that causes and threatens serious harm, so as to render inapplicable mitigating factors one, N.J.S.A. 2C:44-1(b)(1), (defendant did not cause serious harm), and two N.J.S.A. 2C:44- 1(b)(2) (defendant did not contemplate causing serious harm). State v. Tarver, 272 N.J. Super. 414, 434-35 (App. Div. 1994).

2. Strong Provocation. "Strong provocation" under N.J.S.A. 2C:44-1(b)(3) refers to the conduct of the victim towards the actor, not to the defendant's own mental compulsions. State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986).

3. Addiction May Not Excuse Conduct. Drug or alcohol dependency or intoxication does not necessarily establish substantial grounds tending to excuse or justify the defendant's conduct (mitigating factor four). State v. Ghertler, 114 N.J. 383, 390 (1989); State v. Setzer, 268 N.J. Super. 553, 567-68 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

4. History of Abuse Perpetrated by the Victim. A history of continuous physical, sexual, and psychological abuse perpetrated by the victim against the defendant may be highly relevant in determining whether the following mitigating factors apply: N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate the conduct would cause or threaten serious harm); N.J.S.A. 2C:44- 1(b)(4) (substantial grounds tending to excuse or justify conduct); and N.J.S.A. 2C:44-1(b)(5) (the victim induced or facilitated the commission of the crime). State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002).

5. Lack of Prior Record. A court may give minimal weight to a defendant's lack of a prior record, N.J.S.A. 2C:44-1(b)(7), so long as the finding is based on the record and is sufficiently explained by the court. State v. Soto, 340 N.J. Super. 47, 72 (App. Div.), certif. denied, 170 N.J. 209 (2001).

6. Prior Arrests. A court does not abuse its discretion by finding mitigating factor seven (lack of prior record) when the defendant has prior arrests and no prior conviction. State v. Rice, 425 N.J. Super. 375, 382 (App. Div.), certif. denied, 212 N.J. 431 (2012).

7. Specific Deterrence Not Necessary. Where N.J.S.A. 2C:44- 1(b)(8) (conduct was result of circumstances unlikely to recur), N.J.S.A. 2C:44-1(b)(9) (defendant is unlikely to commit another crime), and N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond to probationary treatment) apply, the need for specific deterrence is essentially negated. State v. Briggs, 349 N.J. Super. 496, 505 (App. Div. 2002).

8. Medical Condition and Excessive Hardship. A defendant's medical condition, established by medical evidence, may support a finding that imprisonment would entail excessive hardship, N.J.S.A. 2C:44-1(b)(11), if the condition is extraordinary, idiosyncratic or terminal. State v. M.A., 402 N.J. Super. 353, 371-72 (App. Div. 2008).

9. Confession and Cooperation with Law Enforcement. It is questionable whether a confession qualifies as cooperation under N.J.S.A. 2C:44-1(b)(12), especially where the confession does not identify other perpetrators or assist in solving other crimes. State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008).

10. Youth and Substantial Influence. Youth may be considered a mitigating factor if the defendant was "substantially influenced by another person more mature than the defendant," N.J.S.A. 2C:44-1(b)(13), but this factor may not apply where the defendant participated in a premeditated, cold-blooded, execution-style murder. State v. Torres, 313 N.J. Super. 129, 162 (App. Div.), certif. denied, 156 N.J. 425 (1998).

11. Mental Condition and Rejected Insanity Defense. A sentencing court may consider a defendant's mental condition in assessing mitigating factors, even if the jury rejected the defendant's insanity defense. State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998).

12. Mitigating Factors Raised by the Defendant. The sentencing court must consider and issue findings on mitigating factors raised by the defendant. State v. Case, 220 N.J. 49, 68 (2014). "[M]itigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record." State v. Blackmon, 202 N.J. 283, 297 (2010). Those that are "amply based in the record . . . , must be found." State v. Dalziel, 182 N.J. 494, 504 (2005). But see State v. Miller, 205 N.J. 109, 130 (2011) (agreeing with the Appellate Division's holding that a remand for clarification is not necessary when the judge's reasons for rejecting mitigating factors can be deduced from the sentencing record); State v. Bieniek, 200 N.J. 601, 609 (2010) (holding that a trial court need not "explicitly reject each and every mitigating factor argued by a defendant").

D. Case Law Applicable to Both Types of Factors

1. Underlying Policy of the Factors. The purpose of the aggravating and mitigating factors is "to insure that sentencing is individualized without being arbitrary." State v. Sainz, 107 N.J. 283, 288 (1987). "Careful application" of the factors promotes uniformity in sentencing. State v. Cassady, 198 N.J. 165, 179-80 (2009).

2. Qualitative Weighing. The sentencing court qualitatively, not quantitatively, weighs and analyzes the aggravating and mitigating factors. State v. Case, 220 N.J. 49, 65 (2014); State v. Fuentes, 217 N.J. 57, 72 (2014); State v. Kruse, 105 N.J. 354, 363 (1987). "The factors are not interchangeable on a one-to-one basis. The proper weight to be given to each is a

function of its gravity in relation to the severity of the offense." State v. Roth, 95 N.J. 334, 368 (1984).

3. Proportionality. "[W]hen the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Natale II, 184 N.J. 458, 488 (2005)).

4. Factors in Equipoise. Where the aggravating and mitigating factors are in equipoise, a term in the middle of the sentencing range will be appropriate. State v. Fuentes, 217 N.J. 57, 73 (2014); State v. Natale II, 184 N.J. 458, 488 (2005).

5. Double Counting Prohibited. An element of the offense may not be cited as an aggravating factor to increase punishment. State v. Fuentes, 217 N.J. 57, 74-75 (2014); State v. Kromphold, 162 N.J. 345, 353 (2000); State v. Yarbough, 100 N.J. 627, 633 (1985), cert. denied, 475 U.S. 10l4, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), as amended by N.J.S.A. 2C:44-5a. The same prohibition applies to mitigating factors. State v. Teat, 233 N.J. Super. 368, 372-73 (App. Div. 1989) (holding that a trial judge may not consider "strong provocation" as a mitigating factor where the jury already considered it in reducing murder to manslaughter). State v. Kromphold, 162 N.J. 345, 356 (2000) (prohibiting the sentencing court from citing the defendant's level of intoxication as an aggravating factor when a jury considered the defendant's excessive intoxication in finding "recklessness" to convict the defendant of second degree aggravated assault).

(a) Nuanced Analysis. The sentencing court must provide a "nuanced analysis of the defendant's offense, clearly explained so that an appellate court may be certain that" the lower court did not double-count the elements of the offense. State v. Fuentes, 217 N.J. 57, 76 (2014).

(b) Multiple Charges. Where a court sentences on multiple charges, facts that establish elements of one charge may be used to establish aggravating factors for another charge without violating the rule against double counting. State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988).

(c) Multiple Deaths by Auto. In sentencing a defendant on multiple counts of death by automobile, the sentencing court may consider as an aggravating factor the number of deaths caused, State v. Travers, 229 N.J. Super. 144, 154 (App. Div. 1988), and whether surviving victims sustained injuries, State v. Carey, 168 N.J. 413, 425 (2001).

(d) Possession of an Excessive Amount of Drugs. The rule against double counting is not violated when a court cites as an aggravating circumstance the defendant's having possessed far more drugs than was required to constitute the crime. State v. Ascencio, 277 N.J. Super. 334, 336-37 (App. Div. 1994), certif. denied, 140 N.J. 278 (1995); State v. Varona, 242 N.J. Super. 474, 490-91 (App. Div.), certif. denied, 122 N.J. 386 (1990).

(e) Multiple Injuries. Multiple life-threatening injuries to one victim may be considered an aggravating factor when only one life-threatening injury was required to satisfy an element of the crime. State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992).

(f) Injury Inflicted and Not an Element of the Crime.

Because a conviction for attempted murder does not require "injury" to the victim, a court may consider the extent of any injury as an aggravating factor. State v. Noble, 398 N.J. Super. 574, 599 (App. Div.), certif. denied, 195 N.J. 522 (2008).

6. Inconsistent Findings. A court may find aggravating and mitigating factors that appear internally inconsistent, so long as the findings are "supported by a reasoned explanation" and "grounded in competent, credible evidence in the record." State v. Case, 220 N.J. 49, 67 (2014) (holding that while aggravating factor three (risk defendant will reoffend) "stood as counterpoise" to mitigating factor seven (no prior record), the two factors could coexist in a case, so long as they were based on the evidence). See also State v. Fuentes, 217 N.J. 57, 63 (2014) (explaining that "any determination that aggravating factor nine and mitigating factor eight are applicable to the same case should be specifically explained").

7. Requisite Findings."[C]ritical to the sentencing process and appellate review is the need for the sentencing court to explain clearly why an aggravating or mitigating factor presented by the parties was found or rejected and how the

factors were balanced to arrive at the sentence." State v. Case, 220 N.J. 49, 66 (2014) (citing State v. Fuentes, 217 N.J. 57, 73 (2014)). The findings "must be based on the evidence." State v. Case, 220 N.J. 49, 64 (2014) (concluding that the sentencing court based its finding of aggravating factor three "not on credible evidence in the record but apparently on the unfounded assumption that defendant had pursued minors through the Internet on previous occasions"). "Speculation and suspicion must not infect the sentencing process." State v. Case, 220 N.J. 49, 64 (2014). The court's "explanation should thoroughly address the factors at issue." State v. Fuentes, 217 N.J. 57, 73 (2014). Inconsistent and unclear findings on the factors will require a remand, even though a remand may not result in a lesser sentence than the one initially imposed. State v. Sene, 443 N.J. Super. 134, 145 (App. Div. 2015), certif. denied, 224 N.J. 282 (2016).

8. Emphasis on Certain Factors. The sentencing court must "sufficiently explain its reason for placing 'particular emphasis'" on an aggravating factor. State v. Case, 220 N.J. 49, 68 (2014). The court is also "required to explain the weight it assigned to the factors it found." Id. at 69.

9. Findings Restricted to Listed Factors. "[T]he sentencing court lacks the power to import aggravating factors not contained within the Criminal Code's sentencing guidelines." State v. Thomas, 356 N.J. Super. 299, 310 (App. Div. 2002). But see State v. Taylor, 226 N.J. Super. 441, 454 (App. Div. 1988) (N.J.S.A. 2C:44-1(a) does not limit sentencing judges to the thirteen specified aggravating factors).

10. Juror Participation Prohibited. " The jury plays no role at sentencing in assisting the judge to identify aggravating and mitigating factors." State v. Mahoney, 444 N.J. Super. 253, 260 (App. Div. 2016). Jurors "have no information relevant to establishing aggravating and mitigating factors other than what they and the judge learned through the evidence adduced at the trial. The only other information they have is derived from their mental impressions developed during the deliberative process, which cannot be revealed." Id. at 260-61.

11. Considerations as of the Date of Sentencing. "[A] defendant should be assessed as he stands before the court on the day of sentencing"; thus, "the sentencing court must consider a defendant's relevant post-offense conduct in weighing aggravating and mitigating factors." State v. Jaffe, 220 N.J.

114, 116 (2014) (citing State v. Randolph, 210 N.J. 330, 354 (2012)).

12. Resentencing After Appeal. "[W]hen 'reconsideration' of sentence or 'resentencing' is ordered after appeal, the trial court should view defendant as he stands before the court on that day unless the remand order specifies a different and more limited resentencing proceeding such as correction of a plainly technical error or a directive to the judge to view the particular sentencing issue from the vantage point of the original sentencing." State v. Randolph, 210 N.J. 330, 354 (2012).

VII. PAROLE INELIGIBILITY

In setting a sentence, the court must consider whether the convictions warrant a period of parole ineligibility. Generally, the court may exercise its discretion to impose a parole disqualifier if the facts so warrant (see section A). However, if the offense falls under the No Early Release Act (see sections B and D), or if the Legislature has otherwise mandated a parole disqualifier in a criminal statute (see section C), the court has no choice but to impose the minimum term required by statute. More than one statute may mandate a parole disqualifier for an offense. Section E discusses case law on parole ineligibility.

Note: 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. "When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury" and found beyond a reasonable doubt. Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2162, 186 L. Ed. 2d 314, 329 (2013). Accord State v. Grate, 220 N.J. 317, 335 (2015) (finding unconstitutional under Alleyne the N.J.S.A. 2C:39-5(i) requirement that the court must impose a period of parole ineligibility if it finds a substantial likelihood that the defendant was involved in organized criminal activity). 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)).

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").

The statutes discussed in this chapter are subject to the foregoing Sixth Amendment requirements.

A. Parole Ineligibility Imposed at the Court's Discretion: Statutory Provisions

Statutory Authority for Discretionary Parole Disqualifiers.

N.J.S.A. 2C:43-6(b) instructs that "the court may fix a minimum term not to exceed one-half of" the sentence imposed when:

 "the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors," set forth in N.J.S.A. 2C:44-1(a) and (b); or
 the court finds a substantial likelihood that the defendant was involved in organized criminal activity (aggravating factor five, N.J.S.A. 2C:44-1(a)(5)).
B. Mandatory Parole Ineligibility Under The No Early Release Act (NERA): Statutory Provisions
Note: In 2001 the Legislature substantially amended NERA, thus rendering moot a significant amount of case law interpreting the former version of the statute. See Cannel, New Jersey Criminal Code Annotated, comments 1 and 3 on N.J.S.A. 2C:43-7.2 at 1138- 43 (2016-2017); Pressler & Verniero, Current N.J. Court Rules, comment 1.3.5 on R. 3:21-4 at 1133-35 (2017).
1. The NERA Mandatory Parole Disqualifier. N.J.S.A. 2C:43- 7.2(a) requires the court fix "a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole," for the following first and second degree crimes:
 Murder (N.J.S.A. 2C:11-3); 76

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

(a) The Parole Disqualifier Applies to All Types of Terms.

The NERA minimum term is required whether the sentence is imposed as an ordinary term of imprisonment (N.J.S.A. 2C:43-6), an extended term (N.J.S.A. 2C:43-7), a term for murder (N.J.S.A. 2C:11-3), or a term pursuant to "any other provision of law, and shall be calculated based upon the sentence of incarceration actually imposed." N.J.S.A. 2C:43-7.2(b).

(b) Relation to Other Parole Disqualifiers. In the event the NERA and another statute require two different periods of parole ineligibility, NERA "shall not be construed or applied to reduce the time that must be served." N.J.S.A. 2C:43-7.2(b).

(c) A Life Sentence. "Solely for the purpose of calculating the minimum term of parole ineligibility . . . a sentence of life imprisonment shall be deemed to be 75 years." N.J.S.A. 2C:43-7.2(b).

2. The NERA Mandatory Parole Supervision Period. In addition to the 85% period of parole ineligibility, the court must also impose a five-year term of parole supervision on a first degree crime, and a three years of parole supervision for a second degree crime, which shall commence upon the defendant's release from incarceration. N.J.S.A. 2C:43-7.2(c).

(a) Supervision by the Bureau of Parole. During the term of parole supervision, the defendant remains in the legal custody of the Department of Corrections and is supervised by the Bureau of Parole, subject to the provisions of N.J.S.A. 30:4-123.51b. N.J.S.A. 2C:43-7.2(c).

(b) Parole Violation. If the defendant violates a condition of parole, he or she can be re-incarcerated for the balance of the five-year or three-year parole term. N.J.S.A. 30:4-123.51b(a).

3. Notice. According to Rule 3:21-4(f), notice to impose a NERA sentence must be filed with the court and served on the defendant within fourteen days of entry of a plea or return of the verdict, but the court may extend the time for good cause.

C. Non-NERA Mandatory Parole Disqualifiers: Statutory Provisions

1. Murder. A murder conviction requires one of the following two sentences:

(a) Thirty-Year Minimum. A defendant must serve between thirty years to life imprisonment for first degree murder with a thirty-year period of parole ineligibility. N.J.S.A. 2C:11-3(b)(1). The thirty-year minimum term also applies to a conviction for an attempt or conspiracy to murder five or more persons. N.J.S.A. 2C:5-4(a).

(b) Life Without Parole. If the following circumstances apply, the defendant "shall be sentenced" to life imprisonment without the possibility of parole (N.J.S.A. 2C:11-3(b)(4)):

(i) The victim was a law enforcement officer murdered while performing official duties or because of his or her official status, N.J.S.A. 2C:11-3(b)(2); or

(ii) The victim was less than fourteen years old and the murder was carried out during a sexual assault (N.J.S.A. 2C:14-2) or criminal sexual contact (N.J.S.A. 2C:14-3), N.J.S.A. 2C:11-3(b)(3); or

2. Death

by Vehicular Homicide. N.J.S.A. 2C:11-5(b)(1) requires a period of parole ineligibility between one-third and one-half of the sentence imposed, or three years, whichever is greater if the defendant caused death while operating a vehicle under the influence of alcohol or narcotics, or with a blood alcohol level prohibited by N.J.S.A. 39:4-50, or while his or her driver's license was revoked or suspended. According to

N.J.S.A. 2C:11-5(b)(2), the prosecutor must establish at a separate hearing, which may occur at the time of sentencing, the requisite fact for imposing a mandatory minimum sentence, and the court must find the fact by a preponderance of the evidence.

3. Third Degree Reckless Endangerment. N.J.S.A. 2C:12-2(b)(2) requires a parole ineligibility period of eighteen months for a third degree crime, or six months for a fourth degree crime, if the defendant enticed another with a poisonous, disorienting or otherwise harmful substance. Note: As of January 11, 2016, this statute was repealed and replaced by N.J.S.A. 2C:24-7.1 (Endangering Another Person), which does not impose a parole ineligibility period.

4. 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).

5. 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).

6. 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, then the parole disqualifier provision is inapplicable. N.J.S.A. 2C:13-6(e).

7. 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).

8. 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).

9. Human Trafficking. N.J.S.A. 2C:13-8(d) mandates a twenty- year term of parole ineligibility.

10. 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.

11. Aggravated Sexual Assault of a Child. N.J.S.A. 2C:14-2(a) 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."

12. 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 contact), a minimum period of parole ineligibility of at least

five years on an ordinary sentence (i.e., a non-extended term sentence).

13. Carjacking. N.J.S.A. 2C:15-2(b) requires a five-year period of parole ineligibility.

14. Arson Against a Place of Worship. N.J.S.A. 2C:17-1(g) requires a fifteen year period of parole ineligibility if the targeted structure was a place of public worship.

15. Leader of a Cargo Theft Network (Repeat Offender). N.J.S.A. 2C:20-2.4(e) requires a mandatory minimum term of one-third to one-half of the sentence imposed for a subsequent offense under N.J.S.A. 2C:20-2.4 (leader of cargo theft network).

16. Theft From a Cargo Carrier (Repeat Offender). N.J.S.A. 2C:20-2.6(c) mandates a period of parole ineligibility of one- third to one-half of the sentence imposed.

17. First Degree Computer Theft. N.J.S.A. 2C:20-25(g) requires a period of parole ineligibility of one-third to one-half of the sentence imposed. N.J.S.A. 2C:20-25(h) provides that the court shall consider it an aggravating circumstance if the victim was eighteen years old or younger.

18. Computer Theft Against the Government. N.J.S.A. 2C:20-25(h) mandates a parole disqualifier of one-third to one-half of the sentence imposed.

19. Unauthorized Access of Computer Data. N.J.S.A. 2C:20-31(b) mandates a parole ineligibility term of one-third to one-half of the sentence imposed.

20. Financial Facilitation of Criminal Activity. N.J.S.A. 2C:21-27(a) mandates a parole ineligibility term of one-third to one-half of the sentence imposed.

21. 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.

22. Third Degree Hindering Apprehension or Prosecution.

N.J.S.A. 2C:29-3(a) requires at least a one-year term of imprisonment with a one-year parole disqualifier when the defendant hindered apprehension or prosecution of a violation of Title 39 or Chapter 33A of Title 17 by giving false information or concealing evidence, knowing that the conduct violated N.J.S.A. 2C:11-5.1 (leaving the scene of a motor vehicle accident that results in the death of another). N.J.S.A. 2C:29- 3(a) (hindering apprehension or prosecution of another); N.J.S.A. 2C:29-3(b) (hindering apprehension or prosecution of one's self).

23. Harm to a Law Enforcement Animal. N.J.S.A. 2C:29-3.1(a) requires a five-year period of parole ineligibility.

24. Escape From an Institution. N.J.S.A. 2C:29-6(a)(1) and (2) require a period of parole ineligibility of three years.

25. Leader of a Narcotics Trafficking Network.
N.J.S.A. 2C:35-3 requires the court impose a life sentence with a twenty-five-year period of parole ineligibility. 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.

26. 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. 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.

27. 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. 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.

28. 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. 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.

29. 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, then 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.

(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 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).

Note: This statute is also subject to the N.J.S.A. 2C:35- 12 waiver provision, discussed further in Chapter XIV on drug offender sentencing.

30. Drug Distribution to a Minor or a Pregnant Female.

N.J.S.A. 2C:35-8 requires the court 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: This

statute is subject to the N.J.S.A. 2C:35-12 waiver provision, discussed further in Chapter XIV on drug offender sentencing.

31. Terrorism. N.J.S.A. 2C:38-2(b)(2) requires a term of life imprisonment without the possibility of parole if the terrorism resulted in death. If death did not occur, then the court must impose a thirty-year period of parole ineligibility. N.J.S.A. 2C:38-2(b)(1).

32. Producing or Processing Chemical, Nuclear, Biological or Radiological Weapons. N.J.S.A. 2C:38-3(a)(2) requires a term of life imprisonment without the possibility of parole if the crime resulted in death. If death did not occur, then the court must impose a thirty-year period of parole ineligibility. N.J.S.A. 2C:38-3(a)(1).

33. Possession of a "Community Gun" for an Unlawful Purpose.

N.J.S.A. 2C:39-4(a)(2) requires a period of parole ineligibility of one-half of the sentence imposed, or three years, whichever is longer.

34. Certain Persons Prohibited from Possessing a Firearm.

N.J.S.A. 2C:39-7(b)(1) requires the sentence include a five-year parole-disqualifier if the defendant purchased, owned, possessed or controlled a firearm and has a prior conviction for any of the following:

 Aggravated assault (N.J.S.A. 2C:12-1(b));  Arson (N.J.S.A. 2C:17-1);
 Burglary (N.J.S.A. 2C:18-2);
 Escape (N.J.S.A. 2C:29-5);

 Extortion (N.J.S.A. 2C:20-5);  Homicide (N.J.S.A. 2C:11-2);
 Kidnapping (N.J.S.A. 2C:13-1);  Robbery (N.J.S.A. 2C:15-1);

 Aggravated sexual assault (N.J.S.A. 2C:14-2(a)); 85

 Sexual assault (N.J.S.A. 2C:14-2(b));
 Bias intimidation (N.J.S.A. 2C:16-1);
 Endangering the welfare of a child (N.J.S.A. 2C:24-4);
 Stalking (N.J.S.A. 2C:12-10);
 A crime involving domestic violence (N.J.S.A. 2C:25-19);
 Certain controlled dangerous substance crimes (N.J.S.A. 2C:35-3 through N.J.S.A. 2C:35-6, N.J.S.A. 2C:35-7, or N.J.S.A. 2C:35-11);
 Possession of certain weapons and devices (N.J.S.A. 2C:39-3);
 Unlawful possession of a firearm, community gun, explosive, or destructive device (N.J.S.A. 2C:39-4); and
 Manufacturing, transporting, disposing of, and defacing certain weapons and dangerous instruments (N.J.S.A. 2C:39-9).
If the court imposes an extended term pursuant to N.J.S.A. 2C:43-7, then the parole disqualifier "shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater." N.J.S.A. 2C:39-7(b)(1).
35. Certain Persons Prohibited from Transferring a Firearm.
N.J.S.A. 2C:39-10(a)(4) requires a period of parole ineligibility of eighteen months be imposed against a licensed dealer who sold or transferred a firearm to a person knowing that person intended to transfer the firearm to a person who was disqualified from possessing a firearm under State or federal law. If the firearm was used in the commission of a crime, the parole disqualifier must be three years, rather than eighteen months. N.J.S.A. 2C:39-10(a)(4).
36. Transferring a Firearm to a Minor. N.J.S.A. 2C:39-10(e) requires a five-year period of parole ineligibility be imposed on anyone "who knowingly sells, gives, transfers, assigns or otherwise disposes of a firearm to a person who is under the age of eighteen years." However, N.J.S.A. 2C:43-6.2 provides that

upon request by 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 a Chapter 39 weapons offense.

37. Operating a Motor Vehicle With a Suspended License.

N.J.S.A. 2C:40-26(c) requires the court to impose a parole disqualifier of 180 days against a defendant convicted of operating a motor vehicle with a suspended license if (1) the license suspension resulted from a first violations 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 a breath test); and (2) the defendant "had previously been convicted of violating N.J.S.A. 39:3-40 while under suspension for that first offense."

38. Certain Crimes While in Possession of a Firearm (the Graves Act). N.J.S.A. 2C:43-6(c) mandates a period of parole ineligibility that is (a) either one-half of the sentence imposed or forty-two months, whichever is greater, for first through third degree enumerated offenses, or (b) eighteen months for a crime of the fourth degree. See Chapter XIII on Graves Act and assault weapons sentencing for further discussion.

39. Certain Crimes While in Possession of a Machine Gun or Assault Firearm. N.J.S.A. 2C:43-6(g) requires a parole ineligibility term of (a) ten years for a first or second degree enumerated crime, (b) five years for a third degree crime, or (c) eighteen months for a fourth degree crime if, while in the course of committing or attempting to commit the crime the defendant used or was in possession of a machine gun or assault firearm. See Chapter XIII on Graves Act and assault weapons sentencing for further discussion.

40. Assault While Fleeing Police. N.J.S.A. 2C:43-6(i) mandates a period of parole ineligibility between one-third and one-half of the sentence imposed.

41. Public Officers Convicted of Certain Crimes. N.J.S.A. 2C:43-6.5(a) requires the following terms of parole ineligibility be imposed against a public officer or employee convicted of a crime set forth in N.J.S.A. 2C:43-6.5(b): ten years (first degree crimes); five years (second degree crimes); two years (third degree crimes); one year (fourth degree crimes).

(a) Exception. Under circumstances discussed in N.J.S.A. 2C:43-6.5(c)(1) and (2) the court may waive or reduce the mandatory minimum term of imprisonment. The sentence does not become final for ten days in order to permit the State to appeal. N.J.S.A. 2C:43-6.5(c)(3).

(b) Guidelines. N.J.S.A. 2C:43-6.5(e) requires the Attorney General develop guidelines to ensure the uniform exercise of discretion in making waiver and reduction determinations. The guidelines are dated May 31, 2007, and can be found at www.nj.gov/oag/dcj (click on "Directives/Guidelines," then "Guidelines," then "Prosecutions of Public Officials").

D. NERA: Case Law

1. Purpose. The purpose of NERA is to protect society from the risks associated with violent offenders by increasing prison for the most serious offenders. State v. Friedman, 209 N.J. 102, 119-20 (2012). See also State v. Drake, 444 N.J. Super. 265, 278 (quoting State v. Thomas, 166 N.J. 560, 569 (2001), for the proposition: "NERA was enacted primarily because of New Jersey's alarmingly high rate of parolee recidivism")), certif. denied, 226 N.J. 213 (2016).

2. Crimes Subject to NERA. NERA applies to all of the crimes listed in N.J.S.A. 2C:43-7.2(d), including sexual assault 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).

3. NERA Is Mandatory. Failure to apply NERA to an enumerated crime renders the sentence illegal and requires a remand for resentencing. State v. Ramsey, 415 N.J. Super. 257, 271-72 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011); State v. Kearns, 393 N.J. Super. 107, 113 (App. Div. 2007).

4. Real-Time Consequences. Sentencing courts must consider the real-time consequences that NERA will have on a sentence. State v. Marinez, 370 N.J. Super. 49, 57-58 (App. Div.), certif. denied, 182 N.J. 142 (2004). A reviewing court will "consider the judge's evaluation of the aggravating and mitigating factors in that light." Id. at 58.

5. Real-Time Consequences and Plea Agreements. Under NERA's mandatory period of parole supervision, "the fixed period of a defendant's supervision may extend beyond the term of the original sentence." State v. Johnson, 182 N.J. 232, 240 (2005). A violation of probation "could subject [the] defendant to additional incarceration . . . that could make the custodial sentence, in the aggregate, far exceed the original sentence imposed." Ibid. A defendant must be informed of the consequences of being subject to this extended parole supervision when pleading guilty to a NERA offense. Id. at 241. See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:43-7.2 at 1138-43 (2016-2017) (explain that unlike other sentencing decisions that focus on the minimum term a defendant must serve, NERA's 85% parole ineligibility term and violation-of-parole provision turn the focus to the maximum term a defendant could serve).

6. Downgrading. Although an offense may be downgraded to the second degree for sentencing under N.J.S.A. 2C:44-1(f)(2), the defendant remains "sentenced for a crime of the first degree" for purposes of parole supervision under NERA. State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). See also State v. L.V., 410 N.J. Super. 90, 113 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010) (explaining that while the court downgraded the offenses to third degree crimes for purposes of sentencing, the court nonetheless had to sentence the defendant to a term of incarceration because she had pleaded guilty to second degree crimes that were subject to NERA).

7. Credits. Gap-time credit (N.J.S.A. 2C:44-5(b)(2)) may not reduce the NERA 85% parole ineligibility term. Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 426 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002). Similarly, commutation and work credits may not reduce the NERA mandatory minimum. State v. Webster, 383 N.J. Super. 432, 436-37 (App. Div. 2006), aff'd o.b., 190 N.J. 305 (2007). They may be applied towards the remaining 15% of a defendant's prison sentence under NERA. Ibid.

8. Accomplices and Co-Conspirators. NERA applies to accomplices, State v. Rumblin, 166 N.J. 550, 553-56 (2001), and co-conspirator, State v. Natale, 348 N.J. Super. 625, 628 n.2 (App. Div. 2002), aff'd o.b., 178 N.J. 51 (2003). The statute is not limited to principals. State v. Rumblin, 166 N.J. 550, 553-56 (2001) (finding NERA applicable to an armed robbery

conviction even though the defendant did not hold the weapon during the robbery).

9. Application to a Murder Sentence. The court computes the 85% NERA parole-ineligibility period for a murder sentence on the whole term imposed for the murder conviction. State v. Rambo, 401 N.J. Super. 506, 522 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). The court does not base the NERA parole ineligibility period on the part of the murder sentence that exceeds the thirty-year parole disqualifier required by the murder statute (N.J.S.A. 2C:11-3(b)(1)). Thus, if the court imposes a fifty-year term on a murder conviction, N.J.S.A. 2C:11-3(b)(1) would require the defendant serve at least thirty of those fifty years, but NERA would require the defendant serve forty-two-and-one-half years imprisonment (50 x .85 = 42.5).

10. Young Adult Offender. A young adult offender sentence (N.J.S.A. 2C:43-5) cannot be imposed on a conviction for any crime to which NERA applies. State v. Corriero, 357 N.J. Super. 214, 217-18 (App. Div. 2003).

11. Specifying the Length of the NERA Term. Trial judges should specifically state the length of the "NERA ineligibility term in terms of years, months and days to avoid any problem long after the time of sentencing." State v. Hernandez, 338 N.J. Super. 317, 319 n.1 (2001).

12. Violation of Probation. If, for a crime subject to NERA, a defendant obtained a reduced sentence of probation pursuant to Rule 3:21-10, then on resentencing after the probation violation, the court must impose an 85% period of parole ineligibility for the offense subject to NERA. State v. Kearns, 393 N.J. Super. 107, 111 (App. Div. 2007).

13. Application for Reconsideration. A defendant sentenced under NERA may not apply for reconsideration of his or her sentence pursuant to Rule 3:21-10(b) until the mandatory term of parole ineligibility has been served. State v. Le, 354 N.J. Super. 91, 96 (Law Div. 2002).

14. Cruel and Unusual Punishment. NERA does not violate the Federal or State constitutional prohibitions against cruel and unusual punishment. State v. Johnson, 166 N.J. 523, 548-49 (2001). This is so even when the act is applied to accomplices. State v. Rumblin, 166 N.J. 550, 557 (2001).

15. The Graves Act and NERA. The 85% parole disqualifier under NERA subsumes a 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). However, a court should state in the judgment that the Graves Act applied to the NERA offense 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).

E. Parole Ineligibility, Non-NERA Offenses: Case Law

1. The Standard in Balancing the Aggravating and Mitigating Factors. Although the court considers the same aggravating and mitigating factors in setting a prison term and a period of parole ineligibility, the standard for balancing the factors is different. State v. Case, 220 N.J. 49, 66 (2014). In determining the prison term, the court decides whether "there is a preponderance of aggravating or mitigating factors." Ibid. (quoting State v. Kruse, 105 N.J. 354, 359 (1987)). In determining parole ineligibility, the court must be "clearly convinced that the aggravating factors substantially outweigh the mitigating factors." Ibid. (quoting State v. Kruse, 105 N.J. 354, 359 (1987)).

2. Requisite Findings. "To facilitate meaningful appellate review, trial judges must explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 65 (2014). "[C]ritical to the sentencing process and appellate review is the need for the sentencing court to explain clearly why an aggravating or mitigating factor presented by the parties was found or rejected and how the factors were balanced to arrive at the sentence." Id. at 66. But see State v. McBride, 211 N.J. Super. 699, 705 (App. Div. 1986) (sustaining a parole disqualifier in the absence of express findings because the record clearly established that the aggravating factors substantially predominated the nonexistent mitigating factors), and State v. Morris, 242 N.J. Super. 532, 546 (App. Div.), certif. denied, 122 N.J. 408, 127 N.J. 321 (1990).

3. Prohibition Against Double Counting. The prohibition against double counting applies whether the court is setting a prison term or deciding whether to impose a period of parole ineligibility. State v. C.H., 264 N.J. Super. 112, 140 (App.

Div.), certif. denied, 134 N.J. 479 (1993); State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984), certif. denied, 101 N.J. 234 (1985). Thus, where an element of the crime is a specific fact, that element may not be used as an aggravating factor to impose a parole disqualifier. State v. C.H., 264 N.J. Super. 112, 140 (App. Div.), certif. denied, 134 N.J. 479 (1993).

4. Parole Ineligibility Is the Exception. Periods of parole ineligibility "are not to be treated as routine or commonplace." They are the exception, not the rule. State v. Case, 220 N.J. 49, 66 (2014) (quoting State v. Martelli, 201 N.J. Super. 378, 382-83 (App. Div. 1985)).

5. Proportionality. The need for uniformity in sentencing and the heightened standard for parole ineligibility suggest that a minimum term will rarely be imposed when the court sets a sentence within the middle of the sentencing range. State v. Kruse, 105 N.J. 354, 362 (1987); State v. Modell, 260 N.J. Super. 227, 254-55 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993).

6. Aggregate Term. The court may not impose a parole ineligibility term on an aggregate sentence; rather, the parole disqualifier must be imposed on a specific count. State v. Orlando, 269 N.J. Super. 116, 141 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994).

7. Imprisonment as a Condition of Probation and Discretionary Parole Disqualifiers. "[A] defendant sentenced to a prison term as a condition of probation may not be exposed to the parole ineligibility term authorized by N.J.S.A. 2C:43-6(b)" (a discretionary parole disqualifier). State v. Hartye, 105 N.J. 411, 419 (1987).

8. Mandatory Minimum Terms Must Be Served in Jail or Prison.

When sentencing for a violation of N.J.S.A. 2C:40-26 (operating a motor vehicle during a period of license suspension), the court may not substitute the parole ineligibility term with time spent in a rehabilitation program, community service program, or in-home detention; the minimum term must be served in prison or jail. State v. Harris, 439 N.J. Super. 150, 159-60 (App. Div.), certif. denied, 221 N.J. 566 (2015); State v. French, 437 N.J. Super. 333, 336-40 (App. Div. 2014), certif. denied, 220 N.J. 575 (2015).

9. Ineligibility for the Intensive Supervision Program. A defendant serving a statutorily mandated period of parole ineligibility or a discretionary parole disqualifier may not obtain entry into an intensive supervision program until after the minimum term has been served. State v. McPhall, 270 N.J. Super. 454, 457 (App. Div.), certif. denied, 137 N.J. 309 (1994).

10. Transfer to a Drug Treatment Program. A defendant serving a term that includes a period of parole 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).

11. Probation Violation. A parole disqualifier should not ordinarily be imposed when resentencing a defendant for 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). In reweighing the factors upon a probation violation, a court should consider the aggravating factors found to exist at the original hearing and the mitigating factors as affected by the probation violation. Ibid. State v. Molina, 114 N.J. 181, 184-85 (1989).

Negotiated Plea. These standards also apply to a defendant being resentenced for a violation of probation following a negotiated plea agreement pursuant to N.J.S.A. 2C:35-12, by which the prosecutor waived a mandatory minimum. Once the prosecutor waives a parole disqualifier under N.J.S.A. 2C:35-7 (applicable to drug offenses), it is no longer "mandatory" for purposes of sentencing a probation violation. State v. Vasquez, 129 N.J. 189, 199-200 (1992). However, the court may impose a period of parole ineligibility under appropriate circumstances, and based on adequate findings. Id. at 205.

12.

Repeat Sex Offender. The parole disqualifier set forth in N.J.S.A. 2C:14-6 applies equally to defendants sentenced to jail terms and to sex-offender treatment. State v. Chapman, 95 N.J. 582, 588-89 (1984).

13. Young Adult Offender Sentencing in 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). The drug offense "strategy of deterrence by mandatory incarceration for a fixed minimum period is inconsistent with the . . . strategy expressed in the Young Adult Offenders statute which offers an early release from an indeterminate sentence in return for evidence of rehabilitation." State v. Luna, 278 N.J. Super. 433, 438 (App. Div. 1995).

14. First-Time Firearms Offenders, Constitutionality. N.J.S.A. 2C:43-6.2 (allowing the court to eliminate or limit the period of parole ineligibility for certain first-time offenders) 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 exercise of the legislative will. Ibid.

15. Murder Statute Parole Disqualifier and Cruel and Unusual Punishment. The thirty-year period of parole ineligibility mandated by the murder statute (N.J.S.A. 2C:11-3(b)(1)), does not constitute cruel and unusual punishment, as applied to adults, State v. McClain, 263 N.J. Super. 488, 497 (App. Div.), certif. denied, 134 N.J. 477 (1993), or juveniles. State v. Pratt, 226 N.J. Super. 307, 324-26 (App. Div.), certif. denied, 114 N.J. 314 (1988).

16. Credits Do Not Decrease a Parole Disqualifier. Commutation and work credits cannot reduce a statutorily or judicially imposed parole disqualifier. Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 70 (App. Div. 1998); Merola v. Dep't of Corr., 285 N.J. Super. 501, 509 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996).

17. Computing the Aggregate Term. "[T]he mechanical function of aggregating sentences," including terms of parole eligibility, "is to be performed by the Parole Board, not the sentencing court." State v. Curry, 309 N.J. Super. 66, 71 (App. Div. 1998).

VIII. EXTENDED TERMS

An extended term of imprisonment exceeds the ordinary sentence range for the degree of crime committed. The sentencing court may impose an extended term upon application of the prosecutor (see section A), unless a statute mandates the imposition of an extended term (see section B). Section C discusses case law on extended terms.

Note: Pursuant to the Sixth Amendment, "[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). Stated another way, "the Sixth Amendment does not permit a defendant to be 'exposed . . . to a penalty exceeding the maximum he [or she] would receive if punished according to the facts reflected in the jury verdict alone.'" Ring v. Arizona, 536 U.S. 584; 122 S. Ct. 2428; 153 L. Ed. 2d 556 (2002) (quoting Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S. Ct. 2348, 2359, 147 L. Ed. 2d 435, 450 (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, 417 (2004)).

The statutes discussed in this chapter are subject to the foregoing Sixth Amendment requirements.

A. Discretionary Extended Terms: Statutory Provisions

1. Statutory Authority for Discretionary Extended Terms.

N.J.S.A. 2C:44-3 provides that upon application of the prosecutor the court may impose an extended term if the following situations in (a) or (b) apply:

(a) The defendant has been convicted of a crime of the first, second or third degree AND:

 The defendant is a "persistent offender" (i.e. at least twenty-one years old at the time of the offense; previously convicted on two separate occasions of two crimes while at least eighteen years old; and either the latest crime or the defendant's release from confinement is within ten years of the crime being sentenced) (N.J.S.A. 2C:44- 3(a)); OR
 The defendant is a "professional criminal," (i.e. "a person who committed a crime as part of a continuing criminal activity in concert with two or more persons, and the circumstances of the crime show he has knowingly devoted himself to criminal activity as a major source of livelihood") (N.J.S.A. 2C:44- 3(b)); OR
 The defendant committed the crime for payment or pecuniary value (N.J.S.A. 2C:44-3(c)).
OR
(b) The defendant used, or was in possession of, a stolen vehicle in the commission of any of the following crimes (N.J.S.A. 2C:44-3(f)):

 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);
 Resisting arrest and eluding an officer (N.J.S.A. 2C:29-2(b));

 Escape (N.J.S.A. 2C:29-5); and
 Manufacturing, distributing or dispensing a

controlled dangerous substance (N.J.S.A. 2C:35-5).

2. Prior Conviction Rules.

(a) "Prior Conviction" Defined. A prior conviction of an offense is "[a]n adjudication by a court of competent jurisdiction that the defendant committed an offense." N.J.S.A. 2C:44-4(a).

(i) Adjudication. For a prior crime, an adjudication is sufficient, even if the sentence has been suspended, as long as the time to appeal has expired and the defendant has not been pardoned. N.J.S.A. 2C:44-4(b).

(ii) Foreign Jurisdiction. A conviction in "another jurisdiction" constitutes a prior conviction if the law of that jurisdiction authorized a prison sentence in excess of six months. N.J.S.A. 2C:44-4(c).

(b) Proof of Prior Conviction. "Any prior conviction may be proved by any evidence, including fingerprint records made in connection with arrest, conviction or imprisonment, that reasonably satisfies the court that the defendant was convicted." N.J.S.A. 2C:44-4(d).

Extended Term Ranges. N.J.S.A. 2C:43-7(a)(1) to (7) provides the following extended term ranges:

 Murder (N.J.S.A. 2C:11-3): thirty-five years to life imprisonment with a thirty-five-year parole disqualifier;
 Aggravated manslaughter (N.J.S.A. 2C:11-4), first degree kidnapping (N.J.S.A. 2C:13-1(c)(1)), and aggravated sexual assault (N.J.S.A. 2C:14-2: thirty years to life imprisonment;
 First degree kidnapping of a child age sixteen or less

(N.J.S.A. 2C:13-1(c)(2)): thirty years to life imprisonment with a thirty year parole disqualifier;

 First degree crimes (besides the five crimes listed above): twenty years to life imprisonment;
 Second degree crime: ten to twenty years;
 Third degree crime: five to ten years; and
 Fourth degree crime: five years.

4. Multiple Extended Terms. N.J.S.A. 2C:44-5(a)(2) prohibits a court from imposing multiple extended terms. The case law discussed in section C of this chapter clarifies that a court must impose extended terms mandated by statute (see section B of this chapter), even if the result is multiple extended terms. The court may not impose a discretionary extended term in addition to a mandatory extended term.

(a) Sentencing at One Proceeding. When a court imposes sentence for multiple offenses in the same proceeding, "[n]ot more than one sentence for an extended term shall be imposed." N.J.S.A. 2C:44-5(a)(2).

(b) Sentencing at Different Times. "When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody[, t]he multiple sentences imposed shall so far as possible conform to" N.J.S.A. 2C:44-5(a)(2). N.J.S.A. 2C:44-5(b)(1).

5. Notice and Hearing. The prosecutor must provide the defendant written notice of the basis for the extended term, and the court must provide the defendant an opportunity to respond at a hearing. N.J.S.A. 2C:44-6(e). The prosecutor must file a motion for an extended term within fourteen days of the verdict or guilty plea unless the court extends the time for "good cause shown." R. 3:21-4(e).

6. Mandatory Period of Parole Ineligibility. If the court imposes a discretionary extended term for kidnapping (N.J.S.A. 2C:13-1(c)(2)), or murder (N.J.S.A. 2C:11-3), then the court must also impose a period of parole ineligibility. N.J.S.A. 2C:43-7(a)(6) and (7). For murder the parole disqualifier must be thirty years. N.J.S.A. 2C:43-7(a)(6). For a violation of N.J.S.A. 2C:13-1(c)(2) (kidnapping), the parole disqualifier must be thirty years. N.J.S.A. 2C:43-7(a)(7).

7. Optional Period of Parole Ineligibility. With the exception of sentences for murder (N.J.S.A. 2C:11-3) and kidnapping (N.J.S.A. 2C:13-1(c)(2)), as part of a N.J.S.A. 2C:44-3(a) discretionary extended term "the court may fix a minimum term [of parole ineligibility] not to exceed one-half of the term" or, in the case of life imprisonment, twenty-five years. N.J.S.A. 2C:43-7(b).

B. 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 Child Pornography. N.J.S.A. 2C:24-4(b)(5)(b) provides that a person convicted of a second or subsequent offense of third degree 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. Soliciting a Minor to Join a Street Gang. N.J.S.A. 2C:33- 28(f) requires the court to impose an extended term for soliciting, recruiting, coercing or threatening a person under the age of eighteen to join a street gang.

4. 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.

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.

5. State Taxes. N.J.S.A. 2C:43-6(e) provides that the court may impose an extended term for "a third or subsequent offense involving State taxes under N.J.S.A. 2C:20-9 [theft by failure to make required disposition of property received], N.J.S.A. 2C:21-15 [misapplication of entrusted property and property of government or financial institution], any other provision of this code, or under any of the provisions of Title 54 of the Revised Statutes [taxation], or Title 54A of the New Jersey Statutes [New Jersey Gross Income Tax Act]."

6. Repeat Drug Offender. N.J.S.A. 2C:43-6(f) provides that upon application of the prosecutor and after a hearing, the court must impose an extended term with a parole disqualifier on anyone convicted of the following crimes if the person 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
 Distributing, dispensing or possessing with intent to distribute within a school zone (N.J.S.A. 2C:35-7).
N.J.S.A. 2C:43-6(f) requires the extended term include a parole ineligibility term between one-third and one-half of the sentence imposed, or three years, whichever is greater. If the defendant violated N.J.S.A. 2C:35-6 (employing a juvenile in a

100

drug distribution scheme), the period of parole ineligibility must be at least seven years, and if the crime is one of the fourth degree, the period must be at least eighteen months. N.J.S.A. 2C:43-6(f). Note: The enhanced sentencing provisions of N.J.S.A. 2C:43-6(f) are subject to waiver under N.J.S.A. 2C:35-12. See the Chapter XIV on drug offender sentencing for additional discussion.

7. The Graves Act and Assault Weapons. N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:43-6(g) require an extended term be imposed when the defendant has previously been convicted of a crime involving the use or possession of a firearm and then commits an enumerated offense. See Chapter XIII on Graves Act and assault weapons sentencing for additional discussion.

8. 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)).

101

9. 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, "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 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) (listed above), "regardless of the dates of the convictions":

 Second degree manslaughter (N.J.S.A. 2C:11-4); 102



 

  

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);

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 unlawful purposes (N.J.S.A. 2C:39-4).

(2)
enumerated in N.J.S.A. 2C:43-7.1(a) (listed above); (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.

The defendant: (1) is convicted of a crime

103

10. 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. See Chapter XV on sex offender sentencing for further discussion.

11. Crimes Committed While Released on Bail. N.J.S.A. 2C:44- 5.1(a) requires the court to impose an extended term and double the fine authorized for the offense if the defendant committed any of the following offenses and "at the time of the commission of the crime, the defendant was released on bail or on his own recognizance for one of the enumerated crimes and was convicted of that crime":

 Possession of a firearm with intent to use it unlawfully against the person of another (N.J.S.A. 2C:39-4);
 Murder (N.J.S.A. 2C:11-3);
 Manslaughter (N.J.S.A. 2C:11-4);
 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. Notice to impose a sentence pursuant to this statute must be filed with the court and served upon the defendant by the prosecutor within fourteen days of entry of the defendant's guilty plea or return of the verdict. R. 3:21-4(f). The court must provide the

104

defendant an opportunity to challenge the basis for the extended term at a hearing. N.J.S.A. 2C:44-5.1(b).

C. Extended Terms: Case Law
1. Imposing a Discretionary Extended Term.

(a) Setting a Term, the Dunbar Factors. After finding the defendant meets the statutory requirements for a discretionary extended term, the court must assess the aggravating and mitigating factors, including the need to protect the public, and set a term within the bottom of the ordinary term and top of the extended term range. State v. Pierce, 188 N.J. 155, 168-169 (2006) (modifying the prior rule set forth in State v. Dunbar, 108 N.J. 80, 89 (1987) to eliminate judicial factfinding, as required by the Sixth Amendment).

(b) Parole Ineligibility. To impose a period of parole ineligibility, the court must be "clearly convinced that the aggravating factors substantially outweigh the mitigating factors." State v. Dunbar, 108 N.J. 80, 89 (1987).

(c) Deference to the Prosecutor's Request. "Because it is the prosecutor's choice whether to seek an extended term . . . the trial judge should give weight to the prosecutor's determination." State v. Thomas, 195 N.J. 436, 436 (2008).

(d) Sentencing Range. The range of sentence that a persistent offender is subject to "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006).

(e) Specificity in the Motion for an Extended Term. When the defendant faces multiple charges, the prosecutor's notice of motion should identify the offense for which the prosecutor seeks an extended term. State v. Thomas, 195 N.J. 431, 436 (2008).

2. Discretionary Extended Terms and Prior Convictions.

105

(a) Foreign Jurisdiction. Absent a showing of fundamental unfairness, a prior conviction from a foreign country is presumed appropriate where the jurisdiction had a judicial system with protections similar to our own. State v. Williams, 309 N.J. Super. 117, 123 (App. Div.), certif. denied, 156 N.J. 383 (1998). One criteria for fundamental fairness is that the defendant had legal counsel in the prior proceeding. Id. at 124.

(b) Constitutionality. There is no Sixth Amendment violation in the sentencing court's consideration of a defendant's prior conviction in order to determine whether the defendant qualifies as a "persistent offender" because such findings fall 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 Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S. Ct. 2348, 2361-62, 147 L. Ed. 2d 435, 454 (2000). State v. Pierce, 188 N.J. 155, 163 (2006).

(c) Prior Conviction Pending Appeal. The sentencing court may consider a prior conviction, even if an appeal challenging it is pending. State v. Cook, 330 N.J. Super. 395, 422 (App. Div.), certif. denied, 165 N.J. 486 (2000). If the prior conviction is reversed on appeal, then the extended term would have to be vacated. Ibid.

(d) Timing of Offenses. Under N.J.S.A. 2C:44-3(a), a defendant may not be sentenced as a persistent offender if the "latest in time" prior crime and the "last release from confinement" both occurred more than ten years before the crime for which the defendant is being sentenced, even if the latest prior conviction was entered within the ten-year period. State v. Henderson, 375 N.J. Super. 265, 266, 270 (Law Div. 2004).

(e) Prior Convictions Considered Previously by a Court. A court is not precluded from considering prior convictions that a prior court used as a basis for an extended term. State v. Reldan, 231 N.J. Super. 232, 237-38 (App. Div. 1989).

(f) Chronology of the Crimes. The sentencing judge may consider convictions for crimes committed after the crime for which the court is imposing a sentence. State v. Cook, 330 N.J. Super. 395, 421 (App. Div.), certif. denied, 165

106

N.J. 486 (2000). The timing of the conviction, not the crime, is the significant fact. Ibid. Compare this approach to the following methods used to calculate persistent-offender status for other purposes:

(i) Sex Offenders: Under N.J.S.A. 2C:14-6, a second or subsequent sex offender conviction is subject to mandatory parole ineligibility (unless given an extended sentence under N.J.S.A. 2C:43-7), if the person has been convicted of a sexually oriented offense "at any time." The "first" or "earlier" crime had to result in a conviction by the time the later offense was committed. State v. Anderson, 186 N.J. Super. 174, 176 (App. Div. 1982), aff'd o.b., 93 N.J. 14 (1983).

(ii) The Graves Act: The Graves Act does not limit the chronological sequence of convictions subject to its extended term provision; the only requirement is that there be a prior conviction. State v. Hawks, 114 N.J. 359, 365-67 (1989). It has been postulated, but not decided, that a Graves Act extended term cannot 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), certif. denied, 192 N.J. 66 (2007).

(iii) Repeat Drug Offenders: An extended term under N.J.S.A. 2C:43-6(f) does not depend on the chronological sequence of the offenses or convictions. The defendant must have been convicted "at any time." State v. Hill, 327 N.J. Super. 33, 41-42 (App. Div. 1999), certif. denied, 164 N.J. 188 (2000). However, the statute will not apply if the defendant enters guilty pleas to two different charges pursuant to one agreement, on the same day, at one proceeding. State v. Owens, 381 N.J. Super. 503, 512-13 (App. Div. 2005).

(iv) Domestic Violence Act: The enhanced penalty provisions of N.J.S.A. 2C:25-30 apply only to individuals who have been previously convicted of a domestic violence offense as of the date the subsequent offense was committed. Hence, these provisions do not apply to someone simultaneously convicted of offenses occurring on two separate

107

occasions. State v. Bowser, 272 N.J. Super. 582, 588- 89 (Law Div. 1993).

3. Rules When Imposing Multiple Extended Terms.

(a) Discretionary Extended Terms. N.J.S.A. 2C:44-5(a)(2) prohibits a court from imposing multiple discretionary extended terms, even if the terms are to be served concurrently. State v. Mays, 321 N.J. Super. 619, 636 (App. Div.), certif. denied, 162 N.J. 132 (1999).

(b) Mandatory and Discretionary Extended Terms. The prohibition against multiple extended terms is inapplicable to mandatory extended terms required by the Graves Act (N.J.S.A. 2C:43-6(c)), State v. Robinson, 217 N.J. 594, 597 (2014) (citing State v. Connell, 208 N.J. Super. 688, 697 (App. Div. 1986)), and the Comprehensive Drug Reform Act (N.J.S.A. 2C:43-6(f)), State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999). Thus, if the defendant is convicted of two Graves Act offenses and a drug offense, all of which are subject to mandatory extended terms, the court must impose three extended terms. The court may not, however, impose a discretionary extended term in addition to a mandatory extended term. State v. Robinson, 217 N.J. 594, 609-10 (2014).

(c) Multiple Extended Terms. N.J.S.A. 2C:44-5(a)(2) prohibits a court from imposing multiple discretionary extended terms in one sentencing proceeding; it "has no application . . . where extended terms are imposed by two different courts for different offenses at proceedings separated by a span of nine years." State v. Reldan, 231 N.J. Super. 232, 238 (App. Div. 1989) (affirming an extended term where the defendant was serving an extended term pursuant to a former persistent offender statute). Pursuant to N.J.S.A. 2C:44-5(b), a defendant serving an extended term cannot be sentenced to a discretionary extended term by a subsequent sentencing court for a crime committed before the crime for which he or she is already serving an extended term, unless the first offense occurred while the defendant was in custody. State v. Pennington, 418 N.J. Super. 548, 554-58 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012).

(d) Crime Committed While "In Custody." A defendant who committed a subsequent offense while released on bail

108

committed that offense while "in custody" for purposes of N.J.S.A. 2C:44-5(b), and thus, may be subject to a second discretionary extended term by a second sentencing court. State v. Boykins, 447 N.J. Super. 213, 221-23 (App. Div. 2016), certif. denied, ___ N.J. ___ (2017).

(e) Probation Violation. If a defendant commits a crime while serving probation on a suspended extended term, the court may revoke probation, reinstate the original extended term, and impose an extended term for the crime committed while on probation, without violating N.J.S.A. 2C:44- 5(a)(2). State v. Williams, 299 N.J. Super. 264, 272-73 (App. Div. 1997).

(f) Severed Charges. When charges in an indictment are severed, and the court imposes an extended term on a conviction from the first trial, N.J.S.A. 2C:44-5(b)(1) precludes the court from imposing an extended term on a conviction from the second trial. State v. Hudson, 209 N.J. 513, 531-33 (2012). The Hudson decision did not create new law, and therefore has retroactive effect. State v. Bull, 227 N.J. 555, 563 (2017).

(g) Guilty Pleas at Different Times. N.J.S.A. 2C:44- 5(b)(1) precludes a sentencing court from imposing a second extended term for an offense that a defendant "pled to second in time but that was committed earlier than the imposition of the extended-term sentence she [the defendant] is serving." State v. McDonald, 209 N.J. 549, 555 (2012).

4. Repeat Drug Offenders.

(a) Separation of Powers. As written, N.J.S.A. 2C:43-6(f) (requiring the court impose an extended term on a repeat drug offender upon application of the prosecutor) 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). To comply with the separation of powers doctrine, our Court has interpreted the statute as requiring that guidelines be adopted to assist prosecutorial decision-making while reflecting the legislative intent that extended sentences for repeat drug offenders should be the norm. State v. Lagares, 127 N.J. 20, 32 (1992).

109

(i) Guidelines. For the guidelines effective May 20, 1998, through September 14, 2004, see Attorney General Directive 1998-1, incorporating by reference Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12, available 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).

For offenses committed on or after September 15, 2004, the Attorney General promulgated revised guidelines. They are available at www.nj.gov/oag/dcj (click on "Directives/Guidelines," then "Guidelines," then "Brimage Guidelines 2").

(b)

(c) Sixth Amendment. The requirement that the court find the basis for a mandatory extended term 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 jury-finding requirement. State v. Thomas, 188 N.J. 137, 149-52 (2006).

(d) Chronology of Offenses and Convictions. Similar to the Graves Act repeat-offender provision, 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, and pursuant to one agreement, N.J.S.A. 2C:43-6(f), will apply. State v. Owens, 381 N.J. Super. 503, 512-13 (App. Div. 2005).

(e) The Dunbar Factors. The factors set forth in State v. Dunbar, 108 N.J. 80 (1987), as modified in State v.

Arbitrary and Capricious Challenge. Prosecutors must state their reasons on the record for seeking an extended sentence under the repeat drug offender statute (N.J.S.A. 2C:43-6(f)), and the court may deny or vacate an extended term 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).

110

Jefimowicz, 119 N.J. 152 (1990), for setting an extended term apply when imposing a mandatory extended term 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).

5. Persistent Offenders Accountability Act (the Three Strikes and You're in Law).

(a) Robbery. The Persistent Offender Law's reference to N.J.S.A. 2C:15-1 (robbery) applies only to first degree robbery. State v. Jordan, 378 N.J. Super. 254, 258-61 (App. Div. 2005).

(b) Hearing. The State must establish the basis for a term under the Three Strikes Law at a hearing where the defendant has the right to hear and controvert the evidence against him or her and to offer evidence in his or her own behalf. N.J.S.A. 2C:43-7.1(d); R. 3:21-4(f). The standard of proving a defendant's prior conviction under the statute is proof by a preponderance of the evidence. State v. Oliver, 162 N.J. 580, 590-92 (2000).

(c) Conviction in Another Jurisdiction. A foreign conviction must be "substantially equivalent" to an enumerated offense. State v. Rhodes, 329 N.J. Super. 536, 544 (App. Div.), certif. denied, 165 N.J. 487 (2000).

(d) Timing of Convictions and Punishments. The law is not limited to defendants who have been convicted and punished for the first two offenses before committing the third offense. State v. Galiano, 349 N.J. Super. 157, 164-65 (App. Div. 2002), certif. denied, 178 N.J. 375 (2003). "If two qualifying convictions precede the sentencing of the third offense and that offense was committed either within ten years of defendant's most recent release from confinement for commission of any crime or within ten years of the commission of the most recent of the crimes for which defendant has a prior conviction, then defendant is eligible for the enhanced punishment of N.J.S.A. 2C:43- 7.1(a), even though the present sentence is for an offense committed prior to the entry of the pre-qualifying convictions." Id. at 168.

111

(e) Timing of Crimes. To qualify as "strikes," the two other offenses must have occurred "on prior and separate occasions." Thus, the defendant must have committed them on different occasions and prior to the third offense. State v. Parks, 192 N.J. 483, 488 (2007).

(f) Constitutionality. As applied to adults, the Three Strikes Law does not violate the double jeopardy, ex post facto, due process, or equal protection clauses of the federal or state constitutions, does not violate the separation of powers doctrine, and does not constitute cruel and unusual punishment. State v. Oliver, 162 N.J. 580, 585-89 (2000). A statute that mandates life imprisonment without the possibility of parole for a defendant who was under the age of eighteen at the time he or she committed the offense violates the Eighth Amendment prohibition against cruel and unusual punishment. Miller v. Alabama, ___ U.S. ___, ____, 132 S. Ct. 2455, 183 L. Ed. 2d 407, 415 (2012). See also Montgomery v. Louisiana, ___ U.S. ___, ___, 136 S. Ct. 718, 734, 193 L. Ed. 2d 599, 620 (2016) (ruling that Miller v. Alabama applies retroactively).

112

IX. CONCURRENT AND CONSECUTIVE SENTENCES

When a defendant is subject to multiple terms of imprisonment, the sentencing court must decide whether the terms will run concurrently or consecutively. A few statutes require imposition of consecutive terms (see section B). In all other cases the decision is left to the sentencing court's discretion (see section A). Section C discusses case law on concurrent and consecutive terms.

A. Consecutive Terms Within the Court's Discretion: Statutory Provisions

1. Statutory Authority for Discretionary Consecutive Terms.

N.J.S.A. 2C:44-5(a) provides that where a defendant receives multiple sentences of imprisonment "for more than one offense, including an offense for which a previous suspended sentence or sentence of probation has been revoked, such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." "There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses"; however, the aggregate of consecutive terms to county jail may not exceed eighteen months. Ibid.

2. Sentences Imposed at Different Times. N.J.S.A. 2C:44-5(b) instructs the court to decide whether to run terms consecutively or concurrently when a defendant, previously sentenced to imprisonment, is later sentenced for an offense committed prior to the former sentence. See also N.J.S.A. 2C:44-5(d) (instructing that multiple terms of imprisonment shall run concurrently or consecutively when a second or subsequent sentence is imposed).

3. Offense Committed While Released Pending Disposition of Charges. N.J.S.A. 2C:44-5(h) limits the court's discretion in imposing concurrent terms where the defendant committed the offense while released, with or without bail, pending disposition of charges. The court may impose concurrent terms only if, after considering "the character and conditions of the defendant," the court "finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others." Ibid.

113

4. The Yarbough Guidelines. N.J.S.A. 2C:44-5 does not specify when consecutive or concurrent sentences are appropriate. In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Supreme Court set forth the following guidelines for sentencing courts when the offender "has engaged in a pattern of behavior constituting a series of separate offenses" or "multiple offenses in separate, unrelated episodes":

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were

predominantly independent of each

other;

acts of violence;

(b) the crimes involved violence or threats

separate of

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms

114

(including an extended term, if eligible) that could be imposed for the two most serious offenses.

[State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).]

Note: Yarbough guideline number six has been superseded by a 1993 amendment to N.J.S.A. 2C:44-5(a), which provides that there "shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."

5. Calculation of the Terms. N.J.S.A. 2C:44-5(e)(1) instructs that when terms run concurrently, "the shorter terms merge in, and are satisfied by discharge of the longest term." When the terms run consecutively, they "are added to arrive at an aggregate term to be served equal to the sum of all terms." N.J.S.A. 2C:44-5(e)(2).

B. Mandatory Consecutive Terms: Statutory Provisions

1. Leaving a Motor Vehicle Accident Resulting in Death. N.J.S.A. 2C:11-5.1 instructs that "when the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively."

2. Second or Third Degree Leaving the Scene of a Boating Accident. N.J.S.A. 2C:11-5.2(d) instructs that "when
the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively."

3. Leaving a Motor Vehicle Accident Resulting in Serious Bodily Injury. N.J.S.A. 2C:12-1.1 provides that "whenever in the case of such multiple convictions the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively."

4. Third Degree Endangering an Injured Victim. N.J.S.A. 2C:12-1.2(d) requires the sentence "be served consecutively to that imposed for any conviction of the crime that rendered the person physically helpless or mentally incapacitated."

5. Third Degree Reckless Endangerment. N.J.S.A. 2C:12-2(b)(2) provides that the sentence "shall be ordered to be served consecutively to that imposed for a conviction of the offense

115

that the defendant intended to commit or facilitate when the defendant violated the provisions of this subsection." Note: As of January 11, 2016, this statute was repealed and replaced by N.J.S.A. 2C:24-7.1 (Endangering Another Person), which does not require a consecutive term.

6. Throwing Bodily Fluid at a Department of Corrections Employee. N.J.S.A. 2C:12-13 provides: "A term of imprisonment imposed for this offense shall run consecutively to any term of imprisonment currently being served and to any other term imposed for another offense committed at the time of the assault."

7. Kidnapping a Minor and Homicide. N.J.S.A. 2C:13-1(c)(2) provides that if the kidnapped victim is killed, the kidnapping conviction must "be served consecutively to any sentence imposed pursuant to" Chapter 11 (criminal homicide).

8. Financial Facilitation of Criminal Activity. N.J.S.A. 2C:21-27(c) requires the conviction "be served consecutively to that imposed for a conviction of any offense constituting the criminal activity involved or from which the property was derived."

9. Witness Tampering. N.J.S.A. 2C:28-5(e) requires the sentence be served consecutively to the sentence for "an offense that was the subject of the official proceeding or investigation."

10. Violation of a Protective Order Prohibiting Witness Tampering. N.J.S.A. 2C:28-5.2(b) authorizes the court to impose a consecutive sentence to the sentence on the underlying offense. In the event the court does not impose a consecutive term, it must state its rationale on the record. Ibid.

11. Solicitation of Street Gang Members. N.J.S.A. 2C:33-28(e) instructs that if the defendant solicited another to join a criminal street gang while under official detention, the sentence must be served consecutively to the sentence the defendant was serving when the defendant solicited gang members. Additionally, the sentence under this statute must be served consecutively to a sentence "imposed upon any other such conviction."

12. Gang Criminality. N.J.S.A. 2C:33-29(b) requires the sentence imposed for the crime of gang criminality be served

116

consecutively to the sentence on any of the following underlying offenses: "any crime specified in chapters 11 through 18, 20, 33, 35 or 37 of Title 2C"; prostitution (N.J.S.A. 2C:34-1); possession of prohibited weapons and devices (N.J.S.A. 2C:39-3); possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39- 4); possession of a firearm while committing certain offenses (N.J.S.A. 2C:39-4.1); unlawful possession of a weapon (N.J.S.A. 2C:39-5); or manufacturing weapons (N.J.S.A. 2C:39-9).

13. Promoting Organized Street Crime. N.J.S.A. 2C:33-30(b) requires the sentence be served consecutively to the sentence imposed on an underlying offense pursuant to Chapters 11 through 18, 20, 33, 35, or 37 of Title 2C, or a conviction under N.J.S.A. 2C:39-4.1 (possession of a firearm while committing certain offenses); N.J.S.A. 2C:39-5 (unlawful possession of a weapon); or N.J.S.A. 2C:39-9 (manufacturing weapons).

14. 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 (drug offenses), 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."

15. 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);

117

 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).
16. Assault by an Inmate of a correctional employee, sheriff's department employee, or law enforcement officer. N.J.S.A. 2C:44-5(i) requires the court impose a term of incarceration on an inmate for assault on an employee of a correctional facility, juvenile facility, county sheriff's department, or law enforcement officer. The sentence must "run consecutively to any term of imprisonment currently being served and to any other term imposed for any other offense committed at the time of the assault." Ibid.
C. Consecutive and Concurrent Terms: Case Law
1. Aggravating and Mitigating Factors. "[F]or each crime in a series the court should impose a sentence, taking into account the appropriate aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1(a) and -1(b), before considering whether the sentences should run consecutively or concurrently." State v. Rogers, 124 N.J. 113, 119 (1991).
2. Expired Sentences. The court may not run a sentence concurrently to a sentence that has fully expired. State v. Mercadante, 299 N.J. Super. 522, 532 (App. Div.), certif. denied, 150 N.J. 26 (1997).
3. Sentences in Foreign Jurisdictions. The consecutive term provisions of the Code do not allow a court to impose a sentence to run consecutive to a sentence in a foreign jurisdiction.

118

Breeden v. N.J. Dep't of Corr., 132 N.J. 457, 465-66 (1993). However, if supported by adequate reasons, a court may impose a sentence consecutive to a federal sentence that a defendant is currently serving. State v. Walters, 279 N.J. Super. 626, 634- 37 (App. Div.), certif. denied, 141 N.J. 96 (1995). And a federal court may order that its sentence run consecutive to a state sentence that has not yet been imposed. Setser v. United States, ___ U.S. ___, ___, 132 S. Ct. 1463, 1467-73, 182 L. Ed. 2d 455, 459-65 (2012).

4. Requisite Findings. The court must state separately its reasons for imposing consecutive sentences. State v. Miller, 205 N.J. 109, 129 (2011) (remanding for resentencing where the court failed to address the Yarbough factors). However, a reviewing court may uphold a sentence that lacks a specific statement of reasons and findings "where the sentencing transcript makes it possible to 'readily deduce' the judge's reasoning." Id. at 129-30 (quoting State v. Bieneck, 200 N.J. 601, 609 (2010)).

5. The Yarbough Guidelines on Procedural Matters. "The second, fourth, fifth, and sixth guidelines do not assist a court in making the threshold decision whether to impose concurrent or consecutive sentences; rather, they establish certain procedural requirements." State v. Carey, 168 N.J. 413, 423 (2001).

6. Yarbough Guideline Three. The guideline that provides the "clearest guidance" to sentencing courts is the third one, which sets forth five factors that focus on the facts relating to the crime. State v. Carey, 168 N.J. 413, 423 (2001).

7. Qualitative Weighing. The court should qualitatively, not quantitatively, weight the factors set forth in guideline three. State v. Carey, 168 N.J. 413, 427 (2001). A court may impose consecutive sentences "even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28. See State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (explaining that even when offenses are connected by "unity of specific purpose," are somewhat interdependent of one another, and are committed within a short period of time, the court may impose consecutive terms), certif. denied, 165 N.J. 492 (2000).

8. Severity of the Circumstances. When deciding whether to impose concurrent or consecutive sentences, the court should determine whether the Yarbough factor under consideration "renders the collective group of offenses distinctively worse

119

than the group of offenses would be were that circumstance not present." State v. Carey, 168 N.J. 413, 428 (2001).

9. Multiple Victims and Harms. "Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." State v. Carey, 168 N.J. 413, 428 (2001). Accord State v. Roach, 146 N.J. 208, 230-31, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Johnson, 309 N.J. Super. 237, 271-72 (App. Div.), certif. denied, 156 N.J. 387 (1998). This is because the "total impact of singular offenses against different victims will generally exceed the total impact on a single individual who is victimized multiple times." This is true even when the defendant did not intend to harm multiple victims but it was foreseeable that his or her reckless conduct would have that effect. State v. Carey, 168 N.J. 413, 429 (2001).

10. Multiple Victims of Vehicular Homicide. "[I]n vehicular homicide cases, the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims." State v. Carey, 168 N.J. 413, 429-30 (2001).

11. Need to Protect Society. Consecutive sentences are especially appropriate where society must be protected from those who are unwilling to lead productive lives and who resort to criminal activities. State v. Taccetta, 301 N.J. Super. 227, 261 (App. Div.), certif. denied, 152 N.J. 187, 188 (1997).

12. Maximum Terms. "Where the offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim. The focus should be on the fairness of the overall sentence." State v. Miller, 108 N.J. 112, 122 (1987).

13. Deviation From the Yarbough Guidelines. Some cases are so extreme and extraordinary that deviation from the guidelines is appropriate. State v. Yarbough, 100 N.J. 627, 647 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Hammond, 231 N.J. Super. 535, 544 (App. Div.) (affirming three consecutive terms due to the extreme nature of the crimes), certif. denied, 117 N.J. 636 (1989); State v.

120

Lewis, 223 N.J. Super. 145, 154 (App. Div.) (affirming four consecutive terms), certif. denied, 111 N.J. 584 (1988).

14. Excessive Sentences. For examples of cases where consecutive terms were found excessive, see State v. Louis, 117 N.J. 250, 256-58 (1989) (aggregate term of 130 years with a 65 year parole disqualifier excessive); State v. Candelaria, 311 N.J. Super. 437, 454 (App. Div.) (six consecutive sentences totaling 105 years plus a life sentence), certif. denied, 155 N.J. 587 (1998); State v. Rodgers, 230 N.J. Super. 593, 604 (App. Div.) (reversing three consecutive terms for theft offenses), certif. denied, 117 N.J. 54 (1989).

15. Sentence Must Be Based on the Verdict. A judge may not impose consecutive sentences to compensate for what he or she believes was an unjust verdict in the defendant's favor. State v. Tindell, 417 N.J. Super. 530, 568-72 (App. Div. 2011) (imposing five maximum consecutive terms totaling thirty years' imprisonment on the basis that the defendant committed murder and the jury erroneously found him guilty of reckless manslaughter).

16. Split Sentencing. A judge may not impose sentences that are partially consecutive and partially concurrent. State v. Rogers, 124 N.J. 113, 118 (1991). Such a split-sentencing scheme would contravene the Code's paramount goal of uniformity. Ibid.

17. No Free Crimes. The "no free crimes" guideline stated in Yarbough "tilts in the direction of consecutive sentences because the Code focuses on the crime, not the criminal." State v. Carey, 168 N.J. 413, 423 (2001). However, this guideline does not eliminate concurrent sentences from a court's sentencing options because not every additional crime in a series must carry its own increment of punishment. State v. Rogers, 124 N.J. 113, 119 (1991).

18. Plea Agreements. The court may appropriately consider and weigh a plea agreement in deciding whether to impose consecutive sentences. State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996).

19. Order of Terms. Neither Yarbough nor any statutory provision precludes a sentencing judge from requiring that the less restrictive term of a consecutive sentence be served first. State v. Ellis, 346 N.J. Super. 583, 594 (App. Div.), aff'd

121

o.b., 174 N.J. 535 (2002). Although such a requirement does not render the sentence illegal, it may constitute an abuse of discretion since it effectively extends the real time the defendant must serve in prison. Id. at 597.

20. Young Adult Offenders. Because the Yarbough guidelines focus on punishment and young adult offender sentencing is premised on rehabilitation, a court should not apply the Yarbough guidelines in deciding whether to impose consecutive indeterminate sentences on young adult offenders. State v. Hannigan, 408 N.J. Super. 388, 398-400 (App. Div. 2009). Rather, the court should consider "offender-based criteria centered on rehabilitation." Id. at 400.

21. Juveniles. Although consecutive dispositions are authorized by the Code of Juvenile Justice, they should be the exception and not the rule. State in Interest of J.L.A., 136 N.J. 370, 380 (1994). In addition to weighing the Yarbough factors, the court must "exercise a heightened level of care before imposing multiple consecutive sentences on juveniles." State v. Zuber, 227 N.J. 422, 450 (2017). "[A] sentencing court must consider not only the factors in Yarbough but also the ones in Miller when it decides whether to impose consecutive sentences on a juvenile which may result in a lengthy period of parole ineligibility." Ibid. (referring to the five factors set forth in Miller v. Alabama, ___ U.S. ___, ___, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407, 423 (2012).

22. Offenses Committed While Released From Custody. Whenever a defendant commits an offense while released on probation, parole, or bail, N.J.S.A. 2C:44-5, presumes the terms will run consecutively. State v. Sutton, 132 N.J. 471, 484 (1993). The Yarbough standards should guide the court's decision. Id. at 485.

23. Sentences for Crimes Committed While on Parole, a Suspended Sentence, Probation or Bail. N.J.S.A. 2C:44-5(c), (f), (g) and (h), create a presumption that sentences for these offenses will run consecutively. State v. Sutton, 132 N.J. 471, 484 (1993).

122

Criminal Statutes, Court Rules Jury Charges NJ

Sunday, September 3, 2017

MANUAL ON NEW JERSEY SENTENCING LAW

Blog Archive