Manual on sentencing
X.
FINES
Imposition
of a fine is within the court's discretion (see section A), unless a statute
requires a fine (see section B). Section C discusses case law on fines.
Note: The Sixth Amendment requires that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). This rule applies to fines.
Southern Union Co. v. United States, ___ U.S. ___, ___, 132 S. Ct. 2344, 2350,
183 L. Ed. 2d 318, 326 (2012). In the case of a guilty plea, the maximum
sentence authorized by statute is the maximum sentence supported by the
defendant's admissions. State v. Franklin, 184 N.J. 516, 537-38 (2005)
(interpreting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531,
2541, 159 L. Ed. 2d 403, 403 (2004)). The defendant may also "consent to
judicial factfinding as to sentence enhancements." State v. Franklin, 184
N.J. 516, 538 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 309-11, 124
S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)).
In
Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155, 186 L. Ed.
2d 314, 321 (2013), the Court extended Apprendi to mandatory minimum terms.
Thus, the jury, not the court, must find a fact that increases the mandatory
minimum term. State v. Grate, 220 N.J. 317, 334-35 (2015) (finding invalid
under Alleyne a mandatory parole disqualifier based on the court's finding that
the defendant was involved in organized crime). No published New Jersey
decision has yet to decide whether the Alleyne rule applies to fines.
A. Fines in
General: Statutory Provisions
1.
Statutory Authority for Imposing a Fine. N.J.S.A. 2C:43- 2(b)(1) and (4) provide that the court may order
the defendant to pay a fine alone or in conjunction with imprisonment or
probation.
2.
Criteria for Imposing a Fine. Pursuant
to N.J.S.A. 2C:44- 2(a), the court may impose a fine if:
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- · the defendant derived
a pecuniary gain from the offense or the court believes that "a fine
is specially adapted to deterrence of the type of offense involved or to
the correction of the offender"; and
- · the defendant is able,
or will be able, to pay the fine; and
- · the fine will not
prevent the defendant from complying with a restitution order.
The court must consider the defendant's financial resources and the burden a fine will impose on those resources. N.J.S.A. 2C:44-2(c)(1).
3. Fine Amounts. N.J.S.A. 2C:43-3(a) to (h) provide the maximum fines as follows:
(a)(1) First degree crime: $200,000;
(a)(2) Second degree crime: $150,000;
(b)(1) Third degree crime: $15,000;
(b)(2) Fourth degree crime: $10,000;
(c) Disorderly persons offense: $1000;
(d) Petty disorderly persons offense: $500;
(e) "Any higher amount equal to double the pecuniary gain to the offender or loss to the victim";
(f) "Any higher amount specifically authorized by another section of this code or any other statute";
(g) "Up to twice the amounts authorized in subsection a., b., c. or d. of this section, in the case of a second or subsequent conviction of any tax offense defined in Title 54 of the Revised Statutes or Title 54A of the New Jersey Statutes, as amended and supplemented, or of any offense defined in chapter 20 or 21 of this code"; and
(h) Three times the street value of a controlled dangerous substance for drug crimes under Chapter 35. See N.J.S.A.
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2C:44-2(e)
(setting forth the procedure to determine street value and the standard of
appellate review).
4. Timing
of Payment. N.J.S.A. 2C:46-1(a)
provides that the fine shall be "payable forthwith" unless the court
granted "permission for the payment to be made within a specified period
of time or in specified installments." "[T]he court shall file a copy
of the judgment of conviction with the Clerk of the Superior Court." Ibid.
See also N.J.S.A. 2C:46-1(d); N.J.S.A. 2C:46-1.1 (imposing transactional fees
on fines).
(a)
Probation. The court may order
continued payments a condition of probation. N.J.S.A. 2C:46-1(b)(1).
(b)
Installments and Imprisonment. Where the
defendant is sentenced to a term of imprisonment, the court may order the
defendant to pay installments. N.J.S.A. 2C:46-1(b)(2).
5.
Nonpayment. N.J.S.A. 2C:46-2 sets forth
the rules regarding failure to pay. The State may institute a summary
collection action, or take any other authorized action for the collection of a
civil judgment. N.J.S.A. 2C:46-2(a) and (b). If the default is without good
cause, the court shall order the suspension of the defendant's driver's license
or prohibit the defendant from obtaining a license, and take "such other
actions as may be authorized by law." N.J.S.A. 2C:46-2(a)(1)(a) to
(d).
Willful
Nonpayment. If the defendant's default
was without good cause and was willful, the court may imprison the defendant or
order participation in a labor assistance program or enforced community
service. N.J.S.A. 2C:46- 2(a)(2).
6.
Petition to Revoke a Fine. N.J.S.A.
2C:46-3 provides that a defendant may petition the court "for a revocation
of the fine or of any unpaid portion thereof." The court may grant the
request if it finds that "the circumstances which warranted the imposition
of the fine have changed, or that it would otherwise be unjust to require
payment."
B.
Specific Fines Authorized, or Required, by Law: Statutory Provisions
1. Human
Trafficking. N.J.S.A. 2C:13-8(d) requires
a fine not less than $25,000 for a first degree crime. N.J.S.A. 2C:13-
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9(c)(1)
requires a fine not less than $15,000 for a second degree crime.
2.
Assisting in Human Trafficking. N.J.S.A.
2C:13-9(c)(1) mandates a fine of at least $15,000.
3. Commercial
Sexual Abuse of a Minor. N.J.S.A.
2C:13-10(c) provides that a person who commits the offense of advertising
commercial sexual abuse of a minor, contrary to N.J.S.A. 2C:13- 10(b), shall be
ordered to pay a fine of at least $25,000, which shall be deposited in the
Human Trafficking Survivor's Assistance Fund.
4.
Pornography. N.J.S.A. 2C:14-9(c)
authorizes "a fine not to exceed $30,000" for a third degree
pornography offense.
5.
Burglary. N.J.S.A. 2C:18-6(b)
requires a fine of at least $500 for third degree burglary, $200 for fourth
degree burglary, and $100 for a disorderly persons offense of burglary.
6. Auto
Theft. N.J.S.A. 2C:20-2.2 provides
that where the value of the stolen auto exceeds $7500 and the auto is not
recovered, the court may award a fine equal to the value of the vehicle.
7.
Removal of Headstones and Markers from Gravesites.
N.J.S.A.
2C:20-2.3(b) allows a fine up to $1000 for each stolen maker.
8. Leader
of a Cargo Theft Network. N.J.S.A.
2C:20-2.4(a)(2) provides that for first degree leader of a cargo theft network,
the court may impose a fine of up to $500,000, or five times the retail value
of the property seized, whichever is great. If the crime is one of the second
degree, the fine shall not exceed $250,000, or five times the retail value of
the property seized, whichever is greater. N.J.S.A. 2C:20-2.4(a)(1).
9. Theft
From a Cargo Carrier. N.J.S.A. 2C:20-2.6(b)
authorizes a fine up to $250,000, or five times the retail value of the stolen
property, whichever is greater, for theft from a cargo carrier.
10. Theft
of Services. N.J.S.A. 2C:20-8(k)
requires a $500 minimum fine for each theft of services offense.
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11.
Leader of Organized Retail Theft Enterprise. N.J.S.A. 2C:20-11.2 provides that "the court may impose a
fine not to exceed $250,000 or five times the retail value of the merchandise
seized at the time of the arrest, whichever is greater."
12.
Leader of Auto Theft Trafficking Network. N.J.S.A. 2C:20- 18 authorizes "a fine not to exceed $250,000
or five times the retail value of the automobiles seized at the time of the
arrest, whichever is greater."
13. Theft
of Electronic Vehicle Identification System Transponder. N.J.S.A. 2C:20-38 requires "a fine of not less than $500 nor
more than $10,000" for theft of an electronic vehicle identification
system transponder.
14.
Health Care Claims Fraud. N.J.S.A.
2C:21-4.3(a) and (b) authorize "a fine of up to five times the pecuniary
benefit obtained or sought to be obtained" for a practitioner convicted of
second and third degree health care claims fraud. The court must impose on a
non-practitioner convicted of a second, third or fourth degree offense, "a
fine of up to five times the pecuniary benefit obtained or sought to be
obtained." N.J.S.A. 2C:21-4.3(c) and (d).
15.
Business of Criminal Usury. N.J.S.A.
2C:21-19(b) mandates a fine not to exceed $250,000 for business of criminal
usury.
16.
Pirating Recordings. N.J.S.A. 2C:21-21(d)
allows for the following fines:
- · Up to $250,000 if the
offense involved "at least 1000 unlawful sound recordings or at least
65 audiovisual works within any 180-day period";
- · Up to $150,000 if the
offense involved "more than 100 but less than 1000 unlawful sound
recordings or more than 7 but less than 65 unlawful audiovisual works
within any 180-day period";
- · If the offense is not
covered by the foregoing provisions, then up to $25,000 for a first
offense, up to $50,000 for a second offense, and up to $100,000 for a
third and subsequent offense.
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17. Money
Laundering. N.J.S.A. 2C:21-27(a) allows
the court to impose a fine not to exceed $500,000 for money laundering.
18.
Trademark Counterfeiting. N.J.S.A.
2C:21-32(d) requires the court to impose a fine "up to threefold the
retail value of the items or services involved, providing that the fine imposed
shall not exceed the following amounts: for a crime of the fourth degree,
$100,000; for a crime of the third degree, $250,000; and for a crime of the
second degree, $500,000."
19.
Unlawful Disposition of Human Body Parts. N.J.S.A. 2C:22- 2(a) and (b) authorize a fine not to exceed $50,000
for unlawful disposition of human body parts.
20. Harm
to a Law Enforcement Animal. N.J.S.A.
2C:29-3.1(a) requires a $15,000 fine for the purposeful killing of a law
enforcement animal. N.J.S.A. 2C:29-3.1(d) requires a $1000 fine for interfering
with the use of a law enforcement animal.
21. False
Public Alarms. N.J.S.A. 2C:33-3.2 provides
that the defendant "shall be liable for a civil penalty of not less than
$2000 or actual costs incurred by or resulting from the law enforcement and
emergency services response to the false alarm, whichever is higher."
22. Parent
or Guardian's Failure to Comply With an Order Regarding Cyber Harassment. N.J.S.A. 2C:33-4.1(d) provides that "[a] parent or guardian
who fails to comply with a condition imposed by the court pursuant to
subsection c. of this section" (applicable to parents and guardians of
minors age sixteen and under who were adjudicated delinquent for cyber
harassment) "shall be fined not more than $25 for a first offense and not
more than $100 for each subsequent offense."
23.
Smoking in Public. N.J.S.A. 2C:33-13(b)
provides a $200 maximum fine for smoking in a prohibited public place.
24. Sale
of Cigarettes to a Person Under Age Nineteen.
N.J.S.A.
2C:33-13.1(a) requires the court to impose a fine as provided for a petty
disorderly persons offense (i.e. a fine up to $500) if the defendant sold or
otherwise provided tobacco to a person under age nineteen. The court may impose
a fine of twice that applicable to a petty disorderly persons offense for a
person convicted of a subsequent offense.
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25.
Under-Age Drinking. N.J.S.A. 2C:33-15(a)
requires a fine of at least $500 for under-age drinking.
26.
Leader of Narcotics Trafficking Network. N.J.S.A. 2C:35-3 provides that the court may "impose a fine
not to exceed $750,000 or five times the street value of the controlled
dangerous substance, controlled substance analog, gamma hydroxybutyrate or
flunitrazepam involved, whichever is greater."
27.
Maintaining or Operating a Drug Production Facility.
N.J.S.A.
2C:35-4 allows "a fine not to exceed $750,000 or five times the street
value of all controlled dangerous substances, controlled substance analogs,
gamma hydroxybutyrate or flunitrazepam at any time manufactured or stored at
such premises, place or facility, whichever is greater."
28.
Manufacturing and Distributing a Controlled Dangerous Substance. N.J.S.A. 2C:35-5(b) authorizes a fine up to $300,000 or $500,000,
depending on the offense, for first degree drug manufacturing and distribution;
$25,000 or $75,000 for a third degree crime (depending on the offense); and $25,000
for certain fourth degree crimes.
29.
Manufacturing and Dispensing Gamma Hydroxybutyrate.
N.J.S.A.
2C:35-5.2(b) authorizes a fine up to $150,000 for manufacturing and dispensing
gamma hydroxybutyrate.
30.
Manufacturing and Dispensing Flunitrazepam. N.J.S.A. 2C:35-5.3(b) and (c) allows a fine not to exceed $250,000
for first degree manufacturing and dispensing flunitrazepam, and $150,000 for a
second degree offense.
31.
Employing a Juvenile in a Drug Distribution Scheme.
N.J.S.A.
2C:35-6 allows "a fine not to exceed $500,000 or five times the street
value of the controlled dangerous substance or controlled substance analog
involved, whichever is greater," for employing a juvenile in a drug
distribution scheme.
32.
Manufacturing, or Dispensing Drugs on or Near School Property. N.J.S.A. 2C:35-7(a) authorizes a fine not to exceed $150,000 for
manufacturing and distributing drugs on or near school property.
33. Drug
Distribution to a Minor or a Pregnant Female.
N.J.S.A.
2C:35-8 requires the court to impose, upon application 129
of the
prosecutor, "twice the term of imprisonment, fine and penalty, including
twice the term of parole ineligibility, if any." If the defendant is
convicted of more than one offense, the court must impose one enhanced sentence
on the most serious offense. Ibid. The prosecutor must establish the basis for
the enhanced sentence by a preponderance of the evidence, and the court must
hold a hearing on the matter. Ibid.
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject
to waiver under N.J.S.A. 2C:35-12. See Chapter XIV on drug offender sentencing
for additional discussion.
34.
Possession of a Controlled Dangerous Substance or Analog.
N.J.S.A.
2C:35-10(a)(1) to (3) authorize a fine not to exceed $35,000 for third degree
drug possession, and $15,000, or $25,000 for a fourth degree crime, depending
on the circumstances.
35.
Possession of Gamma Hydroxybutyrate. N.J.S.A.
2C:35- 10.2(b) authorizes a fine up to $100,000 for possession of gamma
hydroxybutyrate.
36.
Possession of Flunitrazepam. N.J.S.A.
2C:35-10.3(b) allows a fine up to $100,000 for possession of
flunitrazepam.
37.
Distribution of a Prescription Legend Drug. N.J.S.A. 2C:35-10.5(a)(3) and (4) authorize a fine of up to
$200,000 or $300,000, depending on the circumstances, for distribution of a
prescription legend drug.
38.
Possession or Distribution of an Imitation Controlled Dangerous Substance. N.J.S.A. 2C:35-11(d) authorizes a fine not to exceed $200,000 for
possession or distribution of an imitation drug.
39.
Obtaining a Controlled Dangerous Substance by Fraud.
N.J.S.A.
2C:35-13 allows a fine up to $50,000 for fraudulently obtaining a drug.
40.
Promoting Gambling. N.J.S.A.
2C:37-2(b)(2) requires a fine not to exceed $35,000 for third degree promoting
gambling, $25,000 for a fourth degree crime, and $10,000 for a disorderly
persons offense.
41.
Possession of Gambling Records. N.J.S.A.
2C:37-3(b)(2) requires a fine not to exceed $35,000 for third degree
130
possession
of gambling records, $20,000 for fourth degree crime, and $10,000 for a
disorderly person offense.
42.
Maintenance of a Gambling Resort. N.J.S.A.
2C:37-4(a) and (b) mandate a fine not to exceed $25,000 for maintaining a
gambling resort.
43.
Producing or Possessing Chemical, Biological, or Radioactive Agents. N.J.S.A. 2C:38-3(b) requires a "fine of up to $250,000 for
each violation" for possession or production of chemical, biological, or
radioactive agents.
44.
Leader of Firearms Trafficking Network. N.J.S.A.
2C:39-16 provides that the court may also impose on the leader of a firearms
trafficking network "a fine not to exceed $500,000 or five times the value
of the firearms involved, whichever is greater."
45.
Production, Delivery of Ignition Key, Documentation Required. N.J.S.A. 2C:40-23(d) authorizes a fine not to exceed $2000 for
delivering a motor vehicle key without proper identification of the
recipient.
46.
Unlawfully Dispensing of Contact Lenses. N.J.S.A. 2C:40- 25(b)(1) to (3) require the following fines for
unlawfully dispensing contact lenses: at least $1000 for a first offense; not
less than $5000 and 40 hours of community service for a second offense; and at
least $10,000 and 100 hours of community service for a third and each
subsequent offense.
47.
Crimes Committed While Released on Bail or on One's Recognizance. N.J.S.A. 2C:44-5.1(a) requires the court impose an extended term
of imprisonment and double the fine required for the underlying crime, for any
of the following offenses if the defendant committed the offense while released
on bail or on his or her own recognizance:
- · Possession of a
firearm with intent to use it unlawfully against the person or property of
another (N.J.S.A. 2C:39-4(a));
- · Murder (N.J.S.A.
2C:11-3);
- · Manslaughter (N.J.S.A.
2C:11-4);
131
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a);
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3(a));
- · Robbery (N.J.S.A.
2C:15-1);
- · Second degree
burglary, or burglary of a structure adapted for overnight accommodations
(N.J.S.A. 2C:18-2); or
- · First, second, or
third degree assault (N.J.S.A. 2C:12- 1(b).
Notice and Hearing. The prosecutor must provide the defendant notice of intent to request a sentence under N.J.S.A. 2C:44-5.1 within fourteen days of a guilty plea or verdict. R. 3:21-4(f); N.J.S.A. 2C:44-5.1(b). The prosecutor must establish the basis for the sentence at a hearing. N.J.S.A. 2C:44-5.1(b).
C. Standards Regarding Fines: Case Law
1. Purpose of a Fine. Unlike restitution, a court imposes a fine to punish the defendant and to deter conduct that causes social harm. State v. Newman, 132 N.J. 159, 177 (1993).
2. Future Earnings. While N.J.S.A. 2C:44-2(c) "focus[es] on defendant's present financial condition," in determining the amount of a fine, the statute "does not exclude consideration of defendant's future financial circumstances." State v. Newman, 132 N.J. 159, 179 (1993).
3. Findings. The court must state on the record its reasons for imposing a fine. State v. Newman, 132 N.J. 159, 170 (1993); State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 138 N.J. 265 (1994).
4. Drug
Offender Fines.
(a) Drug-Buy Money. The court may consider money the
(a) Drug-Buy Money. The court may consider money the
defendant
received in selling drugs when determining the 132
defendant's
ability to pay a fine. State v. Newman, 132 N.J. 159, 177-79 (1993).
(b) Order
of Payment. A defendant convicted of a
drug offense must pay the Victims of Crime Compensation Board (N.J.S.A.
2C:43-3.1), laboratory fee (N.J.S.A. 2C:35-20), and the drug enforcement and
demand reduction penalty (N.J.S.A. 2C:35-15) before paying a fine. State v.
Newman, 132 N.J. 159, 178 (1993). For further discussion, see Chapter XII on
penalties, fees and assessments, and Chapter XIV on drug offender
sentencing.
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XI. RESTITUTION
The court
may exercise its discretion to require the defendant to make restitution to the
victim (see section A), unless a statute requires restitution (see section B).
Section C discusses case law on restitution.
A. Restitution
in General: Statutory Provisions
1.
General Statutory Authority for Imposing Restitution.
N.J.S.A.
2C:44-2(b)(1) and (2) provide that a court "shall" order a defendant
to make restitution if the victim "suffered a loss" and "[t]he
defendant is able to pay or, given a fair opportunity, will be able to
pay." See also N.J.S.A. 2C:43- 2(b)(1) and (4) (authorizing a restitution
award in addition to any fine or other sentence); N.J.S.A. 2C:45-1(c)
(providing for restitution as a condition of probation or sentence suspension);
N.J.S.A. 2C:46-1(a) and (b)(2) (providing for restitution installment
payments); N.J.S.A. 2C:1-2(b)(8) (stating that restitution to victims is one
purpose of the sentencing laws).
2. Amount
of Restitution. N.J.S.A. 2C:43-3(h)
provides that the restitution amount "shall not exceed the victim's
loss." In cases involving the failure to pay a State tax, the amount of
restitution shall be the full amount of the tax plus civil penalties and
interest. N.J.S.A. 2C:43-3(h).
3.
Restitution Is Conditioned Upon Loss to a Victim and Defendant's Ability to
Pay. N.J.S.A. 2C:44-2(b)(1) and
(2) condition a restitution award on the victim's suffering a loss and the
defendant's ability to pay.
4.
Restitution Is Unaffected by the Victim's Recovery From the Violent Crimes
Compensation Board. N.J.S.A.
2C:44-2(c)(2) instructs: "The court shall not reduce a restitution award
by any amount that the victim has received from the Violent Crimes Compensation
Board, but shall order the defendant to pay any restitution ordered for a loss
previously compensated by the Board to the Violent Crimes Compensation
Board."
5.
Multiple Victims. N.J.S.A.
2C:44-2(c)(2) requires the court to set priorities of payment if it orders
restitution to more than one victim.
134
6.
Findings. N.J.S.A. 2C:43-2(e)
requires the court to place on the record its rationale for imposing the
sentence.
7. Timing
of Payment. N.J.S.A. 2C:46-1(a)
provides that restitution shall be "payable forthwith" unless the
court granted "permission for the payment to be made within a specified
period of time or in specified installments." "[T]he court shall file
a copy of the judgment of conviction with the Clerk of the Superior
Court." Ibid. See also N.J.S.A. 2C:46- 1.1 (imposing transactional fees on
restitution payments).
(a)
Probation. The court may order
continued payments as a condition of probation. N.J.S.A. 2C:46-1(b)(1).
(b)
Installments and Imprisonment. Where the
defendant is sentenced to a term of imprisonment, the court may order the
defendant to make restitution installment payments. N.J.S.A.
2C:46-1(b)(2).
8.
Nonpayment. In the event the defendant
fails to pay restitution, the State may institute a summary collection action,
or take any other authorized action for the collection of a civil judgment. N.J.S.A.
2C:46-2(a) and (b). The victim may also institute summary collection
proceedings. N.J.S.A. 2C:46-2(c).
(a)
Default Without Good Cause. If after
notice and opportunity to be heard, the court finds by a preponderance of the
evidence that the default was without good cause, the court shall order the
suspension of the defendant's driver's license or prohibit the defendant from
obtaining a license, and shall take "such other actions as may be
authorized by law." N.J.S.A. 2C:46-2(a)(1)(a) and (d).
(b) Willful
Default Without Good Cause. If the
defendant's default was without good cause and was willful, the court may
impose a term of imprisonment, community service, or participation in a labor
assistance program. N.J.S.A. 2C:46-2(a)(2).
B.
Mandatory and Specific Restitution: Statutory Provisions
135
1.
Murder. N.J.S.A. 2C:11-3(c)
requires the defendant to "pay restitution to the nearest surviving
relative of the victim."
2.
Interference With Custody. N.J.S.A.
2C:13-4(f)(1) requires the court to order restitution "of all reasonable
expenses and costs, including reasonable counsel fees, incurred by the other
parent in securing the child’s return. "
3. Human
Trafficking. N.J.S.A. 2C:13-8(e)(1) and
(2) require the court to award the victim restitution which is the greater of
(1) "the gross income or value to the defendant of the victim's labor or
services," or (2) "the value of the victim's labor or services as
determined by" law.
4.
Graffiti Offenses. The following
statutes require a restitution award in the amount of the pecuniary damage the
defendant caused: N.J.S.A. 2C:17-3(c) and (e), N.J.S.A. 2C:33-10, N.J.S.A.
2C:33-11, and N.J.S.A. 2C:33-14.1(b).
5.
Burglary. N.J.S.A. 2C:18-6(b)
requires the court to order restitution to the burglarized victim.
6. Theft
of Services. N.J.S.A. 2C:20-8(k)
requires the defendant to make restitution to the vendor. "In determining
the amount of restitution, the court shall consider the costs expended by the
vendor, including but not limited to the repair and replacement of damaged
equipment, the cost of the services unlawfully obtained, investigation
expenses, and attorney fees." Ibid.
7. Theft
of Personal Identifying Information. N.J.S.A.
2C:21- 17.1 authorizes the restitution award to include costs incurred by the
victim in clearing credit.
8.
Forgery. N.J.S.A. 2C:21-17.4(c)
requires the court, upon request by the prosecutor, to impose restitution,
which may include reimbursement for expenses incurred in clearing credit
history or rating, and pursuing civil or administrative proceedings to satisfy
a debt.
9.
Violation of Minimum Wage Provisions for Employees Engaged in Public Works. N.J.S.A. 2C:21-34(c) requires restitution in the amount owed to
the employee.
10. Interfering
With a Law Enforcement Officer and Animal.
N.J.S.A.
2C:29-3.1(d) requires the court to impose restitution 136
where the
defendant interfered with the use of a law enforcement animal.
11.
Offenses Against Service Animals. N.J.S.A.
2C:29-3.2(d) requires restitution "for all damages that arise out of or
are related to the offense, including incidental and consequential damages
incurred by the handler of the service animal or guide dog."
12. Dog
Fighting. N.J.S.A. 2C:33-31(b)(1)(b)
(effective Aug. 10, 2015) requires restitution for the animal's food, shelter,
and care.
13.
Leader of a Dog Fighting Network. N.J.S.A.
2C:33- 32(b)(1)(b) (effective Aug. 10, 2015) requires restitution for the
animal's food, shelter, and care.
14. Auto
Theft. N.J.S.A. 2C:43-2.1 requires
a restitution award to be paid to the owner of the stolen car to compensate for
expenses and damages incurred as a result of the auto theft.
15. State
as Victim. N.J.S.A. 2C:43-3(h)
requires the court to order restitution where the State is the victim of the
crime.
16.
Extradition Costs. N.J.S.A. 2C:43-3.4
provides that the court may order restitution "for costs incurred by any
law enforcement entity in extraditing the defendant from another jurisdiction
if the court finds that, at the time of the extradition, the defendant was
located in the other jurisdiction in order to avoid prosecution for a crime
committed in this State or service of a criminal sentence imposed by a court of
this State."
17.
Probation or Suspension of Sentence. N.J.S.A.
2C:45-1(c) provides that the court shall order the defendant to pay restitution
where the court imposes probation or suspends the defendant's sentence.
C.
Standards Regarding Restitution: Case Law
1.
Purpose of a Restitution Award. "Our
Criminal Code contemplates two goals from a restitution order: restoration of
the victim and rehabilitation of the offender." State v. Scribner, 298
N.J. Super. 366, 371 (App. Div.), certif. denied, 150 N.J. 27 (1997).
Restitution is predominantly non-penal in
137
nature,
though it may serve a rehabilitative purpose by deterring criminal conduct.
State v. Harris, 70 N.J. 586, 593 (1976); State v. DeAngelis, 329 N.J. Super.
178, 186-88 (App. Div. 2000); State v. Krueger, 241 N.J. Super. 244, 253 (App.
Div. 1990). See also State v. Newman, 132 N.J. 159, 164-69 (1993) (discussing
the historical distinction between fines and restitution). "Imposing a
sentence of restitution that requires payment of more than a defendant can
afford would frustrate the goal of rehabilitation." State v. Newman, 132
N.J. 159, 173 (1993).
2. Burden
of Proof. The State bears the burden
of establishing the victim's loss by a preponderance of the evidence. State v.
Martinez, 392 N.J. Super. 307, 320 (App. Div. 2007). The court may accept a reasonable
estimate of the victim's loss when the State cannot calculate it with
precision. Ibid. The presentence report should address and explain the victim's
losses and the defendant's ability to pay. State In the Interest of D.G.W., 70
N.J. 488, 503-05 (1976).
3.
Hearing. Ordinarily, the court
should conduct a hearing to determine the defendant's ability to pay and the
value of the victim's loss. State v. Newman, 132 N.J. 159, 169 (1993); State v.
Martinez, 392 N.J. Super. 307, 321-22 (App. Div. 2007). But if neither party
disputes the victim's loss and the defendant's ability to pay, a hearing may be
futile. State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif.
denied, 170 N.J. 210 (2001); State in Interest of R.V., 280 N.J. Super. 118,
122- 24 (App. Div. 1995); State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div.
1994).
Evidence. Strict rules of evidence do not apply to a restitution hearing.
State v. Harris, 70 N.J. 586, 598 (1976). The defendant may cross-examine
witnesses, present evidence and challenge the presentence report. Ibid.; State
In the Interest of D.G.W., 70 N.J. 488, 506 (1976).
4. Fixed
Amount. A restitution award should
be a fixed amount. State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.),
certif. denied, 170 N.J. 210 (2001). It should not be conditioned upon an
"unknown credit" in the amount that a codefendant might pay.
Ibid.
5.
Present Inability to Pay. The court
may order restitution if the defendant is presently unable to pay, but will
likely be able to pay in the future. State in the Interest of R.V., 280
138
N.J.
Super. 118, 121-22 (App. Div. 1995). In this case, the court should reduce the
restitution award to a civil judgment, subject to future enforcement. Id. at
123.
6.
Pension Income. In setting a restitution
amount, the court may consider the defendant's pension income. State v.
Pulasty, 136 N.J. 356, 361 (holding that the non-alienability clause of the
Employee Retirement Income Security Act of 1974 (ERISA) does not prevent the
State from requiring a defendant to make restitution after pension funds have
been distributed), cert. denied, 513 U.S. 1017, 115 S. Ct. 579, 130 L. Ed. 2d
494 (1994).
7.
Pecuniary Gain Unnecessary. In order
to impose a restitution order the court need not find that the defendant
derived a pecuniary gain from the crime. State v. Martinez, 392 N.J. Super.
307, 320 (App. Div. 2007).
8. Multiple
Defendants.
(a)
Proportionality. Where a defendant was
one of multiple defendants who committed the crime, there is "a rebuttable
presumption of proportionate liability against the" defendant. State In
the Interest of D.G.W., 70 N.J. 488, 508 (1976).
(b) Joint
and Several Liability. The court
may impose joint and several liability where the facts justify it. Id. at 508
n.5 (1976); State v. Pessolano, 343 N.J. Super. 464, 479 n.10 (App. Div.),
certif. denied, 170 N.J. 210 (2001); State v. Scribner, 298 N.J. Super. 366,
371 (App. Div.), certif. denied, 150 N.J. 27 (1997).
9. Crimes
Against the State.
(a)
Corporate Officers and Taxes. N.J.S.A.
2C:43-3, "reveals a strong legislative intention to require full
restitution from those who defraud the public," including corporate
officers who fail to remit taxes on behalf of their corporations. State v.
Paone, 290 N.J. Super. 494, 496-97 (App. Div. 1996).
(b)
Drug-Buy Money. The State is not a
"victim" when the prosecutor's office purchases drugs from a
defendant as part of an undercover investigation. Thus, the court may not
impose restitution as a sanction to recover drug-buy money. State v. Newman,
132 N.J. 159, 176-77 (1993).
139
10.
Third-Party Recovery. The court may order
the defendant to pay restitution to a third party, such as an insurance
company, health provider or employer who reimbursed a victim for losses
suffered as a result of the defendant's criminal conduct. State v. Jones, 347
N.J. Super. 150, 153-54 (App. Div.), certif. denied, 172 N.J. 181 (2002)
(interpreting N.J.S.A. 2C:43-2.1); State v. Hill, 155 N.J. 270, 275-76 (1998)
(interpreting N.J.S.A. 2C:43-(e)).
11. Plea Agreements.
(a)
Disclosure. When accepting a plea, a
court should advise the defendant on the restitution implications of the guilty
plea. State v. Kennedy, 152 N.J. 413, 425-26 (1998); State v. Krueger, 241 N.J.
Super. 244, 255 (App. Div. 1990); State v. Saperstein, 202 N.J. Super. 478, 482
(App. Div. 1985).
(b)
Dismissed Charges. A court may not
impose restitution for a crime that the State dismissed in a plea agreement,
unless there is (1) "a relationship between the restitution and the goal
of rehabilitation with respect to the offense for which the defendant is being
sentenced," and (2) "an adequate factual basis supportive of the
restitution." State v. Krueger, 241 N.J. Super. 244, 252 (App. Div. 1990)
(quoting State v. Bausch, 83 N.J. 425, 435 (1980)); State v. Corpi, 297 N.J.
Super. 86, 91-92 (App. Div.), certif. denied, 149 N.J. 407 (1997).
12.
Pretrial Intervention Program. The court
may impose restitution as a condition of the pretrial intervention program.
State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994) (analogizing
the pretrial intervention program with probation).
13.
Appellate Review. Restitution is within
the court's discretion and thus will not be reversed on appeal unless it
amounts to an abuse of discretion. State v. Harris, 70 N.J. 586, 598-99 (1976);
State v. Martinez, 392 N.J. Super. 307, 318- 19 (App. Div. 2007).
14.
Resentencing After a Probation Violation. If the defendant violated a term of probation and the court
revokes probation and imposes a term of imprisonment, the court may reconsider
its initial restitution award, but need not do so. State v. Zeliff, 236 N.J.
Super. 166, 171 (App. Div. 1989).
140
15.
Double Jeopardy. A restitution award
may be increased on resentencing after remand without offending double jeopardy
principles. State v. Rhoda, 206 N.J. Super. 584, 590 (App. Div.), certif.
denied, 105 N.J. 524 (1986).
16. Cruel
and Unusual Punishment. A
restitution order does not violate the Federal or State constitutional
prohibition against cruel and unusual punishment, even if the defendant entered
a civil settlement agreement with the victim. State v. DeAngelis, 329 N.J.
Super. 178, 189-90 (App. Div. 2000).
17.
Payment Collection. The procedure for
collecting restitution is governed by the Model Collection Process by the Chief
Probation Officers, approved by the Administrative Office of the Courts as of
September 22, 1997. Felicioni v. Admin. Office of the Courts, 404 N.J. Super.
382, 389-90 (App. Div. 2008), certif. granted, 203 N.J. 440 (2010). See also
Cannel, New Jersey Criminal Code Annotated, comment 7 on N.J.S.A. 2C:44- 2 at
1215 (2016-2017).
18. Order
of Payments. According to the guidelines,
"where there are multiple convictions, assessments are to be paid off
chronologically, by the date of the restitution order. All assessments for the
earliest conviction are to be collected and disbursed first, before moving on
to the next-in-time judgment of conviction." Felicioni v. Admin. Office of
the Courts, 404 N.J. Super. 382, 390 (App. Div. 2008), certif. granted, 203
N.J. 440 (2010).
(a)
Victim's Rights. The first-in-time
policy does not violate a victim's rights under the New Jersey Civil Rights Act
or the federal or State due process or equal protection clauses. Felicioni v.
Admin. Office of the Courts, 404 N.J. Super. 382, 397-401 (App. Div. 2008),
certif. granted, 203 N.J. 440 (2010).
(b)
Multiple Orders in One Day. "[W]hen
multiple restitution orders are issued against a criminal defendant on the same
day, . . . the restitution orders are processed based on the date of the
indictment with which each is associated, with the earliest indictment being
entered first." Felicioni v. Admin. Office of the Courts, 404 N.J. Super.
382, 391 (App. Div. 2008), certif. granted, 203 N.J. 440 (2010). Restitution
payments will be distributed on a pro-rated basis "only when a court
specifically so orders,
141
or there
are multiple victims listed on the same restitution order." Ibid.
(c)
Court's Discretion. In the exercise of
discretion, a sentencing judge "may order a different priority based on
the amount of restitution owed to, or the financial circumstances of, the
requesting recipient, or may even order that restitution payments be disbursed
regardless of the recipient's individual circumstances on a pro-rata
basis." Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382, 395
(App. Div. 2008), certif. granted, 203 N.J. 440 (2010).
19. Civil
Damages. A restitution order does
not preclude a victim from obtaining civil damages against the defendant. State
v. Harris, 70 N.J. 586, 597-98 (1976). However, if the victim obtains a civil
judgment, the award must be reduced by any restitution the victim received to
avoid a double recovery. State v. DeAngelis, 329 N.J. Super. 178, 184 (App.
Div. 2000).
20.
Bankruptcy. Where a restitution order
is converted to a civil judgment in favor of the State, the debt may not be
discharged in a bankruptcy proceeding. State v. Kemprowski, 265 N.J. Super.
471, 472-74 (App. Div. 1993).
142
XII. PENALTIES,
FEES, ASSESSMENTS AND
REGISTRATIONS
Penalties,
fees, assessments, and registrations are required by statute (see section A).
Unless the court authorizes otherwise, with respect to a monetary penalty, a
fee, or an assessment, a defendant is expected to make payment in full
following sentencing (see section B). Section C discusses relevant case
law.
Note: The Sixth Amendment requires that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). In the case of a guilty plea, the
maximum sentence authorized by statute is the maximum sentence supported by the
defendant's admissions. State v. Franklin, 184 N.J. 516, 537-38 (2005)
(interpreting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531,
2541, 159 L. Ed. 2d 403, 403 (2004)). The defendant may also "consent to
judicial factfinding as to sentence enhancements." State v. Franklin, 184
N.J. 516, 538 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 309-11, 124
S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 403 (2004)). In Alleyne v. United States,
___ U.S. ___, ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013), the
Court extended Apprendi to mandatory minimum terms. Thus, the jury, not the
court, must find a fact that increases the mandatory minimum term. State v.
Grate, 220 N.J. 317, 334-35 (2015) (finding invalid under Alleyne a mandatory
parole disqualifier based on the court's finding that the defendant was
involved in organized crime). No published New Jersey decision has yet to
decide whether these rules apply to penalties, fees, and assessments. However,
in Southern Union Co. v. United States, ___ U.S. ___, ___, 132 S. Ct. 2344,
2350, 183 L. Ed. 2d 318, 326 (2012), the Court found Apprendi applicable to
fines.
A.
Penalties, Fees, Assessments and Registrations: Statutory Provisions
1.
Registration Requirements and Penalties for "Sex Offenders" (also
known as Megan's Law).
143
(a)
Megan's Law Registration Requirements. N.J.S.A.
2C:7- 1 to -23 sets forth registration and public notification requirements for
a person who committed a "sex offense." Pursuant to N.J.S.A.
2C:7-2(b), a sex offense includes the following crimes:
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Sexual assault
(N.J.S.A. 2C:14-1));
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14- 3(a);
- · Kidnapping (N.J.S.A.
2C:13-1(c)(2));
- · Endangering the
welfare of a child by engaging in sexual conduct that would impair or
debauch the morals of the child (N.J.S.A. 2C:24-4(a));
- · Endangering the
welfare of a child (N.J.S.A. 2C:24- 4(b) (3) or (4) or (5)(a));
- · Luring or enticing a
child (N.J.S.A. 2C:13-6);
- · Criminal sexual
contact of a minor (N.J.S.A. 2C:14-
3(b);
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Criminal restraint
(N.J.S.A. 2C:13-2);
- · False imprisonment
"if the victim is a minor and the offender is not the parent of the
victim" (N.J.S.A. 2C:13-3; and
- · Knowingly promoting
prostitution of a child (N.J.S.A. 2C:34-1(b)(3) or (4)).
Failure
to comply with Megan's Law registration requirements is a third degree crime.
N.J.S.A. 2C:7- 2(d)(1) and (2).
(b)
Megan's Law Penalties. N.J.S.A.
2C:14-10(a) provides that in addition to any other fine, fee, assessment or
penalty authorized by Title 2C, a person convicted of a sex
144
offense,
as defined by N.J.S.A. 2C:7-2(b), "shall be assessed a penalty for each
such offense not to exceed:"
· $2000 for a first
degree crime;
· $1000 for a second degree crime;
· $750 for a third degree crime; and · $500 for a fourth degree crime.
· $1000 for a second degree crime;
· $750 for a third degree crime; and · $500 for a fourth degree crime.
2. Death
by Auto or Vessel. N.J.S.A.
2C:11-5(b)(4) requires the court to impose a suspension to operate a motor
vehicle for a period between five years to life, to commence upon the
expiration of any prison term, if the defendant committed the homicide while
operating a vehicle in violation of N.J.S.A. 39:4-50 (driving while
intoxicated) or N.J.S.A. 39:4-50.4(a) (revocation for refusal to submit to
breath test). N.J.S.A. 2C:11-5(e) provides that if the defendant committed
first degree vehicular homicide (N.J.S.A. 2C:11-5(b)(3)), the defendant shall
forfeit the auto or vessel, unless the defendant can establish by a
preponderance of evidence that forfeiture would constitute a serious hardship
to the family of the defendant, which outweighs the need to deter.
3.
Stalking. N.J.S.A. 2C:12-10.1(a)
provides that "[a] judgment of conviction for stalking shall operate as an
application for a permanent restraining order limiting the contact of the
defendant and the victim who was stalked." Unless the victim requests otherwise,
the court must hold the hearing on the restraining order at the time of the
guilty plea or verdict. N.J.S.A. 2C:12-10.1(b).
4.
Assisting in Human Trafficking. N.J.S.A.
2C:13-9(c)(2) provides that "the court shall direct any issuing State,
county, or municipal governmental agency to revoke any license, permit,
certificate, approval, registration, charter, or similar form of business or
professional authorization required by law concerning the operation of that
person's business or profession, if that business or profession was used in the
course of the crime."
5. Bias
Intimidation. N.J.S.A. 2C:16-1(f)(1) to
(3) allows the court to order a person convicted of bias intimidation to (1)
complete a sensitivity class or program, (2) participate in counseling to reduce
violent or antisocial behavior, or (3) make
145
payments
or other compensation to a community-based program or local agency that
provides services to victims of bias intimidation.
6.
Graffiti. N.J.S.A. 2C:17-3(c)
provides that if the court imposes community service, the service must be at
least twenty days in length or the time it takes to remove thee graffiti.
7. Auto
Theft. N.J.S.A. 2C:20-2.1(a)(1) to
(3) requires a penalty of $500 and a one-year suspension or postponement of the
person's driver's license for a first offense of auto theft, a $750 penalty and
two-year license suspension for a second offense, and a $1000 penalty and
ten-year license suspension for a third or subsequent offense.
8.
Removal of Headstones and Markers From Gravesites.
N.J.S.A.
2C:20-2.3(c) requires the court to impose up to thirty days of community
service for the unlawful removal of a headstone of gravesite marker.
9. Theft
by a Fiduciary, Leader of a Cargo Theft Network or Cargo Theft Sales. N.J.S.A. 2C:20-2.5(a)(1) to (3) requires the court to impose: (1)
a $5000 penalty for first degree theft by a fiduciary or cargo theft; (2) a
$2500 penalty for a second degree crime; and (3) a $500 penalty for a third
degree crime.
10.
Shoplifting. N.J.S.A. 2C:20-11(c)
provides that any person convicted of shoplifting shall be sentenced to perform
at least ten days of community service for a first offense, at least fifteen
days of community service for a second offense, and a maximum of twenty-five
days of community service plus at least ninety days imprisonment for third or
subsequent offense.
11.
Operation of a Facility for Sale of Stolen Automobile Parts. N.J.S.A. 2C:20-16(b) requires forfeiture of one's driver's license
for three to five years.
12.
Offenses Involving False Government Documents. N.J.S.A. 2C:21-2.1(e) requires suspension of the defendant's
driver's license for six months and two years.
13.
Pirating Recordings. N.J.S.A. 2C:21-21(e)
provides that all recordings and equipment used in the crime shall be subject
to forfeiture.
146
14. Money
Laundering and Illegal Investment. N.J.S.A.
2C:21- 27.1 and N.J.S.A. 2C:21-27.2(a) to (c) requires the court to impose,
upon application of the prosecutor, a penalty of $500,000 for first degree
money laundering, $250,000 for a second degree crime, $75,000 for a third
degree crime, or three times the value of any property involved in a money
laundering activity. If the prosecutor requests the penalty of three times the
value of property involved, the prosecutor must establish the basis for the
penalty by a preponderance of the evidence. N.J.S.A. 2C:21-27.2(c). N.J.S.A.
2C:21-27.3 prohibits the court from reducing or revoking the penalty. N.J.S.A.
2C:21-27.4 allows the court to create a payment schedule for good cause shown.
N.J.S.A. 2C:21-27.5 requires the penalty be imposed "in addition to and
not in lieu of any forfeiture or other cause of action instituted pursuant to
chapter 41 or 64 of Title 2C of the New Jersey Statutes."
15.
Fleeing Arrest While in an Automobile. N.J.S.A.
2C:29-2(b) requires a driver's license suspension between six months and two
years for fleeing arrest while in an automobile.
16.
Domestic Violence Offenses. N.J.S.A.
2C:25-27 provides that the court may enter a restraining order and may require
the defendant to receive counseling for a crime or offense involving domestic
violence. N.J.S.A. 2C:25-30 and -31 address the consequences of violating a
restraining order. N.J.S.A. 2C:25- 29.4 requires a $100 surcharge to fund
grants for domestic violence prevention, training, and assessment.
17.
Public Corruption Profiteering. N.J.S.A.
2C:30-8(c)(1) to (5) requires the court, upon application of the prosecutor, to
impose a penalty "when a person is convicted of a crime or an attempt or
conspiracy to commit a crime involving the negotiation, award, performance or
payment of a local, county or State contract, including, but not limited
to" violations of any provision in Chapters 21 or 27 to 30 of Title 2C.
N.J.S.A. 2C:30-8(d)(1) and (2) provides the following penalty values: $500,000
for a first degree crime; $250,000 for a second degree crime; $75,000 for a
third degree crime; or "an amount equal to three times the value of any
property involved in" an included offense. N.J.S.A. 2C:30-8(g) authorizes
a payment schedule for good cause shown.
18. False
Public Alarm Offense. N.J.S.A. 2C:33-3.1(a)
and (b) require the court to suspend for six months the driver's license
147
for a
false public alarm offense by anyone age twenty-one and under.
19.
Graffiti That Implies Threats or Violence. N.J.S.A. 2C:33- 10 requires that if the court orders the defendant
to community service, the service must include removal of the graffiti,
"if appropriate," and must be "not less than twenty days nor
less than the number of days necessary to remove the graffiti."
20.
Desecrating Religious or Sectarian Premises. N.J.S.A. 2C:33-11 provides that if the court orders community
service, the service must include removal of the graffiti, "if
appropriate," and must be "not less than twenty days or not less than
the number of days necessary to remove the graffiti."
21.
Vandalizing a Railroad Crossing Device. N.J.S.A.
2C:33- 14.1(b) provides that if the court orders community service, the service
must include removal of the graffiti, "if appropriate," and must be
"not less than twenty days or not less than the number of days necessary
to remove the graffiti."
22.
Under-Age Drinking. N.J.S.A. 2C:33-15(b)
requires the court to suspend the defendant's driving license for six months if
the defendant was drinking under age while inside a vehicle.
23.
Leader of a Dog Fighting Network. N.J.S.A.
2C:33-32(b)(2) (effective Aug. 10, 2015) provides that the court may prohibit
the defendant from possessing another animal "for any period of time the
court deems reasonable."
24.
Prostitution Driver's License Suspension for Certain Patrons. N.J.S.A. 2C:34-1(c)(5) provides that the court must suspend the
defendant's driver's license for six months if the defendant used a vehicle
during the crime.
25.
Prostitution Penalties for Certain Patrons. N.J.S.A. 2C:34-1(f)(2) requires the court to impose on a defendant
convicted of promoting prostitution a penalty of at least $10,000 but not more
than $50,000, except if the offense involved promotion of child prostitution,
then the penalty shall be at least $25,000.
26.
Prostitution Offender Program. Pursuant
to N.J.S.A. 2C:34- 1.2(a), a person convicted of a disorderly persons offense
of engaging in prostitution as a patron must participate in the Prostitution
Offender Program, unless the prosecutor waives
148
participation.
If the court orders a person convicted of engaging in prostitution as a patron
to participate in the Prostitution Offender Program, the person must contribute
$500 to the cost of the program. N.J.S.A. 2C:34-1.2(b).
27. Drug
Offender Restraining Orders. N.J.S.A.
2C:35-5.7(h) provides: " When a person is convicted of or adjudicated
delinquent for any criminal offense, the court, upon application of a law
enforcement officer or prosecuting attorney pursuant to N.J.S.A. 2C:35-5.9
[certification of offense location] and except as provided in subsection e. of
this section, shall, by separate order or within the judgment of conviction,
issue an order prohibiting the person from entering" the place where the
offense occurred.
(a)
Exception. N.J.S.A. 2C:35-5.7(e)
provides: "The court may forego issuing a restraining order . . . only if
the defendant establishes by clear and convincing evidence that":
(1)
"the defendant lawfully resides at or has legitimate business on or near
the place, or otherwise legitimately needs to enter the place. In such an
event, the court shall not issue" a restraining order "unless the
court is clearly convinced that the need to bar the person from the place in
order to protect the public safety and the rights, safety and health of the
residents and persons working in the place outweighs the person's interest in
returning to the place." The court may also impose an order permitting
entry with conditions; or
(2)
imposition of a restraining order "would cause undue hardship to innocent
persons and would constitute a serious injustice which overrides the need to
protect the rights, safety and health of persons residing in or having business
in the place."
(b)
Appeal by the State. If the court denies a
request to impose a restraining order, the sentence shall not be final for ten
days to allow the State time to file an appeal. N.J.S.A. 2C:35-5.7(k).
28. Drug
Enforcement and Demand Reduction Penalty for Certain Offenses. N.J.S.A. 2C:35-5.11 provides: "Any person who possesses,
distributes, dispenses or has under his control with
149
intent to
distribute or dispense 3,4-methylenedioxymeth- amphetamine,
3,4-methylenedioxyamphetamine, gammabutyrolactone, gamma hydroxybutyrate or
flunitrazepam, or a controlled substance analog of any of these substances,
shall, . . . be subject to a drug enforcement and demand reduction penalty of
twice the amount otherwise applicable to the offense."
29. Drug
Distribution to a Minor or a Pregnant Female.
N.J.S.A.
2C:35-8 requires the court to impose, upon application of the prosecutor,
"twice the term of imprisonment, fine and penalty, including twice the
term of parole ineligibility, if any, authorized or required to be imposed
by" N.J.S.A. 2C:35- 5(b) (drug distribution) or N.J.S.A. 2C:35-7
(distribution within a school zone) "or any other provision of this
title." If the defendant is convicted of more than one offense, the court
must impose one enhanced sentence on the most serious offense. Ibid. The prosecutor
must establish the basis for the enhanced sentence by a preponderance of the
evidence, and the court must hold a hearing on the matter. Ibid.
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject
to waiver under N.J.S.A. 2C:35-12. See Chapter XIV on drug offender sentencing
for additional discussion.
30.
Possession of a Controlled Dangerous Substance or Analog.
N.J.S.A.
2C:35-10(a) requires the defendant to "perform not less than 100 hours of
community service" if the court does not impose a prison term and the
defendant committed the crime while inside a school bus or within 1000 feet of
school property.
31. Drug
Enforcement and Demand Reduction Penalty. N.J.S.A. 2C:35-15(a)(1) requires the court to impose the following
drug enforcement and demand reduction (DEDR) penalties on anyone convicted of a
Chapter 35 or 36 drug offense:
- · $3000 for a first
degree crime;
- · $2000 for a second
degree crime;
- · $1000 for a third
degree crime;
- · $750 for a fourth
degree crime; and
- · $500 for a disorderly
persons or petty disorderly persons offense.
150
(a)
Multiple Offenses. N.J.S.A.
2C:35-15(a)(2)(a) and (b) provide that the court may, in its discretion, impose
one penalty based on the highest degree offense if: (1) the defendant was not
placed in supervisory treatment or ordered to perform reformative service; (2)
"multiple penalties would constitute a serious hardship that outweighs the
need to deter the defendant from future criminal activity"; and (3)
"imposition of a single penalty would foster the defendant's
rehabilitation."
(b)
Treatment Program in Lieu of Payment. N.J.S.A.
2C:35- 15(e) authorizes the court to suspend collection of the penalty
"provided the person is ordered by the court to participate in a drug or
alcohol rehabilitation program," and the defendant "agrees to pay for
all or some portion of the costs associated with the rehabilitation." Upon
proof of successful completion of the program the defendant may request the
court reduce the penalty by any amount the defendant paid for participation in
the program. Ibid.
(c)
Service in Lieu of Payment. N.J.S.A.
2C:35-15(f) provides that the defendant "may propose to the court and the
prosecutor a plan to perform reformative service in lieu of payment of up to
one-half of the penalty amount imposed."
32. Drug
Offenses and License Forfeiture. N.J.S.A.
2C:35- 16(a) requires forfeiture of a defendant's driver's license for a period
between six months and two years absent compelling circumstances and upon
conviction of a drug offense under Chapter 35 or 36 of Title 2C.
"[C]ompelling circumstances warranting an exception exist if the
forfeiture . . . will result in extreme hardship and alternative means of
transportation are not available."
Post-Sentencing
Motion to Revoke the License Suspension.
N.J.S.A.
2C:35-16(d) allows the defendant to request the court revoke a remaining
license suspension term based on compelling circumstances.
33.
Controlled Dangerous Substance Lab Fee. N.J.S.A.
2C:35- 20(a) and (b) require that a $50 criminal laboratory analysis fee be
imposed on anyone convicted of a Chapter 35 drug offense; a $50 criminal
laboratory fee be imposed on anyone placed in supervisory treatment pursuant to
N.J.S.A. 2C:36A-1 or N.J.S.A.
151
2C:43-12;
and a $25 laboratory analysis fee be imposed on anyone adjudicated delinquent
for a Chapter 35 offense.
34.
Anti-Drug Profiteering Penalty. N.J.S.A.
2C:35A-4(a)(1) to (3) requires the court impose the following penalties for
certain drug offenders in accordance with the criteria set forth in N.J.S.A.
2C:35A-3:
- · $200,000 for a first
degree crime; $100,000 for a second degree crime; $50,000 for a third
degree crime; and $25,000 for a fourth degree crime; or
- · "three times the
street value of all controlled dangerous substances or controlled
substance analogs involved, or three times the market value of all drug
paraphernalia involved, if this amount is greater than that provided"
above; or
- · "an amount equal
to three times the value of any benefit illegally obtained by the actor
for himself or another, or any injury to or benefit deprived of
another."
Note: This statute is subject to the N.J.S.A. 2C:35-12 waiver provision, discussed further in Chapter XIV on drug offender sentencing.
35.
Unlawful Transfer of a Firearm. N.J.S.A.
2C:39-10(a)(3) and (4) require the court to revoke a dealer's license for the
unlawful transfer of firearms in certain situations.
36.
Causing Death or Injury While Driving With a Suspended License or Without a
License. N.J.S.A. 2C:40-22(a) and
(b) require the court to suspend the defendant's driver's license for one year
where the defendant caused death while driving without a valid license. The
license shall run consecutively to any current driver's license suspension.
N.J.S.A. 2C:40-22(a) and (b).
37.
Unauthorized Use of a Traffic Control Preemption Device.
N.J.S.A.
2C:40-24(d) requires the court to impose a civil penalty not to exceed $5000
for unauthorized use of a traffic control preemption device.
38.
Crimes With Automobiles. N.J.S.A.
2C:43-2(c) authorizes the court to suspend, postpone or revoke a defendant's
driver's license for a period not to exceed two years where the defendant
152
used a
motor vehicle in the course of a crime, disorderly persons offense, or petty
disorderly persons offense. In deciding whether to suspend, postpone or revoke
a license and in fixing the length of the suspension, the court must consider
"the severity of the crime or offense and the potential effect of the loss
of driving privileges on the person's ability to be rehabilitated." Ibid.
In the event the court suspends, postpones or revokes driving privileges, the
suspension "shall be imposed consecutively with any custodial
sentence." Ibid.
39.
Serological Testing. N.J.S.A. 2C:43-2.2(a)
provides for the serological testing of the defendant "for acquired immune
deficiency syndrome (AIDS) or infection with the human immunodeficiency virus
(HIV) or any other related virus identified as a probable causative agent of
AIDS" in certain cases where a person suffered a prick from a hypodermic
needle or the defendant's bodily fluids were transmitted. The court may order
the defendant to pay the cost of the testing. N.J.S.A. 2C:43-2.3(c).
40. Victims of
Crime Compensation Board (VCCB) Assessments.
(a)
Certain Crimes Resulting in Injury or Death. N.J.S.A. 2C:43-3.1(a)(1) requires the court to assess at least
$100 and not more than $10,000 for each of the following offenses if the
defendant injured or killed the victim:
- · "[A] crime of
violence"; or
- · Theft of an automobile
(N.J.S.A. 2C:20-2); or
- · Eluding a law
enforcement officer (N.J.S.A. 2C:29- 2(b)); or
- · Unlawful taking of a
motor vehicle (N.J.S.A. 2C:20- 10(b), (c) or (d)).
In imposing an assessment under N.J.S.A. 2C:43-3.1(a)(1), "the court shall consider factors such as the severity of the crime, the defendant's criminal record, defendant's ability to pay and the economic impact of the assessment on the defendant's dependents."
(b) Offenses Not Resulting in Injury. N.J.S.A. 2C:43- 3.1(a)(2)(a) mandates a $50 assessment be imposed for each crime, disorderly person offense, or petty disorderly
153
person
offense the defendant committed that did not result in injury.
(c)
Juvenile Offenders. N.J.S.A.
2C:43-3.1(a)(2)(b) requires for each adjudication of delinquency an assessment
of at least $30 and not more than "the amount which could be assessed
pursuant to paragraph (1) or paragraph (2) (a) of subsection a. of this section
if the offense was committed by an adult."
(d)
Driving or Operating a Vessel While Impaired.
N.J.S.A.
2C:43-3.1(a)(2)(c) provides that any person convicted of operating a motor
vehicle or vessel while under the influence of alcohol or drugs
"shall" be assessed $50 payable to the VCCB.
(e)
Supervisory Treatment and Conditional Discharge.
N.J.S.A.
2C:43-3.1(a)(2)(d) provides: "In addition to any term or condition that
may be included in an agreement for supervisory treatment pursuant to N.J.S.A.
2C:43-13, or imposed as a term or condition of conditional discharge pursuant
to N.J.S.A. 36A-1, a participant in either program shall be required to pay an
assessment of $50."
41. Safe
Neighborhoods Services Assessment. N.J.S.A.
2C:43-3.2(a) requires any person convicted of a crime, a disorderly persons or
petty disorderly persons offense, or a drunk driving offense to be assessed $75
per conviction to be deposited into the Safe Neighborhoods Services Fund
(SNSF).
42. Law
Enforcement Officers Training and Equipment Assessment.
N.J.S.A.
2C:43-3.3(a) requires the court to impose a $30 penalty on any adult convicted
of a crime, for deposit into the Law Enforcement Officers Training and
Equipment Fund. A juvenile shall be assessed a $15 penalty. N.J.S.A.
2C:43-3.3(b).
43. Drug
Abuse Education Assessment. N.J.S.A.
2C:43-3.5(a) requires the court to impose a $50 assessment for each drug
offense under Chapter 35 or 36 of Title 2C.
44.
Sexual Assault Nurse Examiner Program Assessment. N.J.S.A. 2C:43-3.6(a) requires an $800 assessment for any sex
offense defined in N.J.S.A. 2C:7-2.
45.
Surcharge for Certain Sex Offenders. N.J.S.A.
2C:43-3.7 requires any person convicted of aggravated sexual assault
154
(N.J.S.A.
2C:14-2(a)), sexual assault (N.J.S.A. 2C:14-2(b)), aggravated criminal sexual
contact (N.J.S.A. 2C:14-3(a)), or criminal sexual contact (N.J.S.A.
2C:14-3(b)), to pay a $100 surcharge to fund programs and grants for the
prevention of violence against women.
46.
Computer Crime Prevention Penalty. N.J.S.A.
2C:43-3.8(a) provides that any person convicted of depicting a child engaging
in a prohibited sexual act (N.J.S.A. 2C:24-4(b)(5)), child obscenity (N.J.S.A.
2C:34-3), or an offense involving computer criminal activity contrary to any
provision within Chapter 20 of Title 2C (theft offenses), shall be assessed the
following penalties to be deposited in the Computer Crime Prevention
Fund:
· $2000 for a first
degree crime;
· $1000 for an second degree crime;
· $750 for a third degree crime;
· $500 for a fourth degree crime; and
· $250 for a disorderly persons offense.
· $1000 for an second degree crime;
· $750 for a third degree crime;
· $500 for a fourth degree crime; and
· $250 for a disorderly persons offense.
47.
Restricted Internet Access. N.J.S.A.
2C:43-6.6(a)(1) to (4) provides that any person who (1) committed a sex offense
as defined in N.J.S.A. 2C:7-2(b) and is required to register under Megan's Law
(N.J.S.A. 2C:7-2); or (2) is serving a special sentence of parole supervision
under N.J.S.A. 2C:43-6.4, or has been convicted of promoting or providing
obscene materials to a minor (N.J.S.A. 2C:34-3), "shall" be subject
to the following Internet access conditions "where the trier of fact makes
a finding that a computer or any other device with Internet capability was used
to facilitate the commission of the crime":
(1)
Prohibited access of "a computer or any other device with Internet
capability without the prior written approval of the court," with the
exception that a person on probation or parole "may use a computer or any
other device with Internet capability in connection with that person's
employment" or to "search for employment with the prior approval of
the person's probation or parole officer";
(2)
"[P]eriodic unannounced examinations of the person's computer . . .
including the retrieval and copying of all
155
data . .
. and removal of such information, equipment or device to conduct a more
thorough inspection";
(3)
Installation, "at the person's expense, [of] one or more hardware or
software systems to monitor the Internet use"; and
(4)
"[A]ny other appropriate restrictions concerning the person's use or
access of a computer or any other device with Internet capability."
A
violation of the Internet access restrictions constitutes a fourth degree
crime. N.J.S.A. 2C:43-6.6(b).
48. Sex
Offender Restraining Order. N.J.S.A.
2C:44-8 authorizes the court to enter an order restraining a sex offender from
contact with the victim or the victim's family and from entering certain
locations.
49.
Probation or Suspension of Sentence. N.J.S.A.
2C:45-1(c) requires the defendant to pay a victims of crime compensation board
assessment (N.J.S.A. 2C:43-3.1), where the court imposes probation or suspends
the defendant's sentence.
B.
Payment of Penalties, Fees and Assessments: Statutory Provisions
1.
Statutory Authority for Timing of Payment. N.J.S.A. 2C:46- 1(a) provides that a penalty, fee and assessment
shall be "payable forthwith" unless the court grants "permission
for the payment to be made within a specified period of time or in specified
installments." "[T]he court shall file a copy of the judgment of
conviction with the Clerk of the Superior Court." Ibid. N.J.S.A. 2C:46-1(d)(1)
and N.J.S.A. 2C:46-1.1(a) also impose transactional fees.
2.
Payments While on Probation. The court
may order continued payments as a condition of probation. N.J.S.A.
2C:46-1(b)(1).
3.
Installment Payments While Incarcerated. Where the defendant is sentenced to a term of imprisonment, the
court may order the defendant to make installment payments. N.J.S.A.
2C:46-1(b)(2).
156
4.
Nonpayment. In the event the defendant
fails to pay, the State may institute a summary collection action or take any
other authorized action for the collection of a civil judgment. N.J.S.A.
2C:46-2(a) and (b). If the default is without good cause, the court shall order
the suspension of the defendant's driver's license or prohibit the defendant
from obtaining a license, and take "such other actions as may be
authorized by law." N.J.S.A. 2C:46-2(a)(1)(a) to (d).
5.
Willful Nonpayment. If the defendant's
default was without good cause and was willful, the court may imprison the
defendant, order participation in a labor assistance program, or order
community service. N.J.S.A. 2C:46-2(a)(2).
C. Penalties,
Fees and Assessments: Case Law
1.
Merger. The court may not impose
penalties and assessments on a merged conviction. State v. Francis, 341 N.J.
Super. 67, 69 (App. Div. 2001).
2. Sex
Crime Victims Treatment, Setting the Penalty Amount.
The sex
offender penalty amounts listed in N.J.S.A. 2C:14-10(a) are the maximum
penalties the court may impose. State v. Bolvito, 217 N.J. 221, 224 (2014). In
fixing the penalty amount, the court should consider the nature of the offense
and the defendant's ability to pay. Id. at 233-35.
3.
Megan's Law Offenses. While Megan's Law
requires registration for "sex offenses," the N.J.S.A. 2C:7-2(b)
offenses that define a sex offense encompass more than just sex offenses; they
include non-sex crimes against children. In re T.T., 188 N.J. 321, 333
(2006).
4. Victims of
Crime Compensation Board (VCCB) Assessment.
(a)
Mandatory Assessments. The
N.J.S.A. 2C:43-3.1 VCCB assessments are mandatory and may not be withheld, even
if the defendant has limited financial resources. State v. Malia, 287 N.J.
Super. 198, 208 (App. Div. 1996).
(b)
Defendant's Ability to Pay. A court
may not impose the maximum assessment on the ground that the defendant
"might come into a substantial amount of money in the future. . . . There
must be some relationship between defendant's ability to pay over the course of
his
157
incarceration
and parole, and the actual VCCB penalty imposed." State v. Gallagher, 286
N.J. Super. 1, 23 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).
(c)
Injury to the Victim. "Mental or
nervous shock" constitutes injury for purposes of the victim of crime
compensation board assessment. State v. Diaz, 188 N.J. Super. 504, 508 (App.
Div. 1983). Thus, when a robber threatens a victim "as if he had a
gun," one may infer that the victim suffered an injury, "no matter
how transitory." Ibid.
(d) Lack
of Injury. If there is no proof of
injury to the victim, the court may not impose an assessment greater than the
minimum penalty. State v. Thompson, 199 N.J. Super. 142, 144-45 (App. Div.
1985).
(e)
Refusal to Submit to a Breathalyzer. The
court may not impose an assessment for refusing to submit to a breathalyzer
test. State v. Tekel, 281 N.J. Super. 502, 510-11 (App. Div. 1995).
(f)
Standard of Review. A court reviews the
amount of the VCCB penalty under the abuse of discretion standard. State v.
Diaz, 188 N.J. Super. 504, 507-08 (App. Div. 1983).
5.
Domestic Violence Surcharge, Attempt Excluded. The court may not order a defendant convicted of attempted murder
to pay a domestic violence surcharge. State v. Lee, 411 N.J. Super. 349, 353
(App. Div. 2010).
6.
Offenses with Automobiles. In order
to suspend, postpone or revoke a driver's license under N.J.S.A. 2C:43-2(c),
the defendant must have committed the offense with an automobile. State v.
Gross, 225 N.J. Super. 28, 31 (App. Div. 1988). The court may not revoke a
license under N.J.S.A. 2C:43-2(c) for possession of a vehicle knowing that the
vehicle identification number had been removed. Ibid.
7. Drug
Offense Penalties.
(a)
Conspiracy. "[T]he mere conviction
under N.J.S.A. 2C:5-2 for the 'ordinary' crime of conspiracy, does not render a
person subject to the mandatory penalties of the Comprehensive Drug Reform Act,
even if the object of that conspiracy constitutes a Chapter 35 offense."
State in the
158
Interest
of W.M., 237 N.J. Super. 111, 118 (App. Div. 1989).
(b)
Accomplices. A defendant convicted of a
drug offense as an accomplice is subject to the mandatory drug offense
penalties. State v. Bram, 246 N.J. Super. 200, 208 (Law Div. 1990).
8. Drug
Offender Restraining Orders. Where the
court denies a N.J.S.A. 2C:35-5.7(h) request to impose a drug offender
restraining order, N.J.S.A. 2C:35-5.7(k) imposes a ten-day limitation period on
the State's right to appeal. State v. Fitzpatrick, 443 N.J. Super. 316, 320
(App. Div. 2015).
9. Drug
Offense License Suspension.
(a)
Multiple Offenses. Where a court imposes
sentence for multiple drug offenses subject to the mandatory forfeitures of
one's driver's license, pursuant to N.J.S.A. 2C:35-16, the license suspension
terms may vary in duration, but must run concurrently. State in the Interest of
T.B., 134 N.J. 382, 387 (1993).
(b)
Timing. License suspension under
N.J.S.A. 2C:35-16 begins on the day of sentencing; the court has no discretion
to postpone or delay it. State v. Hudson, 286 N.J. Super. 149, 154-55 (App.
Div. 1995). In the case of a juvenile, license suspension begins the day after
the defendant turns seventeen. State in the Interest of T.B., 134 N.J. 382, 388
(1993); State in the Interest of J.R., 244 N.J. Super. 630, 641 (App. Div.
1990). If the defendant's license is under suspension at the time of
sentencing, then the new license suspension will begin on the final day of the
current suspension. State in the Interest of T.B., 134 N.J. 382, 388
(1993).
(c)
License Forfeiture Exception. In determining
whether compelling circumstances exist to justify not revoking a defendant's
driving privileges under N.J.S.A. 2C:35-16(a), the court should consider
whether revocation will result in the defendant's loss of employment or extreme
hardship. State v. Bendix, 396 N.J. Super. 91, 95-96 (App. Div. 2007). Where a
defendant "has occasioned the loss of his employment through his
unauthorized and criminal use of his employer's vehicle," the court should
not find compelling circumstances to justify not revoking the defendant's
159
license.
State v. Carrero, 399 N.J. Super. 419, 425-26 (Law Div. 2007).
9. The
Drug Enforcement and Demand Reduction (DEDR) Penalty.
(a)
Policy. "As its name suggests,
the penalty is designed to reduce the demand for drugs by providing a source
for helping convicted defendants to reduce their demand for illegal
substances." State v. Monzon, 300 N.J. Super. 173, 177 (App. Div.
1997).
(b)
Treatment Program in Lieu of Payment and Wages. In reducing a penalty pursuant to N.J.S.A. 2C:35-15(e) by the
amount actually paid for participation in a treatment program, the court should
consider the amount withheld from a defendant's pay for work completed at the
treatment program. N.J.S.A. 2C:35-15(e). State v. Monzon, 300 N.J. Super. 173, 177-78
(App. Div. 1997).
(c)
Constitutionality. The drug enforcement
and demand reduction penalty does not constitute cruel and unusual punishment
under the Federal or State Constitution, and does not violate the equal
protection clauses, substantive or procedural due process rights, or the State
Constitution prohibition against amendment by reference. State v. Lagares, 127
N.J. 20, 36-37 (1992); State in the Interest of L.M., 229 N.J. Super. 88,
94-102 (App. Div. 1988), certif. denied, 114 N.J. 485 (1989).
(d)
Merger and Conspiracy. "Since
the principle of merger involves the avoidance of double penalties for the same
crime, Chapter 35 DEDR penalties may not be imposed on a conviction for both
conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2, and
for the actual possession under N.J.S.A. 2C:35-10." State in the Interest
of M.A., 227 N.J. Super. 393, 395 (Ch. Div. 1988).
(e)
Pretrial Intervention Program. The court
may impose a drug enforcement and demand reduction penalty as a condition of
entry into a pretrial intervention program. State v. Bulu, 234 N.J. Super. 331,
342, 346-48 (App. Div. 1989).
(f) The
DEDR Penalty Is Mandatory. The DEDR
penalty is mandatory and must be set in accordance with the degree of crime of
which the defendant was convicted. State v.
160
Malia,
287 N.J. Super. 198, 208 (App. Div. 1996); State v. Williams, 225 N.J. Super.
462, 464 (Law Div. 1988). The court may not revoke the penalty after
sentencing. State v. Gardner, 252 N.J. Super. 462, 465-66 (Law Div.
1991).
10. Plea
Agreements May Not Alter a Mandatory Penalty. Where a defendant pleads guilty to a second degree drug offense
with the understanding that the court will impose a sentence for a third degree
crime, the court may not honor the agreement in relation to the mandatory DEDR
penalty. State v. Williams, 225 N.J. Super. 462, 464 (Law Div. 1988). The court
must impose a
penalty
for a second
degree
crime. Ibid.
161
XIII. THE
GRAVES ACT AND ASSAULT WEAPONS
SENTENCING
N.J.S.A.
2C:43-6(c) and (d) (commonly called the Graves Act), and N.J.S.A. 2C:43-6(g)
and (h), require enhanced sentences for crimes committed with firearms
(N.J.S.A. 2C:43-6(c) and (d)) and with assault weapons or machine guns
(N.J.S.A. 2C:43-6(g) and (h)).1 See
N.J.S.A. 2C:39-1(f), (i) and (w) for the definitions of firearm, machine gun,
and assault firearm, respectively.
Both laws
require the court to impose: (1) a parole disqualifier, and (2) an extended
term with a parole disqualifier for certain repeat offenders. Unlike the
assault weapons statute, the Graves Act also has a parole disqualifier
exception for first-time offenders. Sections A and C, respectively, discuss
statutory provisions and case law on the Graves Act. Sections B and D,
respectively, discuss statutory provisions and case law on assault weapons
sentencing.
A. Graves Act
Sentencing: Statutory Provisions
1. Graves
Act Enumerated Offenses. The
Graves Act (N.J.S.A. 2C:43-6(c)) requires enhanced sentencing where the
defendant committed any of the following enumerated offenses under the
circumstances listed in either (a) or (b):
(a) The
defendant committed any of the following offenses:
· Possession of a
sawed-off shotgun or defaced firearm (N.J.S.A. 2C:39-3(b) or (d));
1
It is unclear
whether N.J.S.A. 2C:43-6(g) and (h), covering crimes committed with assault
weapons, may appropriately be called part of "the Graves Act."
Subsections (g) and (h) were enacted eleven years after the Graves Act
(N.J.S.A. 2C:43-6(c) and (d)), and while the subsections are similar to the
Graves Act, the two provisions differ in certain respects. No published New
Jersey decision that mentions N.J.S.A. 2C:43-6(g) or (h), refers to either
subsection as the Graves Act. Presumably, even if those sections are not part
of the Graves Act, a significant amount of case law on the Graves Act would
apply by analogy to assault weapons sentencing.
162
- · Possession of a
firearm with purpose to use it unlawfully against a person or property of
another (N.J.S.A. 2C:39-4(a));
- · Possession of a
firearm while committing certain drug-related offenses or bias
intimidation (N.J.S.A. 2C:39-4.1(a));
- · Possession of a
machine gun, handgun, rifle, shotgun, or assault firearm without the
required license, permit, or identification card, or possession of a
loaded rifle or shotgun (N.J.S.A. 2C:39-5(a), (b), (c) or (f));
- · Possession of a weapon
by a certain person prohibited from such possession (N.J.S.A. 2C:39- 7(a),
(b)(2) or (b)(3)); or
- · Manufacturing,
transporting and disposing a machine gun, sawed-off shotgun, defaced
firearm, or assault firearm (N.J.S.A. 2C:39-9(a), (b), (e) or (g));
OR
(b) The defendant committed any of the following offenses and used, or was in possession of, a firearm (defined at N.J.S.A. 2C:39-1(f)), while committing or attempting to commit the crime, including the immediate flight therefrom:
- · Murder (N.J.S.A.
2C:11-3);
- · Manslaughter (N.J.S.A.
2C:11-4);
- · Aggravated assault
(N.J.S.A. 2C:12-1(b));
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14- 3(a));
- · Robbery (N.J.S.A.
2C:15-1); 163
· Burglary (N.J.S.A.
2C:18-2); or
· Escape (N.J.S.A.
2C:29-5).
2. Graves
Act Parole Disqualifier. N.J.S.A.
2C:43-6(c) provides that if the defendant committed any of the enumerated
offenses (see section A(1) above), the court must impose a period of parole
ineligibility that is either one-half of the sentence imposed or forty-two
months, whichever is greater, or, in the case of a fourth degree crime,
eighteen months.
Note: Effective August 8, 2013, the Legislature amended N.J.S.A.
2C:43-6(c) to provide fixed mandatory minimum terms for the enumerated crimes
(listed in section A(1) above). Prior to this amendment, the statute required a
mandatory minimum term within a specified range.
3. Graves
Act Extended Term With Parole Disqualifier for Certain Repeat Offenders. N.J.S.A. 2C:43-6(c) provides that the court must impose an
extended term if the defendant committed or attempted to commit an enumerated
offense (see section A(1) above) while possessing a firearm; is at least
eighteen years old; and has a prior conviction for committing with a firearm
any of the following offenses set forth in N.J.S.A. 2C:44-3(d):
- · Murder (N.J.S.A.
2C:11-3);
- · Manslaughter (N.J.S.A.
2C:11-4);
- · Aggravated assault
(N.J.S.A. 2C:12-1(b));
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3(a));
- · Robbery (N.J.S.A.
2C:15-1);
- · Burglary (N.J.S.A.
2C:18-2);
- · Escape (N.J.S.A.
2C:29-5);
- · Possession of a
firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a); or
164
· Any offense in Title
2A (Administration of Civil and Criminal Justice).
N.J.S.A.
2C:43-6(c) instructs the court to impose the extended term in accordance with
N.J.S.A. 2C:43-7(c), which requires that the extended term include a parole
disqualifier at or between one-third and one-half the sentence imposed, or five
years, whichever is greater. If the sentence is life imprisonment, the parole
disqualifier must be twenty-five years, unless the sentence is for a violation
of N.J.S.A. 2C:35-3 (leader of a narcotics organization); then the parole
disqualifier must be thirty years. N.J.S.A. 2C:43-7(c).
4.
Hearing and Required Findings to Support a Graves Act Sentence. N.J.S.A. 2C:43-6(d) provides that the court shall not impose a
Graves Act enhanced sentence unless the prosecutor establishes, and the court
finds, by a preponderance of the evidence at a hearing, which may occur at the
time of sentencing, "that the weapon used or possessed was a firearm. In
making its finding, the court shall take judicial notice of any evidence,
testimony or information adduced at the trial, plea hearing, or other court
proceedings and shall also consider the presentence report and any other
relevant information."
(a) The
Sixth Amendment and the Graves Act Extended Terms:
Sixth Amendment
jurisprudence renders invalid the Graves Act requirement (N.J.S.A. 2C:43-6(d))
that the court find the facts, other than proof of a prior conviction, that
subjects a defendant to a Graves Act extended term. State v. Franklin, 184 N.J.
516, 533-34 (2005) (applying the holding in Apprendi v. New Jersey, 530 U.S.
466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000)). To impose a
Graves Act extended term after trial, the jury must have found that the
defendant used or possessed a firearm during the crime. State v. Franklin, 184
N.J. 516, 533-34 (2005). In the case of a guilty plea, the maximum sentence
authorized by statute is the maximum sentence supported by the defendant's
admissions. State v. Franklin, 184 N.J. 516, 537-38 (2005) (interpreting
Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct. 2531, 2541, 159 L. Ed.
2d 403, 403 (2004)). The defendant may also "consent to judicial
factfinding as to sentence enhancements." State v. Franklin, 184 N.J. 516,
538 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 309-11, 124 S. Ct.
2531, 2541, 159 L. Ed. 2d 403, 403 (2004)).
165
(b) The
Sixth Amendment and the Graves Act Parole Disqualifiers: In accordance with the decision in Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), that to
comply with the Sixth Amendment, the jury, not the court, must find a fact that
subjects a defendant to an extended term, the Sixth Amendment similarly
requires that a fact that increases the mandatory minimum term must be found by
the jury, not a judge. Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct.
2151, 2155, 186 L. Ed. 2d 314, 321 (2013).
Our Court
has yet to address the Alleyne decision in relation to the Graves Act parole
disqualifier, but it has found that a mandatory parole disqualifier based on
the court's finding that the defendant was involved in organized crime was
invalid under Alleyne. State v. Grate, 220 N.J. 317, 335 n.2 (2015) (refusing
to issue an advisory opinion on whether the Graves Act mandatory parole
disqualifier was also invalid).
Though no
United States Supreme Court or published New Jersey decision has so held,
presumably the Apprendi prior- conviction exception will apply to mandatory
minimum terms, just as it applies to extended terms. See Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455
(2000) (holding that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt").
5.
Certain Offenses Excluded From Graves Act Enhanced Sentencing. N.J.S.A. 2C:43-6(d)(2) provides that the court shall not impose a
Graves Act enhanced sentence for the following crimes:
- · Unlawful possession of
a handgun in which the propelling force is air or similar force (N.J.S.A.
2C:39-5(b)(2));
- · Unlawful possession of
a rifle or shotgun in which the propelling force is air or similar force
(N.J.S.A. 2C:39- 5(c)(2)); and
- · Possession of a rifle
or shotgun without a firearms purchaser identification card (N.J.S.A.
2C:39:5(c)(1)).
166
6.
Parole-Disqualifier Exception for First-Time Offenders.
N.J.S.A.
2C:43-6.2 provides that upon request of the State, or at the sentencing court's
request with the State's approval, the assignment judge shall place the
defendant on probation or reduce the parole ineligibility term to one year if
the interest of justice would not be served by imposition of a parole
disqualifier, and the defendant has no prior conviction for an enumerated
offense (listed in section A(1) above).
B. Assault
Weapons Sentencing: Statutory Provisions
1.
Assault Weapons Enumerated Offenses. N.J.S.A.
2C:43-6(g) requires enhanced sentencing if the defendant used or was in
possession of a machine gun (defined in N.J.S.A. 2C:39-1(i)) or assault firearm
(defined in N.J.S.A. 2C:39-1(w)) while committing, or attempting to commit, any
of the following enumerated offenses, including the immediate flight
therefrom:
- · Possession of a
firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a));
- · Murder (N.J.S.A.
2C:11-3);
- · Manslaughter (N.J.S.A.
2C:11-4);
- · Aggravated assault
(N.J.S.A. 2C:12-1(b));
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3(a));
- · Robbery (N.J.S.A.
2C:15-1);
- · Burglary (N.J.S.A.
2C:18-2);
- · Escape (N.J.S.A.
2C:29-5); or
- · Manufacture,
distribute or dispense a controlled dangerous substance (N.J.S.A.
2C:35-5).
167
2.
Assault Weapons Parole Disqualifier. If
the defendant committed an enumerated offense (see section B(1) above) while
possessing a machine gun or assault weapon, the court must impose a term of parole
ineligibility of (a) ten years for a first or second degree crime, (b) five
years for a third degree crime, or (c) eighteen months for a fourth degree
crime. N.J.S.A. 2C:43-6(g).
3.
Extended Term With Parole Disqualifier for Certain Assault Weapons Repeat
Offenders. N.J.S.A. 2C:43-6(g)
provides that the court must impose an extended term if the defendant committed
an enumerated offense (see section B(1) above) while possessing a machine gun
or assault weapon, is at least eighteen years old, and has a prior conviction
for committing with a firearm any of the following offenses set forth in
N.J.S.A. 2C:44-3(d):
- · Murder (N.J.S.A.
2C:11-3);
- · Manslaughter (N.J.S.A.
2C:11-4);
- · Aggravated assault
(N.J.S.A. 2C:12-1(b));
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3(a));
- · Robbery (N.J.S.A.
2C:15-1);
- · Burglary (N.J.S.A.
2C:18-2);
- · Escape (N.J.S.A.
2C:29-5);
- · Possession of a
firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a); or
- · Any offense in Title
2A (Administration of Civil and Criminal Justice).
N.J.S.A. 2C:43-6(g) instructs the court to impose the extended term in accordance with N.J.S.A. 2C:43-7(d), which requires that the extended term include a parole disqualifier as follows:
168
- · First and second
degree crimes: fifteen years, unless:
o The sentence is one of life imprisonment, then the parole disqualifier must be twenty-five years or thirty years if the defendant violated N.J.S.A. 2C:35-3 (leader of a narcotics trafficking network);
- · Third degree crime:
eight years; and
- · Fourth degree crime:
five years.
4.
Hearing and Findings Required to Support an Assault Weapons Sentence. N.J.S.A. 2C:43-6(h) requires the prosecutor to establish, and the
court to find, by a preponderance of the evidence at a hearing, which may occur
at the time of sentencing, "that the weapon used or possessed was a
machine gun or assault firearm. In making its finding, the court shall take
judicial notice of any evidence, testimony or information adduced at the trial,
plea hearing, or other court proceedings and shall also consider the
presentence report and any other relevant information."
(a) Note
on the Parole Disqualifier as Applied to Second, Third and Fourth Degree
Crimes: Because N.J.S.A. 2C:43-
6(g) effectively imposes a 100% period of parole ineligibility on second, third
and fourth degree offenses, the jury, not the court, must find beyond a reasonable
doubt that the weapon used was an assault firearm or machine gun and that the
defendant possessed it to use it against another. State v. Petrucci (II), 365
N.J. Super. 454, 462-63 (App. Div.), certif. denied, 179 N.J. 373 (2004).
(b) The
Sixth Amendment and Assault Weapons Extended Terms: The Sixth Amendment requires the jury, not the court, find a fact,
other than proof of a prior conviction, that subjects a defendant to a
mandatory extended term. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). Though no published New Jersey
decision applies this rule to the assault weapons sentencing statute (N.J.S.A.
2C:43-6(h)), the Court has declared unconstitutional under Apprendi the
parallel Graves Act extended term provision (N.J.S.A.
169
2C:43-6(d)).
State v. Franklin, 184 N.J. 516, 533-34 (2005).
(c) The
Sixth Amendment and Assault Weapons Parole Disqualifiers: In accordance with the decision in Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), that to
comply with the Sixth Amendment, the jury, not the court, must find a fact that
subjects a defendant to a mandatory extended term, the Sixth Amendment
similarly requires that a fact that requires a mandatory minimum term must be
found by the jury, not a judge. Alleyne v. United States, ___ U.S. ___, ___,
133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013). Though no United States
Supreme Court or published New Jersey decision has so held, presumably the Apprendi
prior- conviction exception will apply to mandatory minimum terms, just as it
applies to extended terms. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) (holding that "[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt").
Our Court
has yet to address the Alleyne decision in relation to the assault weapons
parole disqualifier, but it has found that a mandatory parole disqualifier
based on the court's finding that the defendant was involved in organized crime
was invalid under Alleyne. State v. Grate, 220 N.J. 317, 334-35 (2015). The
Grate Court declined to issue an advisory opinion on whether the Graves Act
mandatory parole disqualifier, which is similar to the assault weapons parole
disqualifier, was invalid under Alleyne. State v. Grate, 220 N.J. 317, 335 n.2
(2015).
C. Graves
Act Sentencing: Case Law
1. Policy. The focus of the Graves Act is deterrence, not
1. Policy. The focus of the Graves Act is deterrence, not
rehabilitation. State v. Haliski, 140
N.J. 1, 9 (1995).
2.
Proportionality and a Parole Disqualifier. The length of a parole ineligibility term under the Graves Act
"must ordinarily be consistent with the length of the base term" and
"the court's evaluation of the relevant aggravating and mitigating
factors." State v. Towey, 114 N.J. 69, 81 (1989). Since, however,
"the
170
weight of
the aggravating and mitigating factors is irrelevant to the imposition of a
minimum term in Graves Act cases, . . . there may be less correlation than in
non-Graves Act cases between the length of the base term and the severity of
the parole ineligibility term." Id. at 81-82. See also State v. Benjamin,
___ N.J. ___, ___ (2017) (explaining that "even if the trial court finds
that the mitigating factors of N.J.S.A. 2C:44- 1(a) outweigh the aggravating
factors listed in subsection (b) of that statute, the court must still impose
the minimum term of incarceration.").
3.
Merger. "[W]hen a Graves Act
crime merges with a non- Graves Act crime, the sentence must be at least equal
in length to the mandatory sentence required for the Graves Act crime. If the
sentencing guidelines for the non-Graves Act crime do not permit that long a
sentence, the Graves Act crime survives the merger." State v. Connell, 208
N.J. Super. 688, 696 (App. Div. 1986).
4.
Operability and Design of the Firearm. "The
Graves Act contemplates a 'firearm' not in terms of a device's present
operability, but in terms of its original design." State v. Gantt, 101
N.J. 573, 584 (1986). The weapon must have been designed to deliver a
potentially lethal projectile; it need not be operable as well. Id. at 585.
Inoperability is relevant only when substantial evidence tends to show that the
weapon has changed to such a degree that it has permanently lost the
characteristics of a real gun. Id. at 589. State v. Orlando, 269 N.J. Super.
116, 130-33 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994).
5.
Accomplice. An accomplice who had the
purpose to promote or facilitate the crime with the use of a firearm is guilty
of that crime even though he or she did not personally possess or use the
firearm. State v. White, 98 N.J. 122, 130 (1984). Even where the accomplice is
found guilty only of an unarmed offense, if he or she knew or had reason to
know before the crime was committed that his or her cohort would possess or use
a firearm during the crime or immediate flight therefrom, the Graves Act
applies to the accomplice. Id. at 131. Accomplice liability depends on proof of
a shared purpose. State v. Wooters, 228 N.J. Super. 171, 175, 178-79 n.1 (App.
Div. 1988).
6. The
Graves Act and the No Early Release Act (NERA). Where a defendant is subject to a NERA and a Graves Act parole
disqualifier, the NERA parole disqualifier will require a longer
171
mandatory
minimum term, and thus, will subsume the Graves Act parole disqualifier. See
State v. Garron, 177 N.J. 147, 163 (2003), cert. denied, 540 U.S. 1160, 124 S.
Ct. 1169, 157 L. Ed. 2d 1204 (2004). In this situation the court should state
in the judgment of conviction the crime or crimes subject to the NERA and the
Graves Act to avoid confusion in the future if the defendant commits an offense
that would subject him or her to the Graves Act repeat offender extended term.
State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000).
7.
Application for Transfer to a Drug Treatment Program. A defendant cannot seek relief under Rule 3:21-10(b)(1)
(application to enter drug treatment program), until the Graves Act mandatory
term has been served. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div.
1986).
8. Extended
Terms.
(a)
Notice and Hearing. "[N]otice and
hearing are required before a mandatory extended term may be imposed based on a
prior Graves Act conviction." State v. Martin, 110 N.J. 10, 14
(1988).
(b)
Burden of Proof. The burden is on the
State to prove to the sentencing judge that the defendant has a prior
conviction that qualifies him or her for a Graves Act extended term. State v.
Robinson, 253 N.J. Super. 346, 358 (App. Div.), certif. denied, 130 N.J. 6
(1992). Note that the Sixth Amendment is not violated by the court's finding the
existence of a prior conviction as a basis to impose a sentence enhancer. State
v. Franklin, 184 N.J. 516, 521 (2005); Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000).
(c)
Timing of Prior Conviction. To impose
a Graves Act extended term, the State must establish that the defendant had a
prior conviction for an enumerated offense with a firearm. State v. Hawks, 114
N.J. 359, 361, 365 (1989). Conviction for the first crime need not precede the
commission of the second crime. Ibid.
(d) Prior
Conviction Pending Appeal. The court
may sentence a defendant to a Graves Act extended term while the prior Graves
Act conviction is pending appeal, or before the time for such an appeal has
expired. State v. Haliski, 140 N.J. 1, 17-18 (1995). If the prior Graves
Act
172
conviction
is reversed on appeal, the extended term must be vacated upon the defendant's
motion, pursuant to Rule 3:21- 10(b)(6). State v. Haliski, 140 N.J. 1, 18-20
(1995).
(e)
Convictions in the Same Proceeding. It
is an open question whether an extended Graves Act sentence may be imposed
based upon convictions and sentences entered in the same proceeding. State v.
Rountree, 388 N.J. Super. 190, 207-09 (App. Div. 2006).
(f)
Defense Challenge to the State's Proof. The
defendant may challenge the State's proof as insufficient, but if the
defendant's challenge would invalidate a prior conviction, the defendant
"must proceed by an appropriate application for post-conviction relief. R.
3:22. In the absence of such an application, the sentencing court is entitled
to rely on the record of the prior conviction to satisfy itself that the prior
conviction constitutes a Graves Act offense." State v. Jefimowicz, 119
N.J. 152, 160-61 (1990).
(g)
Multiple Graves Act Extended Terms. When
sentencing more than one Graves Act offense, the judge must impose a Graves Act
extended term on each conviction. State v. Robinson, 217 N.J. 594, 597 (2014)
(citing State v. Connell, 208 N.J. Super. 688, 697 (App. Div. 1986)). An extended
Graves Act term is not subject to the limitation in N.J.S.A. 2C:44-5(a)(2),
which prohibits more than one extended term sentence, because a Graves Act
extended term is the "ordinary sentence" for the crime. State v.
Connell, 208 N.J. Super. 688, 691 (App. Div. 1986).
9.
Mandatory Terms, State Appeals and Double Jeopardy. The State may appeal a sentencing court's refusal to impose a
Graves Act mandatory extended term based on a finding that the proof did not
establish the requisite prior offenses. State v. Robinson, 253 N.J. Super. 346,
358-59 (App. Div.), certif. denied, 130 N.J. 6 (1992). On remand, the State may
present additional proofs of the prior offenses only if the sentencing court
first finds that to do so would not violate due process or double jeopardy. Id.
at 359. See Monge v. California, 524 U.S. 721, 734, 118 S. Ct. 2246, 2253, 141
L. Ed. 2d 615, 628 (1998) (double jeopardy clause does not preclude retrial on
a prior conviction allegation in a noncapital sentencing case).
173
10.
Remand and Original Jurisdiction. Where a
sentencing court illegally imposes a Graves Act period of parole ineligibility,
the appellate court should not impose a discretionary term of parole
ineligibility to correct the sentence, but rather, should remand for reconsideration
of the sentence. State v. Wooters, 228 N.J. Super. 171, 174 (App. Div. 1988).
However, if the reviewing court reverses a discretionary parole disqualifier
and finds that the court should have imposed a Graves Act mandatory parole
disqualifier, then the appellate court may amend the judgment of conviction to
reflect the mandatory minimum term under the Graves Act. State v. Copeman, 197
N.J. Super. 261, 265 (App. Div. 1984).
11.
Graves Act Parole Disqualifier Exception for First-Time Offenders (N.J.S.A.
2C:43-6.2).
(a)
Constitutionality. The Graves Act parole
disqualifier exception for first time offenders, N.J.S.A. 2C:43-6.2, which
allows the assignment judge to eliminate or decrease to one year the parole
disqualifier in the interest of justice, has withstood constitutional challenge
on separation-of-powers grounds. State v. Alvarez, 246 N.J. Super. 137, 145-47
(App. Div. 1991). The "interests of justice" standard avoids
arbitrary, unreasonable and capricious decision-making by the prosecutor and
poses no constitutional impediment to the legislative will. Ibid.
(b)
Arbitrariness Challenge by the Defense. A
defendant has the right to move before the assignment judge for a hearing to
determine whether the prosecutor arbitrarily or unconstitutionally
discriminated against him or her in determining whether the interests of
justice warranted consent or referral for leniency pursuant to N.J.S.A.
2C:43-6.2. State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif.
denied, 176 N.J. 278 (2003); State v. Alvarez, 246 N.J. Super. 137, 147-49
(App. Div. 1991); State v. Miller, 321 N.J. Super. 550, 555-56 (Law Div. 1999).
"[T]he prosecutor must provide written reasons for withholding consent to
a waiver in order to promote procedural fairness and to ensure meaningful
judicial review." State v. Benjamin, 442 N.J. Super. 258, 266 (App. Div.
2015), affirmed as modified, ___ N.J. ___ (2017). But the defendant is
"not entitled to discovery of a prosecutor's case-specific
memorializations and cumulative files when challenging the denial of a Graves
Act waiver . . . because there are sufficient procedural safeguards in
174
place for
meaningful judicial review . . . ." State v. Benjamin, ___ N.J. ___, ___
(2017) (slip op. at 30).
(c)
Defense Request for Referral. A
defendant may also request the sentencing judge refer the matter to the
assignment judge for leniency. State v. Alvarez, 246 N.J. Super. 137, 141 n.2
(App. Div. 1991).
(d)
Assignment Judge Discretion. "When
an application for a waiver under section 6.2 is made by motion of a
prosecutor, the assignment judge or his or her designee has the authority to
choose one of two sentences: he or she 'shall place the defendant on probation
pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory
minimum term of imprisonment during which the defendant will be ineligible for
parole.'" State v. Nance, ___ N.J. ___, ___ (2017) (slip op. at 22)
(quoting N.J.S.A. 2C:43-6.2). While the prosecutor may argue for a certain
sentence, "nothing in the statute suggests that the assignment judge or
designee must accept the prosecutor's recommendation." Id. at ___ (slip
op. at 22-23).
(e)
Presumption of Incarceration. N.J.S.A.
2C:43-6.2 does not exempt a defendant convicted of a first-degree or
second-degree Graves Act offense from the N.J.S.A. 2C:44- 1(d) presumption of
incarceration. State v. Nance, ___ N.J. ___, ___ (2017) (slip op. at 25).
(f)
Remand to Seek Leniency. Where a
defendant argues at sentencing only that the Graves Act does not apply, and
where that argument is rejected on appeal, the interests of justice may
nevertheless militate in favor of remanding to the trial court so that the
defendant can be afforded the opportunity to seek the prosecutor's consent and
move for leniency under N.J.S.A. 2C:43-6.2. State v. Mello, 297 N.J. Super.
452, 467-68 (App. Div. 1997).
12. Cruel
and Unusual Punishment. Ordinarily,
a Graves Act sentence will not constitute cruel and unusual punishment, even if
the defendant is a youthful offender, State v. Des Marets, 92 N.J. 62, 81-82
(1983), or a law enforcement officer who needs solitary or segregated
confinement, State v. Muessig, 198 N.J. Super. 197, 203-04 (App. Div.), certif.
denied, 101 N.J. 234 (1985).
175
D.
Assault Weapons Sentencing: Case Law
1. 100%
Parole Ineligibility. In effect, N.J.S.A.
2C:43-6(g) does not allow any possibility of parole for second, third and
fourth degree offenses because the mandatory parole ineligibility terms are
equal to the top of the ordinary sentencing ranges for crimes of those degrees
(the ordinary ranges are: second degree crimes--five to ten years; third degree
crimes--three to five years; and fourth degree crimes--a term not to exceed
eighteen months). State v. Petrucci (II), 365 N.J. Super. 454, 460 n.2, 462-63
(App. Div.), certif. denied, 179 N.J. 373 (2004).
176
XIV. DRUG OFFENDER SENTENCING
In
sentencing drug offenders, the court may impose a term of special probation,
which is intended to treat a defendant's substance abuse problem and is managed
by drug court personnel. If the court does not impose special probation, the
defendant must be sentenced in accordance with Title 2C. Sections A and B of
this chapter discuss special probation and drug court. Sections C through K
discuss enhanced sentencing provisions specific to drug offenders.
A.
Special Probation: Statutory Provisions
1.
Statutory Authority for Special Probation. N.J.S.A. 2C:35- 14(a) provides that on its own initiative, or at
the defendant's request, after considering all relevant information, the court
may sentence a drug or alcohol dependent offender, as defined in N.J.S.A. 2C:35-2,
to a five-year period of special probation if the offender is not eligible for
regular probation (N.J.S.A. 2C:45-1) because the conviction carries a
presumption of imprisonment or requires a period of parole ineligibility, and
the court makes the following findings on the record:
(1) The
defendant underwent a professional diagnostic assessment (N.J.S.A. 2C:35-14.1)
to determine whether and to what extent the defendant is drug or alcohol
dependent (N.J.S.A. 2C:35-2) and whether the defendant would benefit from
treatment; and
(2) The
defendant is dependent upon drugs or alcohol within the meaning of N.J.S.A.
2C:35-2, and was drug or alcohol dependent at the time of the offense;
and
(3) The
defendant committed the offense while under the influence of drugs or alcohol,
or to acquire property or money to support drug or alcohol dependency;
and
(4) The
defendant will benefit from substance abuse treatment and monitoring, thereby
reducing recidivism; and
(5) The
defendant did not possess a firearm at the time of the offense or at the time
of any pending criminal charge; and
177
(6) The
defendant has not been convicted on two or more separate occasions of: (i)
first or second degree crimes other than those listed in the following
subsection (7); or (ii) a first or second degree crime and a third degree
crime, other than N.J.S.A. 2C:35-10 drug possession crimes; and
(7) The
defendant does not have pending charges or a prior conviction or delinquency
adjudication for murder, aggravated manslaughter, manslaughter, kidnapping,
aggravated assault, aggravated sexual assault, or sexual assault; and
(8) A
suitable treatment facility licensed and approved by the Division of Addiction
Services is able and has agreed to provide the defendant appropriate treatment;
and
(9) A
sentence of special probation will not pose a danger to the community.
Note: In 2012 the Legislature amended N.J.S.A. 2C:35-14(a)(7) to remove
robbery from the list of pending charges that made a defendant ineligible for
special probation. L. 2012, c. 23.
2.
"Drug or Alcohol Dependent Persons" Defined. Pursuant to N.J.S.A. 2C:35-2, a drug or alcohol dependent person
is a person who "has been in a state of psychic or physical dependence, or
both, arising from the use of" drugs or alcohol "on a continuous or
repetitive basis. . . . [D]ependence is characterized by behavioral and other
responses, including but not limited to a strong compulsion to take the
substance on a recurring basis in order to experience its psychic effects, or
to avoid the discomfort of its absence."
3.
Diagnostic Assessment Requirement. N.J.S.A.
2C:35-14.1(a) provides that the court shall require a defendant to submit to a
professional diagnostic assessment if the following circumstances exist:
(1) The
court has a reasonable basis to believe that the defendant may be drug
dependent, as defined in N.J.S.A. 2C:35-2; and
(2) The
crime the defendant committed is:
178
(a)
Subject to a presumption of imprisonment pursuant to N.J.S.A. 2C:44-1(d);
or
(b) A
third degree crime and the defendant has previously been convicted of a crime
subject to the presumption of imprisonment or that resulted in a term of
imprisonment; and
(3) The
defendant is eligible for consideration of special probation pursuant to
N.J.S.A. 2C:35-14.
Exception
to the Diagnostic Assessment Requirement. The court need not order diagnostic testing if "it is clearly
convinced that such assessment will not serve any useful purpose. If the court
does not order a diagnostic assessment, the court shall place on the record the
reasons for its decision." N.J.S.A. 2C:35-14.1(c).
4.
Reasonable Basis to Believe a Person Is Drug or Alcohol Dependent. Pursuant to N.J.S.A. 2C:35-14.1(b), any of the following
circumstances constitute a reasonable basis to believe that a person may be
drug or alcohol dependent:
(1) The offense
involved a controlled dangerous substance;
(2) The
defendant has previously been convicted of a drug offense, or "was
admitted to pretrial intervention or supervisory treatment, or received a
conditional discharge for a charge involving a controlled dangerous
substance";
(3) The
defendant has a pending controlled dangerous substance charge in this State or
another jurisdiction;
(4) The
defendant received drug treatment or counseling in the past;
(5)
"[T]he defendant appears to have been under the influence of a controlled
dangerous substance during the commission of the present offense, or it
reasonably appears that the present offense may have been committed to acquire
property or monies to purchase" drugs for the defendant;
(6)
"[T]he defendant admits to the unlawful use of a controlled dangerous
substance within the year preceding the arrest for the present
offense";
179
(7)
"[T]he defendant has had a positive drug test within the last 12
months"; or
(8)
"[T]here is information, other than the circumstances enumerated in
paragraphs (1) through (7) of this subsection, which indicates that the
defendant may be a drug dependent person or would otherwise benefit by
undergoing a professional diagnostic assessment within the meaning of"
N.J.S.A. 2C:35-14(a)(1).
5.
Special Probation Ineligibility. Pursuant
to N.J.S.A. 2C:35-14(b), a defendant is not eligible for special probation if
the defendant is convicted of or adjudicated delinquent for:
(1) A first
degree crime; or
(2) Any
of the following first or second degree offenses, which are subject to the No
Early Release Act (N.J.S.A. 2C:43-7.2) (NERA), "other than a crime of the
second degree involving N.J.S.A. 2C:15-1 (robbery) or N.J.S.A. 2C:18-2
(burglary)":
- · Murder (N.J.S.A.
2C:11-3);
- · Aggravated
manslaughter or manslaughter (N.J.S.A.
2C:11-4);
- · Vehicular homicide
(N.J.S.A. 2C:11-5);
- · Aggravated assault
(N.J.S.A. 2C:12-1(b));
- · Disarming a law
enforcement officer (N.J.S.A. 2C:12- 11(b));
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Sexual assault
(N.J.S.A. 2C:14-2(b) and (c)(1));
- · Robbery (N.J.S.A.
2C:15-1);
- · Carjacking (N.J.S.A.
2C:15-2);
- · Aggravated arson
(N.J.S.A. 2C:17-1(a)(1)); 180
- · Burglary (N.J.S.A.
2C:18-2);
- · Extortion (N.J.S.A.
2C:20-5(a));
- · Booby traps in
manufacturing or distributing a controlled dangerous substance (N.J.S.A.
2C:35- 4.1(b));
- · Drug induced deaths
(N.J.S.A. 2C:35-9);
- · Terrorism (N.J.S.A.
2C:38-2);
- · Producing or
possessing chemical, biological, nuclear, or radiological weapons
(N.J.S.A. 2C:38-3);
- · Racketeering in the
first degree (N.J.S.A. 2C:41-2);
- · Firearms trafficking
(N.J.S.A. 2C:39-9(i)); and
- · Child pornography
(N.J.S.A. 2C:24-4(b)(3)).
(3) A crime, except drug distribution within 1000 feet of school property (N.J.S.A. 2C:35-7), "for which a mandatory minimum period of incarceration is prescribed under" Chapter 35 of Title 2C "or any other law"; or
(4) "[A]n offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property."
Note: In 2012 the Legislature removed second degree burglary (N.J.S.A. 2C:18-2) and robbery (N.J.S.A. 2C:15-1) from the list of NERA offenses that rendered a defendant ineligible for special probation. N.J.S.A. 2C:35-14(c), deleted by, L. 2012, c. 23. It also eliminated the prosecutor’s ability to object to imposition of special probation. Ibid.
6.
Presumption of Special Probation for Certain Drug Offenders. N.J.S.A. 2C:35-14.2(b) instructs that the court shall sentence a
defendant to special probation, regardless of whether the defendant requests it
or consents to it, if diagnostic testing concludes that the defendant is a drug
dependent person, as that term is defined in N.J.S.A. 2C:35-2, and the
court
181
concludes
that the defendant is a person in need of treatment, as defined in N.J.S.A.
2C:35-14.2(f), unless:
(1)
"[T]he court finds that a sentence of imprisonment must be imposed
consistent with the provisions of chapters 43 and 44 of Title 2C";
or
(2) The court is
clearly convinced that:
(a) The
treatment, monitoring and supervision services afforded by regular probation
(N.J.S.A. 2C:45-1) adequately address the defendant's clinical needs; and
(b)
"[T]he defendant's treatment needs would not be better addressed by
sentencing the defendant to special probation pursuant to N.J.S.A.
2C:35-14"; and
(c)
"[N]o danger to the community would result from placing the person on
regular probation"; and
(d) A
sentence of regular probation would be consistent with the provisions of
chapters 43 and 44 of Title 2C.
7.
"Person in Need of Treatment" Defined. N.J.S.A. 2C:35- 14.2(f) provides that a "person in need of
treatment" means a defendant who:
(1) Is a
drug dependent person as defined in N.J.S.A. 2C:35-2; and
(2) Has been
convicted of:
(a) A
crime subject to a presumption of imprisonment, pursuant to N.J.S.A.
2C:44-1(d); or
(b) A
third degree crime "if the person has previously been convicted of a crime
subject to a presumption of imprisonment or a crime that resulted in the
imposition of a State prison term"; and
(3)
"[I]s eligible to be considered for a sentence to special probation,"
pursuant to N.J.S.A. 2C:35-14.
182
Appeal by
the State. If the court imposes a
sentence of regular probation (N.J.S.A. 2C:45-1) instead of special probation
under N.J.S.A. 2C:35-14.2, the sentence shall not be final for ten days to
allow the prosecutor time to file an appeal. N.J.S.A. 2C:35-14.2(d).
8.
Presumption of Inpatient Treatment for Certain Defendants.
Unless
the court suspends inpatient treatment and imposes outpatient treatment
pursuant to N.J.S.A. 2C:35-14(j) (discussed below), N.J.S.A. 2C:35-14(d)
requires the court to order the defendant to treatment at a residential
facility if the defendant: (i) is convicted of or adjudicated delinquent for a
second degree crime or for drug distribution within 1000 feet of school
property (N.J.S.A. 2C:35-7); or (ii) was previously convicted of or adjudicated
delinquent for manufacturing, distributing or dispensing drugs (N.J.S.A.
2C:35-5). N.J.S.A. 2C:35-14(d). If the facility cannot house the defendant
immediately, then the defendant shall be incarcerated until he or she can be
transferred. Ibid.
(a)
Duration of Residential Treatment. The
defendant must serve a minimum of six months at the treatment facility.
N.J.S.A. 2C:35-14(d). The term shall end upon successful completion of the
treatment program, and shall not exceed five years. Ibid. "Upon successful
completion of the required residential treatment program, the person shall
complete the period of special probation . . . with credit for time served for
any imprisonment served as a condition of probation and credit for each day
during which the person satisfactorily complied with the terms and conditions
of special probation while committed pursuant to this section to a residential
treatment facility." Ibid.
(b)
Reporting Requirements. N.J.S.A.
2C:35-14(e) provides that the probation department, or other appropriate agency
designated by the court, shall periodically provide reports to the court on the
defendant's progress and shall immediately notify the court of a refusal to
submit to a drug or alcohol test. Ibid. The treatment facility must
"promptly report" to the probation department or designated agency
all "significant failures" by the defendant and must immediately
notify the prosecutor and the court of any action that would constitute an
escape. Ibid.
9.
Outpatient Treatment as a Condition of Suspended Inpatient Treatment. N.J.S.A. 2C:35-14(j) provides that if the defendant
183
meets the
criteria for inpatient treatment set forth in N.J.S.A. 2C:35-14(d), "the
court may temporarily suspend imposition of all or any portion of the term of
commitment . . . and may instead order the person to enter a nonresidential
treatment program, provided that the court finds on the record
that":
(1) The
diagnostic assessment recommends that "the proposed course of
nonresidential treatment services is clinically appropriate and adequate to
address the person's treatment needs"; and
(2) The
defendant's participation in outpatient treatment will not danger the
community; and
(3)
" [A] suitable treatment provider is able and has agreed to provide
clinically appropriate nonresidential treatment services."
(a)
Special Conditions of Outpatient Treatment In Lieu of Inpatient Treatment. A defendant sentenced to nonresidential treatment in lieu of
residential treatment pursuant to N.J.S.A. 2C:35-14(j) must undergo urine
testing at least once a week. N.J.S.A. 2C:35-14(k)(1). Additionally, "the
court shall impose appropriate curfews or other restrictions on the person's
movements, and may order the person to wear electronic monitoring devices to
enforce such curfews or other restrictions." Ibid.
(b)
Appeal by the State. If the court imposes
nonresidential treatment over the prosecutor's objection, the sentence shall
not become final for ten days to permit the State to file an appeal. N.J.S.A.
2C:35-14(j).
(c)
Permanent Suspension of Inpatient Treatment Based on Defendant's Progress. If the defendant successfully progresses in outpatient treatment
for six months and there is a substantial likelihood that he or she will
successfully complete the program, the court may permanently suspend
residential treatment, in which case the N.J.S.A. 2C:35-14(k) special
monitoring provisions will no longer apply. N.J.S.A. 2C:35-14(j).
10.
Mandatory Conditions of Special Probation. As conditions of special probation the defendant must:
184
- · "[E]nter a
residential treatment program at a facility licensed and approved by the
Division of Addiction Services" or participate in a nonresidential
treatment program offered by a licensed and approved treatment provider,
N.J.S.A. 2C:35-14(a); and
- · Comply with the
treatment program rules and with the requirements of treatment, N.J.S.A.
2C:35-14(a); and
- · Submit to periodic
urine testing for drugs or alcohol, N.J.S.A. 2C:35-14(a); and
- · Comply with any other
reasonable terms and conditions that the court may impose pursuant to
N.J.S.A. 2C:45-1 (the regular probation statute), N.J.S.A. 2C:35-14(a);
and
- · Contribute to the cost
of treatment, N.J.S.A. 2C:35- 14(h); and
- · Pay any applicable
fine, penalty, fee and restitution award, N.J.S.A. 2C:35-14(i).
11. Modifications of Special Probation. At any time during the special probation term the court may change a defendant's treatment to provide inpatient or outpatient services if the modification "is clinically appropriate and necessary to address the person's present treatment needs." N.J.S.A. 2C:35-14(j).
12. Early Discharge From Special Probation. N.J.S.A. 2C:35- 14(l) provides that if the defendant "has made exemplary progress in the course of treatment, the court may, upon recommendation of the person's supervising probation officer or on the court's own motion, and upon notice to the prosecutor, grant early discharge from a term of special probation provided that the person: (1) has satisfactorily completed the treatment program ordered by the court; (2) has served at least two years of special probation; (3) did not commit a substantial violation of any term or condition of special probation, including but not limited to a positive urine test, within the preceding 12 months; and (4) is not likely to relapse or commit an offense if probation supervision and related services are discontinued."
13. Refusal to Give a Urine Sample. If the defendant refuses to undergo urine testing for drug or alcohol usage the court
185
shall
permanently revoke special probation unless the court imposes a brief jail term
followed by continued special probation, pursuant to N.J.S.A. 2C:35-14(g).
N.J.S.A. 2C:35- 14(f)(6).
14.
Failure to Complete or Comply With a Treatment Program.
"Failure
to complete successfully the required treatment program shall constitute a
violation of the person's special probation." N.J.S.A.
2C:35-14(f)(7).
15.
Escape From Inpatient Treatment. If the
defendant commits an act that would constitute an escape from a residential
treatment facility "the court shall forthwith permanently revoke the
person's special probation." N.J.S.A. 2C:35-14(f)(6).
16.
Violation of Special Probation. In the
event the defendant violates a term of special probation, a probation officer
or prosecutor may bring an action to revoke special probation, or the court may
initiate the action on its own. N.J.S.A. 2C:35- 14(f)(7). In deciding whether
to revoke special probation the court "shall consider the nature and
seriousness of the present infraction and any past infractions in relation to
the person's overall progress in the course of treatment, and shall also
consider the recommendations of the treatment provider," giving
"added weight" to the provider's opinion that the defendant is not
amenable to treatment, is unlikely to successfully complete treatment, or
should be resentenced to punishment other than special probation. N.J.S.A.
2C:35-14(f)(3).
(a) First
Violation. The court may revoke
special probation upon a first violation of any term. N.J.S.A.
2C:35-14(f)(1).
(b)
Subsequent Violation. The court shall
revoke special probation upon a second or subsequent violation unless the court
(1) imposes a brief term of incarceration, pursuant to N.J.S.A. 2C:35-14(g), or
(2) "the court finds on the record that there is a substantial likelihood
that the person will successfully complete the treatment program if permitted
to continue . . . and the court is clearly convinced, considering the nature
and seriousness of the violations, that no danger to the community will
result." N.J.S.A. 2C:35-14(f)(2). The prosecutor may appeal a decision to
allow the defendant to continue special probation. Ibid.
186
(c) Brief
Incarceration in Lieu of Revocation. When
the defendant is subject to the presumption of revocation on a second or
subsequent violation (N.J.S.A. 2C:35-14(f)(2)), "or when the person
refuses to undergo drug or alcohol testing" (N.J.S.A. 2C:35-14(f)(6)),
"the court may, in lieu of permanently revoking the person's special
probation, impose a term of incarceration for a period of not less than 30 days
nor more than six months," followed by continued special
probation. N.J.S.A. 2C:35-14(g). "[T]he court shall consider the recommendations
of the treatment provider with respect to the likelihood that such confinement
would serve to motivate the person to make satisfactory progress in treatment
once special probation is reinstated." Ibid. The court may impose a brief
term of imprisonment in lieu of revocation only once, "unless the court is
clearly convinced that there are compelling and extraordinary reasons to
justify reimposing this disposition." The prosecutor may appeal the
decision to impose a subsequent term of imprisonment in lieu of revocation.
N.J.S.A. 2C:35-14(g).
(d)
Additional Terms of Special Probation In Lieu of Revocation. In the event the court continues special probation after a
violation, the court "shall order the person to comply with such
additional terms and conditions, including but not limited to more frequent
drug or alcohol testing, as are necessary to deter and promptly detect any
further violation." N.J.S.A. 2C:35-14(f)(5).
17.
Resentencing on the Original Offense After Revocation of Special Probation. If the court revokes special probation, the court shall
"conduct a de novo review of any aggravating and mitigating factors
present at the time of both original sentencing and resentencing," and
"impose any sentence that might have been imposed, or that would have been
required to be imposed, originally for the offense." N.J.S.A.
2C:35-14(f)(4). In the event the court imposes incarceration, the defendant
shall receive credit for time served in custody or in a residential treatment
facility. N.J.S.A. 2C:35-14(f)(4). A defendant who is sentenced to imprisonment
for failure to comply with the terms of special probation shall be ineligible
for transfer to the Intensive Supervision Program (N.J.S.A. 2C:43- 11).
N.J.S.A. 2C:35-14(f)(7).
187
B.
Special Probation and Drug Court: Case Law
1.
Purpose of Special Probation. "Special
probation is designed to divert otherwise prison-bound offenders into an
intensive and highly specialized form of probation designed to 'address in a
new and innovative way the problem of drug- dependent offenders caught in a
never-ending cycle of involvement in the criminal justice system.'" State
v. Bishop, 429 N.J. Super. 533, 540 (App. Div.) (quoting State v. Meyer, 192
N.J. 421, 434-35 (2007)), aff'd o.b., 223 N.J. 290 (2015).
2. Drug
Court Described. Drug courts are
"a highly specialized team process that function within the existing
Superior Court structure to address non-violent drug-related cases."
Admin. Office of the Courts, Manual for Operation of Adult Drug Courts In New
Jersey, Directive #2-02, at 3 (July 2002) (Drug Court Manual),
http://www.judiciary.state.nj.us/ directive/criminal/dir_02_02.pdf. The team
comprises drug court judges, prosecutors, defense attorneys and drug treatment
professionals who closely monitor drug-dependent offenders sentenced to special
probation or to regular probation with mandatory drug treatment. Ibid.
Drug
courts are not creatures of statute and are not mentioned in Title 2C. State v.
Meyer, 192 N.J. 421, 434-35 (2007).
" Although Drug Courts are involved in the implementation of the 'special probation' disposition contained in N.J.S.A. 2C:35-14, they are primarily the creation of our Supreme Court under the Court's 'ultimate constitutional authority to administer our court system, including the drug court program,' and are governed by the Drug Court Manual." State v. Stalter, 440 N.J. Super. 548, 554 (App. Div.) (quoting State v. Meyer, 192 N.J. 421, 424 (2007)), certif. denied, 223 N.J. 355 (2015).
" Although Drug Courts are involved in the implementation of the 'special probation' disposition contained in N.J.S.A. 2C:35-14, they are primarily the creation of our Supreme Court under the Court's 'ultimate constitutional authority to administer our court system, including the drug court program,' and are governed by the Drug Court Manual." State v. Stalter, 440 N.J. Super. 548, 554 (App. Div.) (quoting State v. Meyer, 192 N.J. 421, 424 (2007)), certif. denied, 223 N.J. 355 (2015).
"What
distinguishes Drug Courts from other courts is the 'oversight and personal
involvement of the drug court judge in the treatment process.' A team approach
is a distinctive feature of Drug Court. The judge leads court staff, probation
officers, treatment counselors, substance abuse evaluators, and the prosecutor
and defense attorney to monitor a participant's recovery." State v. Meyer,
192 N.J. 421, 428 (2007) (quoting Drug Court Manual at 3).
3. Drug
Court Tracks. The Drug Court Manual
provides for two tracks.
188
(a) Track
One. The first track encompasses
defendants who are subject to a presumption of imprisonment and are sentenced
to special probation. State v. Stalter, 440 N.J. Super. 548, 554 (App. Div.),
certif. denied, 223 N.J. 355 (2015); Drug Court Manual at 16.
(b) Track
Two. The second track covers
drug-dependent nonviolent offenders who do not qualify for special probation
but would likely benefit from participation in drug court. Drug Court Manual at
16. Offenders within the second track are sentenced to regular probation with
the condition that they participate in drug treatment. Id. at 16-17.
Note: The Drug Court Manual has not been amended to reflect the L. 2012,
c. 23, changes to N.J.S.A. 2C:35- 14(b). State v. Maurer, 438 N.J. Super. 402,
414 (App. Div. 2014). Those changes removed from the list of offenses that
rendered a defendant ineligible for special probation the crimes of second degree
burglary (N.J.S.A. 2C:18-2) and robbery (N.J.S.A. 2C:15-1). L. 2012, c.
23.
4. Drug
Dependency at Sentencing Not Required. To
be eligible for admission to drug court, a defendant need not be dependent on
drugs at the time of sentencing. State v. Clarke, 203 N.J. 166, 181
(2010).
5. Drug
Court Statute and Manual, De Novo Review. "[A] trial court's application of the Drug Court Statute and
Manual . . . involves a question of law," and thus is subject to de novo
review. State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014).
6. Merged
Offenses and Drug Court Eligibility. An
offense that precludes a sentence of special probation, pursuant to N.J.S.A.
2C:35-14(b), survives merger and renders a defendant ineligible for special
probation. State v. Ancrum, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op.
at 18-19) (reversing a sentence of special probation because the defendant
committed an aggravated assault). The merged offense is not extinguished for
purposes of determining special-probation eligibility. Ibid.
7.
Violation of Drug Court and Jail Credits. Pursuant to N.J.S.A. 2C:35-14(f)(4), a defendant who violated a
term of special probation is entitled to receive jail credit against the
violation of special probation sentence for the time the
189
defendant
spent in compliance with the residential treatment program. State v. Stalter,
440 N.J. Super. 548, 554 (App. Div.), certif. denied, 223 N.J. 355 (2015). The
same is not true for a defendant who violated a term of regulation probation
under Track Two of Drug Court because the treatment that a defendant receives
under Track Two is not custodial for purposes of jail credits. Ibid.
8.
Resentencing the Original Charge Following Revocation of Special
Probation.
(a)
Mandatory Terms Applicable to Original Charge. In the event the court permanently revokes special probation,
"mandatory periods of parole ineligibility and mandatory extended term
provisions that existed at the time of original sentencing survive during the
term of special probation and remain applicable at the time of
resentencing" on the parole violation. State v. Bishop, 429 N.J. Super.
533, 536 (App. Div.), aff'd o.b., 223 N.J. 290 (2015).
(b) De
Novo Review of Aggravating and Mitigating Factors.
Pursuant
to N.J.S.A. 2C:35-14(f), in resentencing after a violation of special
probation, the court conducts a de novo review of the aggravating and
mitigating factors, which is different from the Baylass standard applicable to
violations of regular probation. State v. Bishop, 429 N.J. Super. 533, 546
(App. Div.), aff'd o.b., 223 N.J. 290 (2015). See the chapter on probation for
a discussion of the Baylass standard.
C. Fines
Specific to Drug Offenses: Statutory Provisions
The
following statutes provide specific fines for certain drug offenses. The fines
apply to all drug offender sentences, including special probation. N.J.S.A.
2C:35-14(i).
1. Leader
of Narcotics Trafficking Network. N.J.S.A.
2C:35-3 provides that the court may "impose a fine not to exceed $750,000
or five times the street value of the controlled dangerous substance,
controlled substance analog, gamma hydroxybutyrate or flunitrazepam involved,
whichever is greater."
190
2.
Maintaining or Operating a Drug Production Facility.
N.J.S.A.
2C:35-4 allows "a fine not to exceed $750,000 or five times the street
value of all controlled dangerous substances, controlled substance analogs,
gamma hydroxybutyrate or flunitrazepam at any time manufactured or stored at
such premises, place or facility, whichever is greater."
3.
Manufacturing and Distributing a Controlled Dangerous Substance. N.J.S.A. 2C:35-5(b) authorizes a fine up to $300,000 or $500,000,
depending on the offense, for first degree drug manufacturing and distribution;
$25,000 or $75,000 for a third degree crime (depending on the offense); and
$25,000 for certain fourth degree crimes.
4.
Manufacturing and Dispensing Gamma Hydroxybutyrate.
N.J.S.A.
2C:35-5.2(b) authorizes a fine up to $150,000 for manufacturing and dispensing
gamma hydroxybutyrate.
5.
Manufacturing and Dispensing Flunitrazepam. N.J.S.A. 2C:35-5.3(b) and (c) allows a fine not to exceed $250,000
for first degree manufacturing and dispensing flunitrazepam, and $150,000 for a
second degree offense.
6.
Employing a Juvenile in a Drug Distribution Scheme.
N.J.S.A.
2C:35-6 allows "a fine not to exceed $500,000 or five times the street
value of the controlled dangerous substance or controlled substance analog
involved, whichever is greater," for employing a juvenile in a drug distribution
scheme.
7.
Manufacturing, or Dispensing Drugs on or Near School Property. N.J.S.A. 2C:35-7(a) authorizes a fine not to exceed $150,000 for
manufacturing and distributing drugs on or near school property.
8. Drug
Distribution to a Minor or a Pregnant Female.
N.J.S.A.
2C:35-8 requires the court to impose, upon application of the prosecutor,
"twice the term of imprisonment, fine and penalty, including twice the
term of parole ineligibility, if any." If the defendant is convicted of
more than one offense, the court must impose one enhanced sentence on the most
serious offense. Ibid. The prosecutor must establish the basis for the enhanced
sentence by a preponderance of the evidence, and the court must hold a hearing
on the matter. Ibid.
191
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject
to waiver under N.J.S.A. 2C:35-12. See section J of this chapter for discussion
on the waiver provisions.
9.
Possession of a Controlled Dangerous Substance or Analog.
N.J.S.A.
2C:35-10(a)(1) to (3) authorize a fine not to exceed $35,000 for third degree
drug possession, and $15,000, or $25,000 for a fourth degree crime, depending
on the circumstances.
10.
Possession of Gamma Hydroxybutyrate. N.J.S.A.
2C:35- 10.2(b) authorizes a fine up to $100,000 for possession of gamma
hydroxybutyrate.
11.
Possession of Flunitrazepam. N.J.S.A.
2C:35-10.3(b) allows a fine up to $100,000 for possession of
flunitrazepam.
12.
Distribution of a Prescription Legend Drug. N.J.S.A. 2C:35-10.5(a)(3) and (4) authorize a fine of up to
$200,000 or $300,000, depending on the circumstances, for distribution of a
prescription legend drug.
13.
Possession or Distribution of an Imitation Controlled Dangerous Substance. N.J.S.A. 2C:35-11(d) authorizes a fine not to exceed $200,000 for
possession or distribution of an imitation drug.
14.
Obtaining a Controlled Dangerous Substance by Fraud.
N.J.S.A.
2C:35-13 allows a fine up to $50,000 for fraudulently obtaining a drug.
D.
Penalties, Fees and Assessments Specific to Drug Offenses: Statutory
Provisions
The
following penalties, fees and assessments apply to all drug offender sentences,
including special probation. N.J.S.A. 2C:35-14(i).
1. Drug
Offender Restraining Orders. N.J.S.A.
2C:35-5.7(h) provides: " When a person is convicted of or adjudicated
delinquent for any criminal offense, the court, upon application of a law
enforcement officer or prosecuting attorney pursuant to N.J.S.A. 2C:35-5.9
[certification of offense location] and except as provided in subsection e. of
this section, shall, by
192
separate
order or within the judgment of conviction, issue an order prohibiting the
person from entering" the place where the offense occurred.
(a)
Exception. N.J.S.A. 2C:35-5.7(e)
provides: "The court may forego issuing a restraining order . . . only if
the defendant establishes by clear and convincing evidence that":
(1)
"the defendant lawfully resides at or has legitimate business on or near
the place, or otherwise legitimately needs to enter the place. In such an
event, the court shall not issue" a restraining order "unless the
court is clearly convinced that the need to bar the person from the place in
order to protect the public safety and the rights, safety and health of the
residents and persons working in the place outweighs the person's interest in
returning to the place." The court may also impose an order permitting
entry with conditions; or
(2)
imposition of a restraining order "would cause undue hardship to innocent
persons and would constitute a serious injustice which overrides the need to
protect the rights, safety and health of persons residing in or having business
in the place."
(b)
Appeal by the State. If the court denies a
request to impose a restraining order, the sentence shall not be final for ten
days to allow the State time to file an appeal. N.J.S.A. 2C:35-5.7(k).
2. Drug
Enforcement and Demand Reduction Penalty for Certain Offenses. N.J.S.A. 2C:35-5.11 provides: "Any person who possesses,
distributes, dispenses or has under his control with intent to distribute or
dispense 3,4-methylenedioxymeth- amphetamine, 3,4-methylenedioxyamphetamine,
gammabutyrolactone, gamma hydroxybutyrate or flunitrazepam, or a controlled
substance analog of any of these substances, shall, . . . be subject to a drug
enforcement and demand reduction penalty of twice the amount otherwise
applicable to the offense."
3. Drug
Distribution to a Minor or a Pregnant Female.
N.J.S.A.
2C:35-8 requires the court to impose, upon application of the prosecutor,
"twice the term of imprisonment, fine and penalty, including twice the
term of parole ineligibility, if
193
any,
authorized or required to be imposed by" N.J.S.A. 2C:35- 5(b) (drug
distribution) or N.J.S.A. 2C:35-7 (distribution within a school zone) "or
any other provision of this title." If the defendant is convicted of more
than one offense, the court must impose one enhanced sentence on the most
serious offense. Ibid. The prosecutor must establish the basis for the enhanced
sentence by a preponderance of the evidence, and the court must hold a hearing
on the matter. Ibid.
Note: The enhanced sentencing provisions of N.J.S.A. 2C:35-8 are subject
to waiver under N.J.S.A. 2C:35-12. See section J of this chapter for a
discussion of the waiver provisions.
4.
Possession of a Controlled Dangerous Substance or Analog.
N.J.S.A.
2C:35-10(a) requires the defendant to "perform not less than 100 hours of
community service" if the court does not impose a prison term and the
defendant committed the crime while inside a school bus or within 1000 feet of
school property.
5. Drug
Enforcement and Demand Reduction Penalty. N.J.S.A. 2C:35-15(a)(1) requires the court to impose the following
drug enforcement and demand reduction (DEDR) penalties on anyone convicted of a
Chapter 35 or 36 drug offense:
- · $3000 for a first
degree crime;
- · $2000 for a second
degree crime;
- · $1000 for a third
degree crime;
- · $750 for a fourth
degree crime; and
- · $500 for a disorderly
persons or petty disorderly persons offense.
(a) Multiple Offenses. N.J.S.A. 2C:35-15(a)(2)(a) and (b) provide that the court may, in its discretion, impose one penalty based on the highest degree offense if: (1) the defendant was not placed in supervisory treatment or ordered to perform reformative service; (2) "multiple penalties would constitute a serious hardship that outweighs the need to deter the defendant from future criminal activity"; and (3) "imposition of a single penalty would foster the defendant's rehabilitation."
194
(b)
Treatment Program in Lieu of Payment. N.J.S.A.
2C:35- 15(e) authorizes the court to suspend collection of the penalty
"provided the person is ordered by the court to participate in a drug or
alcohol rehabilitation program," and the defendant "agrees to pay for
all or some portion of the costs associated with the rehabilitation." Upon
proof of successful completion of the program the defendant may request the
court reduce the penalty by any amount the defendant paid for participation in
the program. Ibid.
(c)
Service in Lieu of Payment. N.J.S.A.
2C:35-15(f) provides that the defendant "may propose to the court and the
prosecutor a plan to perform reformative service in lieu of payment of up to
one-half of the penalty amount imposed."
6. Drug
Offenses and License Forfeiture. N.J.S.A.
2C:35-16(a) requires forfeiture of a defendant's driver's license for a period
between six months and two years absent compelling circumstances and upon
conviction of a drug offense under Chapter 35 or 36 of Title 2C.
"[C]ompelling circumstances warranting an exception exist if the
forfeiture . . . will result in extreme hardship and alternative means of
transportation are not available."
Post-Sentencing
Motion to Revoke the License Suspension.
N.J.S.A.
2C:35-16(d) allows the defendant to request the court revoke a remaining
license suspension term based on compelling circumstances.
7.
Controlled Dangerous Substance Lab Fee. N.J.S.A.
2C:35- 20(a) and (b) require that: a $50 criminal laboratory analysis fee be
imposed on anyone convicted of a Chapter 35 drug offense; a $50 criminal
laboratory fee be imposed on anyone placed in supervisory treatment pursuant to
N.J.S.A. 2C:36A-1 or N.J.S.A. 2C:43-12; and a $25 laboratory analysis fee be
imposed on anyone adjudicated delinquent for a Chapter 35 offense.
8.
Anti-Drug Profiteering Penalty. N.J.S.A.
2C:35A-3 provides that where a person has been convicted of a Chapter 35 or 36
drug crime, any street gang crime, as defined by N.J.S.A. 2C:44- 3(h), "or
an attempt or conspiracy to commit such a crime, the court shall, upon the
application of the prosecutor, sentence the person to pay a monetary
penalty" "provided the court finds at a hearing, which may occur at
the time of sentencing, that
195
the
prosecutor has established by a preponderance of the evidence one or more
of" the following grounds:
- · The defendant was
convicted of violating N.J.S.A. 2C:35-3 (leader of a narcotics trafficking
network), N.J.S.A. 2C:5-2(g) (leader of organized crime), or a Chapter 41
racketeering offense that involved the manufacture, distribution,
possession with intent to distribute, or transportation of any controlled
dangerous substance or analog, N.J.S.A. 2C:35A-(b)(1); or
- · "A defendant is a
drug profiteer when the conduct
constituting
knowingly
distribution
dangerous substance, controlled substance analog or drug paraphernalia as a substantial source of livelihood," N.J.S.A. 2C:35A-3(b)(2); or
knowingly
distribution
dangerous substance, controlled substance analog or drug paraphernalia as a substantial source of livelihood," N.J.S.A. 2C:35A-3(b)(2); or
- · "A
defendant is a wholesale drug distributor when the conduct constituting
the crime involves the manufacture, distribution or intended or attempted
distribution of a controlled dangerous substance or controlled substance
analog to any other person for pecuniary gain, knowing, believing, or
under circumstances where it reasonably could be assumed that such other
person would in turn distribute the substance to another or others for
pecuniary gain." N.J.S.A. 2C:35A-3(b)(3)(a). If the sole basis for
the penalty is the defendant's status as a wholesale distributor, the
court shall not impose the penalty "if the defendant establishes by a
preponderance of the evidence . . . that his participation in the conduct
constituting the crime was limited solely to operating a conveyance used
to transport a controlled dangerous substance or controlled substance
analog, or loading or unloading the substance into such a conveyance or
storage facility," N.J.S.A. 2C:35A-3(b)(3)(b); or
- · "The defendant is
a professional drug distributor," N.J.S.A. 2C:35A-3(b)(4); or
- · "The
defendant was involved in criminal street gang related activity,"
N.J.S.A. 2C:35A-3(b)(5).
the crime
shows that the engaged in the illegal
person
has manufacture, controlled
or
transportation of any
196
Penalty
Amounts. N.J.S.A. 2C:35A-4 provides
the following penalty amounts, which may be paid in installments, N.J.S.A.
2C:35A-6:
- · $200,000 (first degree
crime); $100,000 (second degree crime); $50,000 (third degree crime);
$25,000 (fourth degree crime); or
- · "[T]hree times
the street value of all controlled dangerous substances or controlled
substance analogs involved, or three times the market value of all drug
paraphernalia involved, if this amount is greater than that provided"
above; or
- · "[A]n amount
equal to three times the value of any benefit illegally obtained by the
actor for himself or another, or any injury to or benefit deprived of
another."
Note: This statute is subject to the N.J.S.A. 2C:35-12 waiver provision, discussed further in section J of this chapter.
9. Drug Abuse Education Assessment. N.J.S.A. 2C:43-3.5(a) requires the court to impose a $50 assessment for each drug offense under Chapter 35 or 36 of Title 2C.
E. Merger
of Certain Drug Offenses: Statutory Provisions
The
following statutes prohibit certain drug offenses from merging into other
offenses. For purposes of special probation, the court need not determine
whether offenses merge because eligibility is based on the defendant's
conviction and substance abuse.
1. Leader
of a Narcotics Trafficking Network. N.J.S.A.
2C:35- 3 precludes merger with any offense that is the object of the
conspiracy.
2. Booby
Traps in the Manufacturing or Distribution of Drugs.
N.J.S.A.
2C:35-4.1(e) prohibits the conviction from merging with a conviction for any
offense in Chapter 35, or for a conspiracy or attempt to commit an offense
under Chapter 35.
197
3.
Employing a Juvenile in a Drug Distribution Scheme.
N.J.S.A.
2C:35-6 provides that the conviction shall not merge with a conviction for a
violation of N.J.S.A. 2C:35-3 (leader of narcotics trafficking network),
N.J.S.A. 2C:35-4 (maintaining or operating a CDS production facility), N.J.S.A.
2C:35-5 (manufacturing, distributing or dispensing), or N.J.S.A. 2C:35-9
(strict liability for drug induced death).
4.
Manufacturing, Distributing or Dispensing a Controlled Dangerous Substance on
School Property. N.J.S.A. 2C:35-7(c)
precludes the conviction from merging with a conviction under N.J.S.A. 2C:35-5
(manufacturing, distributing or dispensing) or N.J.S.A. 2C:35-6 (employing a
juvenile in a drug distribution scheme).
5. Drug
Distribution Within 500 Feet of Public Property.
N.J.S.A.
2C:35-7.1(c) precludes merger with a conviction under N.J.S.A. 2C:35-5
(manufacturing, distributing or dispensing), or N.J.S.A. 2C:35-6 (employing a
juvenile in a drug distribution scheme).
6. Drug
Induced Death. N.J.S.A. 2C:35-9(d)
precludes merger "with a conviction for leader of narcotics trafficking
network, maintaining or operating a controlled dangerous substance production
facility, or for unlawfully manufacturing, distributing, dispensing or
possessing with intent to manufacture, distribute or dispense the controlled
dangerous substance or controlled substance analog which resulted in the
death."
7.
Possession of a Weapon During a Drug or Bias Crime.
N.J.S.A.
2C:39-4.1(d) prohibits merger with any of the following offenses:
- · Leader of a narcotics
trafficking network (N.J.S.A. 2C:35-3);
- · Maintaining or
operating a drug production facility (N.J.S.A. 2C:35-4);
- · Manufacturing or
distributing drugs (N.J.S.A. 2C:35-5);
- · Manufacturing and
dispensing Gamma Hydroxybutyrate
(N.J.S.A. 2C:35-5.2); -
198
- · Manufacturing and
dispensing Flunitrazepam (N.J.S.A. 2C:35-5.3);
- · Employing a juvenile
in a drug distribution scheme (N.J.S.A. 2C:35-6);
- · Possession of drugs on
or near school property (N.J.S.A. 2C:35-7);
- · Distribution or
possession of drugs on public property (N.J.S.A. 2C:35-7.1);
- · Possession,
distribution or manufacturing imitation drugs (N.J.S.A. 2C:35-11); and
- · Bias intimidation
(N.J.S.A. 2C:16-1).
F.
Standards Relating to Imprisonment: Statutory
Provisions
1.
Presumption of Non-Imprisonment Inapplicable to Distribution to a Minor or
Pregnant Female. While third degree
crimes are usually subject to the presumption of non- imprisonment, N.J.S.A.
2C:44-1(e), the crime of drug distribution to a minor or a pregnant female is
not subject to the presumption of non-imprisonment. N.J.S.A. 2C:35-8.
2.
Enhanced Ordinary Terms for Certain Offenses. The following offenses require enhanced ordinary terms.
(a)
Leader of a Narcotics Trafficking Network:
life imprisonment with a twenty-five-year period of parole ineligibility.
N.J.S.A. 2C:35-3.
Note: Pursuant to N.J.S.A. 2C:35-12, the State may waive this enhanced
term. See section J of this chapter for a discussion of the waiver
provision.
(b) Drug
Distribution to a Minor or a Pregnant Female: "twice the term of imprisonment, fine and penalty . . . authorized
or required to be imposed by" any provision of Title 2. N.J.S.A.
2C:35-8.
199
Note: Pursuant to N.J.S.A. 2C:35-12, the State may waive this enhanced
term. See section J of this chapter for a discussion of the waiver
provision.
G. Parole
Ineligibility: Statutory Provisions
The
following statutes mandate parole disqualifiers for certain drug offenses.
Parole ineligibility applies to terms of imprisonment, not to special
probation.
Note: All of the following statutes, except the No Early Release Act
(N.J.S.A. 2C:43-7.2), are subject to the N.J.S.A. 2C:35-12 waiver provisions
discussed in section J of this chapter.
1. Leader
of a Narcotics Trafficking Network. N.J.S.A.
2C:35- 3 requires the court to impose a life sentence with a twenty- five-year
period of parole ineligibility.
2.
Maintaining or Operating a Controlled Dangerous Substance Production Facility. N.J.S.A. 2C:35-4 requires a period of parole ineligibility between
one-third and one-half of the sentence imposed.
3. First
Degree Manufacturing, Distributing or Dispensing Certain Controlled Dangerous
Substances. N.J.S.A. 2C:35-5(b)(1) and
(6) require a period of parole ineligibility between one- third and one-half of
the sentence imposed.
4.
Employing a Juvenile in a Drug Distribution Scheme.
N.J.S.A.
2C:35-6 mandates a period of parole ineligibility at or between one-third and
one-half of the sentence imposed, or five years, whichever is greater.
5.
Manufacturing, Distributing or Dispensing a Controlled Dangerous Substance on
or Near School Property. N.J.S.A.
2C:35- 7(a) provides that if the offense involved less than one ounce of
marijuana, the period of parole ineligibility must be between one-third and
one-half of the sentence imposed, or one year, whichever is greater, and in all
other cases the period of parole ineligibility must be at or between one-third
and one- half of the sentence imposed, or three years, whichever is
greater.
200
(a)
Waiver of the Minimum Term Permitted. N.J.S.A.
2C:35- 7(b)(1) allows the court to waive the mandatory minimum term after
considering the defendant's prior record, seriousness of the offense, location
of the offense in relation to the school and children, and whether school was
in session when the defendant committed the offense. N.J.S.A. 2C:35-7(b)(2),
however, does not permit waiver if the defendant used or threatened violence,
possessed a firearm, or committed the offense on a school bus or property owned
by an elementary or secondary school, or by a school board.
(b) State
Appeal. If the court does not
impose a minimum term, the sentence shall not be final for ten days to allow
the State time to appeal the sentence. N.J.S.A. 2C:35- 7(b)(2)(b). "The
Attorney General shall develop guidelines to ensure the uniform exercise of discretion
in making determinations regarding whether to appeal" a sentence imposed
pursuant to N.J.S.A. 2C:35-7(b)(1).
6. Drug
Distribution to a Minor or a Pregnant Female.
N.J.S.A.
2C:35-8 requires the court to impose "twice the term of parole
ineligibility, if any, authorized or required to be imposed by" N.J.S.A.
2C:35-5(b) (drug distribution) or N.J.S.A. 2C:35-7 (distribution within a
school zone) "or any other provision of this title," upon application
of the prosecutor. If the defendant is convicted of more than one offense, the
court must impose one enhanced sentence on the most serious offense. Ibid. The
prosecutor must establish the basis for the enhanced sentence by a
preponderance of the evidence, and the court must hold a hearing on the matter.
Ibid.
7. The No
Early Release Act. N.J.S.A. 2C:43-7.2
requires the court to fix "a minimum term of 85% of the sentence imposed,
during which the defendant shall not be eligible for parole," and impose a
five-year term of parole supervision (first degree crime), or a three-year term
of parole supervision (second degree crime) for the following first and second
degree drug crimes:
· Booby traps in
manufacturing or distributing a controlled dangerous substance (N.J.S.A. 2C:35-
4.1(b)); and
· Drug induced deaths
(N.J.S.A. 2C:35-9). 201
H.
Extended Terms: Statutory Provisions
The
following offenses mandate extended terms for certain drug offenses. Extended
terms are inapplicable to special probation, which may not exceed five years.
N.J.S.A. 2C:35-14(a).
Note: The following statutes are subject to the N.J.S.A. 2C:35- 12
waiver provisions discussed in section J of this chapter.
1. Drug
Distribution to a Minor or a Pregnant Female.
N.J.S.A.
2C:35-8 requires the court to impose, upon application of the prosecutor,
"twice the term of imprisonment, fine and penalty, including twice the
term of parole ineligibility, if any, authorized or required to be imposed
by" N.J.S.A. 2C:35- 5(b) (drug distribution) or N.J.S.A. 2C:35-7
(distribution within a school zone) "or any other provision of this
title." If the defendant is convicted of more than one offense, the court
shall impose one enhanced sentence on the most serious offense. Ibid. The
prosecutor must establish the basis for the enhanced sentence by a
preponderance of the evidence, and the court must hold a hearing on the matter.
Ibid.
2. Repeat
Drug Offender. N.J.S.A. 2C:43-6(f)
provides that upon application of the prosecutor, the court must impose an
extended term with a parole disqualifier against anyone convicted of the
following crimes if the defendant also has a prior conviction of
"manufacturing, distributing, dispensing or possessing with intent to
distribute a controlled dangerous substance or controlled substance
analog":
- · Manufacturing,
distributing, dispensing or possessing with intent to distribute any
dangerous substance or controlled substance analog (N.J.S.A. 2C:35-5);
- · Maintaining or
operating a controlled dangerous substance production facility (N.J.S.A.
2C:35-4);
- · Employing a juvenile
in a drug distribution scheme (N.J.S.A. 2C:35-6);
- · Being a leader of a
narcotics trafficking network (N.J.S.A. 2C:35-3); or
202
· Distributing,
dispensing or possessing with intent to distribute within a school zone
(N.J.S.A. 2C:35-7).
(a)
Parole Disqualifier. Pursuant to N.J.S.A.
2C:35-6(f), the parole disqualifier "shall be fixed at, or between,
one-third and one-half of the sentence imposed by the court or three years,
whichever is greater, not less than seven years if the person is convicted of a
violation of N.J.S.A. 2C:35-6 [employing a juvenile in drug distribution], or
18 months in the case of a fourth degree crime."
(b) Hearing. The prosecutor must establish the ground for imposing sentence
pursuant to N.J.S.A. 2C:35-6(f) at a hearing, which may occur at the time of
sentencing. N.J.S.A. 2C:35-6(f).
(c)
Separation of Powers. As written, N.J.S.A.
2C:43-6(f) violates the doctrine of separation of powers by giving unfettered
power to prosecutors in the sentencing determination. State v. Lagares, 127
N.J. 20, 31 (1992). Hence, our Court has interpreted the statute as requiring
guidelines to assist prosecutorial decision-making, while reflecting the
legislative intent that extended sentences for repeat drug offenders should not
be the exception. State v. Lagares, 127 N.J. 20, 32 (1992).
(d)
Guidelines. For the guidelines
effective May 20, 1998, see Attorney General Directive 1998-1, incorporating by
reference Attorney General Guidelines for Negotiating Cases Under N.J.S.A.
2C:35-12. They are found at www.nj.gov/oag/dcj (click on
"Directives/Guidelines," then "Directives"). For a
discussion of the statewide guidelines issued in response to Lagares, see State
v. Kirk, 145 N.J. 159, 168-69 (1996).
Effective
for offenses committed on or after September 15, 2004, the Attorney General
promulgated revised guidelines. They are found at www.nj.gov/oag/dcj (click on
"Directives/Guidelines," then "Guidelines," then
"Brimage Guidelines 2").
I.
Consecutive Terms: Statutory Provisions
The
following statutes mandate consecutive prison terms for certain drug
offenses.
203
1. Booby
Traps in the Manufacturing or Distribution of Drugs.
N.J.S.A.
2C:35-4.1(e) requires the sentence be served consecutively to the sentence for
a conviction of any offense in Chapter 35, or a conspiracy or attempt to commit
an offense under Chapter 35, "unless the court, in consideration of the
character and circumstances of the defendant, finds that imposition of
consecutive sentences would be a serious injustice which overrides the need to
deter such conduct by others. If the court does not impose a consecutive
sentence, the sentence shall not become final for 10 days in order to permit
the appeal of such sentence by the prosecution."
2.
Possession of a Weapon During a Drug or Bias Crime.
N.J.S.A.
2C:39-4.1(d) requires the sentence run consecutively to the sentence for any of
the following offenses:
- · Leader of a narcotics
trafficking network (N.J.S.A. 2C:35-3);
- · Maintaining or
operating a drug production facility (N.J.S.A. 2C:35-4);
- · Manufacturing or
distributing drugs (N.J.S.A. 2C:35-5);
- · Manufacturing and
dispensing Gamma Hydroxybutyrate
(N.J.S.A. 2C:35-5.2);
- · Manufacturing and
dispensing Flunitrazepam (N.J.S.A. 2C:35-5.3);
- · Employing a juvenile
in a drug distribution scheme (N.J.S.A. 2C:35-6);
- · Possession of drugs on
or near school property (N.J.S.A. 2C:35-7);
- · Distribution or
possession of drugs on public property (N.J.S.A. 2C:35-7.1);
- · Possession,
distribution or manufacturing imitation drugs (N.J.S.A. 2C:35-11); and
- · Bias intimidation
(N.J.S.A. 2C:16-1). 204
J.
N.J.S.A. 2C:35-12 Waiver of Drug Offender Sentencing Enhancements: Statutory
Provisions
The
N.J.S.A. 2C:35-12 waiver provisions apply to certain mandatory parole
disqualifiers, extended terms and drug offense penalties.
1.
Statutory Authority. N.J.S.A. 2C:35-12
provides that when an offense in Chapter 35 of Title 2C (drug offenses) imposes
a mandatory term of parole ineligibility, a mandatory extended term that
includes a period of parole ineligibility, or an anti- drug profiteering
penalty pursuant to Chapter 35A of Title 2C, the court "shall impose the
mandatory sentence or anti-drug profiteering penalty unless the defendant has
pleaded guilty pursuant to a negotiated agreement or, in cases resulting in
trial, the defendant and the prosecution have entered into a post-conviction
agreement, which provides for a lesser sentence, period of parole ineligibility
or anti-drug profiteering penalty" (emphasis added). The agreement
"may provide for a specified term of imprisonment within the range of
ordinary or extended sentences authorized by law, a specified period of parole
ineligibility, a specified fine, a specified anti-drug profiteering penalty, or
other disposition." Ibid. The court may not impose a lesser sentence than
the one agreed to by the State and the defendant. Ibid.
2.
Constitutionality of N.J.S.A. 2C:35-12 and the Brimage Guidelines. To effectuate judicial review and avoid arbitrary and capricious
decisions, the prosecutor must make N.J.S.A. 2C:35-12 decisions based on
written standards. State v. Vasquez, 129 N.J. 189, 195-96 (1992). The Brimage
guidelines contain a "Table of Authorized Plea Offers," which
"sets forth presumptive plea offers based on a defendant's offense, his
prior criminal history, and the timing of the plea offer." State v. Fowlkes,
169 N.J. 387, 394 (2001).
The
Brimage guidelines in effect as of September 15, 2004 are available online at
www.nj.gov/oag/dcj. Click on "Directives/Guidelines," then
"Guidelines," then "Brimage Guidelines 2."
For the
Brimage guidelines in effect prior to September 15, 2004, click on
"Directives/Guidelines," then "Directives."
205
K. Drug
Offender Sentencing Enhancements: Case Law 1. Drug Offense Penalties.
(a)
Conspiracy. "[T]he mere conviction
under N.J.S.A. 2C:5-2 for the 'ordinary' crime of conspiracy, does not render a
person subject to the mandatory penalties of the Comprehensive Drug Reform Act,
even if the object of that conspiracy constitutes a Chapter 35 offense."
State in the Interest of W.M., 237 N.J. Super. 111, 118 (App. Div. 1989).
(b)
Accomplices. A defendant convicted of a
drug offense as an accomplice is subject to the mandatory drug offense
penalties. State v. Bram, 246 N.J. Super. 200, 208 (Law Div. 1990).
2. Drug
Offender Restraining Orders. Where the
court denies a N.J.S.A. 2C:35-5.7(h) request to impose a drug offender
restraining order, N.J.S.A. 2C:35-5.7(k) imposes a ten-day limitation period on
the State's right to appeal. State v. Fitzpatrick, 443 N.J. Super. 316, 320
(App. Div. 2015).
3. Drug
Offense License Suspension.
(a)
Multiple Offenses. Where a court imposes
sentence for multiple drug offenses subject to the mandatory forfeitures of
one's driver's license, pursuant to N.J.S.A. 2C:35-16, the license suspension
terms must run concurrently. State in the Interest of T.B., 134 N.J. 382, 387
(1993).
(b)
Timing. License suspension under
N.J.S.A. 2C:35-16(a) begins on the day of sentencing; the court has no
discretion to postpone or delay it. State v. Hudson, 286 N.J. Super. 149,
154-55 (App. Div. 1995). In the case of a juvenile, license suspension begins
the day after the defendant's seventeenth birthday. State in the Interest of
T.B., 134 N.J. 382, 388 (1993); State in the Interest of J.R., 244 N.J. Super.
630, 641 (App. Div. 1990). If the defendant's license is under suspension at
the time of sentencing, then the new license suspension will begin on the final
day of the current suspension. State in the Interest of T.B., 134 N.J. 382, 388
(1993).
206
(c)
License Forfeiture Exception. In
determining whether compelling circumstance exist to justify not revoking a
defendant's driving privileges under N.J.S.A. 2C:35-16(a), the court should
consider whether revocation will result in the defendant's loss of employment
or extreme hardship. State v. Bendix, 396 N.J. Super. 91, 95-96 (App. Div.
2007). Where a defendant "has occasioned the loss of his employment
through his unauthorized and criminal use of his employer's vehicle," the
court should find no compelling circumstances to justify not revoking the
defendant's license. State v. Carrero, 399 N.J. Super. 419, 425-26 (Law Div.
2007).
4. The
Drug Enforcement and Demand Reduction (DEDR) Penalty.
(a)
Policy. "As its name suggests,
the penalty is designed to reduce the demand for drugs by providing a source
for helping convicted defendants to reduce their demand for illegal
substances." State v. Monzon, 300 N.J. Super. 173, 177 (App. Div. 1997).
(b)
Treatment Program in Lieu of Payment and Wages. In reducing a penalty pursuant to N.J.S.A. 2C:35-15(e) by the
amount actually paid for participation in a treatment program, the court should
consider the amount withheld from a defendant's pay for work completed at the
treatment program. State v. Monzon, 300 N.J. Super. 173, 177-78 (App. Div.
1997).
(c)
Constitutionality. The drug enforcement
and demand reduction penalty does not constitute cruel and unusual punishment
under the Federal or State Constitution, and does not violate the equal
protection clauses, substantive or procedural due process rights, or the State
constitutional prohibition against amendment by reference. State v. Lagares,
127 N.J. 20, 36-37 (1992); State in the Interest of L.M., 229 N.J. Super. 88,
94-102 (App. Div. 1988), certif. denied, 114 N.J. 485 (1989).
(d)
Merger and Conspiracy. "Since
the principle of merger involves the avoidance of double penalties for the same
crime, Chapter 35 DEDR penalties may not be imposed on a conviction for both conspiracy
to possess a controlled dangerous substance, N.J.S.A. 2C:5-2, and for the
actual possession under N.J.S.A. 2C:35-10." State in the Interest of M.A.,
227 N.J. Super. 393, 395 (Ch. Div. 1988).
207
(e)
Pretrial Intervention Program. The court
may impose a drug enforcement and demand reduction penalty as a condition of
entry into a pretrial intervention program. State v. Bulu, 234 N.J. Super. 331,
342, 346-48 (App. Div. 1989).
(f) The
DEDR Penalty Is Mandatory. The DEDR
penalty is mandatory and must be set in accordance with the degree of crime of
which the defendant was convicted. State v. Malia, 287 N.J. Super. 198, 208
(App. Div. 1996); State v. Williams, 225 N.J. Super. 462, 464 (Law Div. 1988).
The court may not revoke the penalty after sentencing. State v. Gardner, 252
N.J. Super. 462, 465-66 (Law Div. 1991).
- 5. Drug
Offender Fines.
(a) Drug-Buy Money. The court may consider money the defendant received in selling drugs when determining the defendant's ability to pay a fine. State v. Newman, 132 N.J. 159, 177-79 (1993).
(b) Order of Payment. A defendant convicted of a drug offense must pay the Victims of Crime Compensation Board assessment (N.J.S.A. 2C:43-3.1), laboratory fee (N.J.S.A. 2C:35-20), and the drug enforcement and demand reduction penalty (N.J.S.A. 2C:35-15) before paying a fine. State v. Newman, 132 N.J. 159, 178 (1993).
- Merger
(a) Drug Distribution and Distribution in a School Zone.
While N.J.S.A. 2C:35-7(c) precludes merger of distribution- within-a-school-zone with a N.J.S.A. 2C:35-5 distribution conviction, subjecting a defendant to punishment under both statutes would violate principles of double jeopardy because N.J.S.A. 2C:35-5 does not require proof of any additional element. State v. Dillihay, 127 N.J. 42, 45, 51 (1992); State v. Brana, 127 N.J. 64, 67 (1992). To comply
with
double jeopardy principles, a N.J.S.A. 2C:35-7 conviction must merge with a
N.J.S.A. 2C:35-5 distribution conviction, but the N.J.S.A. 2C:35-7 period of
parole ineligibility survives the merger. State v. Dillihay, 127 N.J. 42, 54
(1992); State v. Brana, 127 N.J. 64, 67 (1992).
208
(b) Drug
Distribution and Distribution on Public Property.
The same
rationale applies to the anti-merger provision of N.J.S.A. 2C:35-7.1(c)
(precluding merger of a conviction for distributing within 500 feet of a public
housing facility, public park, or public building with a conviction under
N.J.S.A. 2C:35-5 (drug distribution), or N.J.S.A. 2C:35-6 (employing a juvenile
to distribute drugs)). State v. Gregory, 336 N.J. Super. 601, 607 (App. Div.
2001) (merging a third degree conviction under N.J.S.A. 2C:35-5 into a second
degree conviction under N.J.S.A. 2C:35-7.1); State v. Parker, 335 N.J. Super.
415, 420 (App. Div. 2000) (holding that a "third degree conviction under
N.J.S.A. 2C:35-7 should have merged into" the defendant's N.J.S.A.
2C:35-7.1 second degree conviction, with the mandatory minimum term's surviving
merger).
(c) Drug
Induced Death and Drug Distribution. Although
the anti-merger provision of N.J.S.A. 2C:35-9(d) (drug induced death)
explicitly prohibits merger into a conviction under N.J.S.A. 2C:35-5(a) (drug
distribution), a Section 5 offense will merge into a Section 9 offense if the
crimes arise out of the same transaction. State v. Maldonado, 137 N.J. 536, 583
(1994).
(d)
Constitutional Rights and Merger of Use of Booby Traps During Drug Distribution
or Manufacturing. N.J.S.A. 2C:35-
4.1(e) (precluding merger of a conviction for using booby traps in connection
with drug manufacturing or distribution with a drug offense) does not violate a
defendant's right to due process or to protection against double jeopardy under
either the federal or State Constitution. State v. Walker, 385 N.J. Super. 388,
408-11 (App. Div.), certif. denied, 187 N.J. 83 (2006).
7.
Constitutionality of the Enhanced Ordinary Term for Leader of a Drug
Trafficking Network. The requirement that
a leader of a narcotics trafficking network serve an ordinary term of life
imprisonment with twenty-five years of parole ineligibility (N.J.S.A. 2C:35-3)
does not constitute cruel and unusual punishment. State v. Kadonsky, 288 N.J.
Super. 41, 45 (App. Div.), certif. denied, 144 N.J. 589 (1996).
8. Parole
Ineligibility.
(a) Transfer to a Drug Treatment Program. A defendant
(a) Transfer to a Drug Treatment Program. A defendant
serving a
term that includes a period of parole 209
ineligibility
pursuant to N.J.S.A. 2C:35-7 (drug distribution within a school zone) may not
obtain transfer to a drug treatment program until he or she completes the
mandatory parole ineligibility period. State v. Diggs, 333 N.J. Super. 7, 10-11
(App. Div.), certif. denied, 165 N.J. 678 (2000). Similarly, a defendant cannot
obtain a transfer to a drug treatment program until any Graves Act mandatory
term has been served. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div.
1986).
(b) Day
Care Facility Not "School" Under Statute on Drug Distribution Within
a School Zone. "The plain legislative
intent [of N.J.S.A. 2C:35-7] to exclude day care providers, nursery schools,
and preschool programs suggests that the statute was not meant to apply to a
facility such as the Goddard School, a licensed day care provider," even
though the Goddard School teaches a kindergarten class. State v. Shelley, 205
N.J. 320, 328-30 (2011).
(c)
Indeterminate Terms in Young Adult Offender Drug Cases. A defendant subject to the mandatory parole ineligibility
provisions of N.J.S.A. 2C:35-5(b)(1) (drug distribution) and N.J.S.A. 2C:35-7
(distribution within a school zone) may not be sentenced to an indeterminate
term as a young adult offender pursuant to N.J.S.A. 2C:43-5. State v. Luna, 278
N.J. Super. 433, 437-38 (App. Div. 1995).
9. Repeat
Drug Offender Extended Term With Parole Ineligibility.
(a)
Arbitrary and Capricious Challenge. Prosecutors
must state on the record their reasons for seeking an extended term with a
parole disqualifier pursuant to N.J.S.A. 2C:43- 6(f), and the court may deny
the request where a defendant clearly and convincingly establishes that the
prosecutor's decision was arbitrary and capricious. State v. Lagares, 127 N.J.
20, 32-33 (1992).
(b) Sixth
Amendment. The requirement that the
court make findings on which to base a mandatory extended term with parole
disqualifier falls within the "prior conviction" exception of Blakely
v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412
(2004), and thus does not offend the Sixth Amendment requirement that a
jury
210
make such
findings. State v. Thomas, 188 N.J. 137, 149-52 (2006).
(c)
Chronology of Offenses and Convictions. The
chronological sequence of the offenses and convictions is irrelevant for
purposes of N.J.S.A. 2C:43-6(f). State v. Hill, 327 N.J. Super. 33, 41-42 (App.
Div. 1999), certif. denied, 164 N.J. 188 (2000). The only requirement is that
there be a previous conviction "at any time." Ibid. But where a
defendant enters guilty pleas to two different charges on the same day, in the
same proceeding, pursuant to one agreement, then N.J.S.A. 43-6(f) will not be
applicable. State v. Owens, 381 N.J. Super. 503, 512-13 (App. Div. 2005).
(d) The
Dunbar Factors. The factors set forth in
State v. Dunbar, 108 N.J. 80 (1987), as modified in State v. Jefimowicz, 119
N.J. 152 (1990), for setting an extended term apply when imposing a mandatory
extended term with parole ineligibility under N.J.S.A. 2C:43-6(f). State v.
Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005); State v. Williams, 310 N.J.
Super. 92, 98-99 (App. Div.), certif. denied, 156 N.J. 426 (1998).
10.
Museum as Public Property for Drug Distribution. A museum qualifies as a public building under N.J.S.A. 2C:35-7.1
(prohibiting drug distribution on public property), even if it does not have
regular and consistent hours and is open to the public only upon request. State
v. Chambers, 396 N.J. Super. 259, 263-66 (App. Div. 2007), certif. denied, 193
N.J. 586 (2008).
11. The
N.J.S.A. 2C:35-12 Provision Allowing Waiver of Certain Drug Offender Sentencing
Enhancements.
(a)
Constitutionality of the N.J.S.A. 2C:35-12 Waiver Provision. Although N.J.S.A. 2C:35-12 vests sentencing discretion in the
prosecutor, the statute does not violate separation of powers principles. State
v. Vasquez, 129 N.J. 189, 195-97 (1992). To allow judicial oversight and to
protect against arbitrary and capricious decisions, "the prosecutor should
state on the record the reasons for the decision to waive or the refusal to
waive the parole disqualifier" or extended term. Id. at 196. Accord State
v. Murray, 338 N.J. Super. 80, 90 (App. Div.), certif. denied, 169 N.J. 608
(2001); State v. Powell, 294 N.J.
211
Super.
557, 568 (App. Div. 1996); State v. Leslie, 269 N.J. Super. 78, 83 (App. Div.
1993), certif. denied, 136 N.J. 29 (1994).
(b)
Imposing Sentence After a N.J.S.A. 2C:35-12 Waiver.
If the
court accepts a plea agreement pursuant to N.J.S.A. 2C:35-12, the court must
impose the negotiated sentence. State v. Thomas, 392 N.J. Super. 169, 180 (App.
Div.), certif. denied, 192 N.J. 597 (2007); State v. Lebra, 357 N.J. Super.
500, 512 (App. Div. 2003). The court "has no discretion to lower the
custodial part of a section 12 plea agreement." State v. Thomas, 392 N.J.
Super. 169, 180 (App. Div.), certif. denied, 192 N.J. 597 (2007) (discussing
the holding in State v. Bridges, 131 N.J. 402, 408-09 (1993)). If the court is
inclined to impose a lesser sentence, then it must reject the plea. State v.
Thomas, 392 N.J. Super. 169, 180 (App. Div.), certif. denied, 192 N.J. 597
(2007). Note that if the plea agreement does not provide for a lesser sentence
than one mandated by the drug laws, N.J.S.A. 2C:35-12 does not apply, and the
court is free to impose a lesser prison term or period of parole ineligibility
than that contemplated by the plea agreement. State v. Thomas, 253 N.J. Super.
368, 374-75 (App. Div. 1992).
(c)
Illegal Sentence and N.J.S.A. 2C:35-12. "The
parties cannot negotiate an illegal sentence, and N.J.S.A. 2C:35-12 does not
suggest otherwise in providing that a negotiated sentence must be imposed in
lieu of the otherwise mandatory sentence." State v. Smith, 372 N.J. Super.
539, 542 (App. Div. 2004), certif. denied, 182 N.J. 428 (2005). See also State
v. Thomas, 392 N.J. Super. 169, 183 (App. Div.) (explaining that an agreement
to forego filing a motion to suppress does not render a sentence illegal),
certif. denied, 192 N.J. 597 (2007).
(d)
Defendant's Absence From Sentencing as Part of a Plea Agreement. A plea agreement may be valid and enforceable even though it
allows a court to increase a defendant's sentence in the event he or she fails
to appear for sentencing. State v. Shaw, 131 N.J. 1, 15 (1993) (allowing the
State to condition waiver of a minimum term in a drug case on the defendant's
appearance at sentencing). But see State v. Wilson, 206 N.J. Super. 182, 184
(App. Div. 1985) (extended sentence based entirely upon nonappearance is
212
illegal
because it is unrelated to any of the sentencing criteria set forth in the
Code).
If the
defendant violates a N.J.S.A. 2C:35-12 agreement that contained a promise to
appear at sentencing, the judge should not automatically void the waiver
agreement, but rather, should determine whether the failure to appear was
"material to the plea agreement and warrants revocation of the
waiver." State v. Diggs, 333 N.J. Super. 7, 11 (App. Div. 2000) (discussing
State v. Shaw, 131 N.J. 1, 17 (1993)). See also State v. Rolex, 329 N.J. Super.
220, 226 (App. Div. 2000), aff'd o.b., 167 N.J. 447 (2001).
(e)
N.J.S.A. 2C:35-12 Waiver Survives a Probation Violation. Where the court imposed a term of probation after the State waived
a minimum term pursuant to N.J.S.A. 2C:35-12, and the defendant violated
probation, the waiver will survive the probation violation. State v. Vasquez,
129 N.J. 189, 201-02 (1992). A prosecutor cannot overcome this rule by
including in the plea agreement a term that if the defendant violates
probation, the sentence will include a period of parole ineligibility. Id. at
208. However, the sentence for the probation violation may exceed the sentence
initially imposed pursuant to the plea agreement. State v. Ervin, 241 N.J.
Super. 458, 469 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990).
12. The Brimage
Guidelines.
(a) Sixth
Amendment and the Brimage Guidelines. The
Brimage guidelines do not violate the Sixth Amendment principles established in
Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d
403, 412 (2004), because the guidelines do not result in a sentence above the
statutory maximum and because a defendant who negotiates a sentence waives the
right to have a jury find the facts necessary to support the sentence. State v.
Thomas, 392 N.J. Super. 169, 186-87 (App. Div.), certif. denied, 192 N.J. 597
(2007).
(b)
Motion to Suppress and Increased Punishment. The guidelines do not impermissibly burden a defendant's right to
file a motion to suppress even though they provide for increased punishment if
the defendant pleads guilty after filing a motion to suppress. State v. Thomas,
392 N.J.
213
Super.
169, 179 (App. Div.), certif. denied, 192 N.J. 597 (2007).
(c)
Post-Conviction Agreements and Plea Offers. The Brimage guidelines apply to post-conviction sentencing
agreements in addition to plea offers. State v. Castaing, 321 N.J. Super. 292,
296 (App. Div. 1999).
(d)
Objections on the Record. To
provide an adequate record for review, a defendant should raise objections at
the trial level. State v. Coulter, 326 N.J. Super. 584,
589 (App. Div. 1999). "Where a defendant objects to a prosecutor's assignment of certain aggravating factors to the plea offer, or the prosecutor's failure to credit a defendant with a mitigating factor," the court should hold a "non-plenary type hearing" where the prosecutor must "show that the decision being challenged was made on a 'good faith basis' and 'based upon the information available to the prosecutor and reasonable inferences that can be drawn from such information.'" Ibid. (quoting State v. Brimage, 153 N.J. 1, 5 (1998)).
589 (App. Div. 1999). "Where a defendant objects to a prosecutor's assignment of certain aggravating factors to the plea offer, or the prosecutor's failure to credit a defendant with a mitigating factor," the court should hold a "non-plenary type hearing" where the prosecutor must "show that the decision being challenged was made on a 'good faith basis' and 'based upon the information available to the prosecutor and reasonable inferences that can be drawn from such information.'" Ibid. (quoting State v. Brimage, 153 N.J. 1, 5 (1998)).
(e)
State's Mistake Regarding the Brimage Guidelines.
"[I]f
a judge is satisfied that the State has made an honest mistake in determining
the terms of a plea offer" pursuant to the Brimage Guidelines, the State
should be allowed to withdraw the offer before the date of sentence. State v.
Veney, 327 N.J. Super. 458, 461 (App. Div. 2000).
(f)
Standard of Review. The Brimage
guidelines anticipate review under the "gross and patent abuse of
prosecutorial discretion" standard. State v. Coulter, 326 N.J. Super. 584,
588-89 (App. Div. 1999). If the prosecutor failed to consider the guidelines in
negotiating a plea, the defendant is entitled to a remand. State v. Hammer, 346
N.J. Super. 359, 371-72 (App. Div. 2001).
13. Cruel and
Unusual Punishment.
(a) Drug
Crimes Penalties. The mandatory drug
enforcement and demand reduction (DEDR) penalties of the Comprehensive Drug
Reform Act do not constitute cruel and unusual punishment. State v. Lagares,
127 N.J. 20, 36-37 (1992).
214
(b)
Leader of a Drug Trafficking Network Life Imprisonment. The requirement that a leader of a narcotics trafficking network
serve an ordinary term of life imprisonment with twenty-five years of parole
ineligibility (N.J.S.A. 2C:35-3) does not constitute cruel and unusual
punishment even when the drug involved is marijuana, as opposed to heroin or
cocaine. State v. Kadonsky, 288 N.J. Super. 41, 45 (App. Div.), certif. denied,
144 N.J. 589 (1996).
(c) Drug
Induced Death, Strict Liability. The
statute imposing strict liability for a drug induced death (N.J.S.A. 2C:35-9)
does not violate the Federal or State constitutional prohibitions against cruel
and unusual punishment. State v. Maldonado, 137 N.J. 536, 556-60 (1994).
215
XV. SEX OFFENDER SENTENCING
This
chapter discusses the Title 2C provisions that provide for or require enhanced
sentencing for sex crimes and offenses that often accompany sex crimes (see
Sections A, B, and E through I). In some cases, the court may not impose a
sentence of probation and must impose parole supervision for life (see sections
C and D). Depending on the nature of the defendant's conduct and ability to be
rehabilitated, the court may require the defendant to receive inpatient or
outpatient sex offender treatment (see section J). Following completion of the
sentence, the defendant will be subject to reporting requirements and may be
civilly committed for treatment (see Section I). Section K discusses case law
on sex offender sentencing.
A. Merger
of Certain Offenses Prohibited: Statutory Provisions
1. Luring
or Enticing a Child. N.J.S.A. 2C:13-6(f)
precludes merger "with any other criminal offense."
2. Luring
or Enticing an Adult. N.J.S.A. 2C:13-7(f)
precludes merger "with any other criminal offense."
3. Third
Degree Recording and Third Degree Disclosing Images of Sexual Contact. N.J.S.A. 2C:14-9(h) precludes one offense from merger into the
other.
B.
Enhanced Ordinary Terms of Imprisonment for Certain Offenses: Statutory
Provisions
The
ordinary terms of imprisonment for the following offenses exceed the generally
applicable ordinary terms set forth in N.J.S.A. 2C:43-6(a) (i.e., ten to twenty
years for a first degree crime, five to ten years for a second degree crime,
three to five years for a third degree crime, and a period not to exceed
eighteen months for a fourth degree crime).
1.
Kidnapping in the First Degree:
(a) Victim Is Sixteen Years of Age or Older: between
(a) Victim Is Sixteen Years of Age or Older: between
fifteen and thirty
years. N.J.S.A. 2C:13-1(c)(1).
216
(b)
Victim Is Less Than Sixteen Years Old:
twenty-five years without parole eligibility, or a term between twenty- five
years and life imprisonment with a parole ineligibility period of twenty-five
years, if: (a) the defendant subjected the victim to a sexual assault (N.J.S.A.
2C:14-2), a criminal sexual contact (N.J.S.A. 2C:14-3), or endangerment
(N.J.S.A. 2C:24-4) or (b) the defendant sold or delivered the victim for
pecuniary gain, and the sale did not lead to the victim's return to a parent or
guardian. N.J.S.A. 2C:13-1(c)(2).
2. Human
Trafficking: twenty years without
parole eligibility, or a prison term between twenty years and life with a
parole ineligibility period of twenty years. N.J.S.A. 2C:13- 8(d).
C.
Restrictions on Noncustodial Terms: Statutory Provisions
1.
Probation Prohibited. N.J.S.A. 2C:43-2(g)
instructs that the court may not sentence a defendant to probation for any of
the following offenses, which require a special sentence of parole supervision
for life:
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Sexual assault
(N.J.S.A. 2C:14-2(b) or (c));
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3(a));
- · Kidnapping (N.J.S.A.
2C:13-1(c)(2));
- · Endangering the
welfare of a child by engaging in sexual conduct that impairs or debauches
the morals of the child (N.J.S.A. 2C:24-4(a));
- · Endangering the
welfare of a child by way of child pornography (N.J.S.A. 2C:24-4(b)(3));
- · Luring (N.J.S.A. 2C:13-6);
and
- · A violation of a
special sentence of community
supervision for life (N.J.S.A. 2C:43-6.4(d)). -
217
2.
Offenses That Preclude Suspension of Sentence and Noncustodial Terms.
(a)
Luring or Enticing a Child (Repeat Offender).
N.J.S.A.
2C:13-6(d) prohibits the court from suspending a sentence and from imposing a
noncustodial term against anyone convicted of a second or subsequent offense of
luring or enticing a child.
(b)
Luring an Adult. N.J.S.A. 2C:13-7(f)
prohibits the court from suspending a sentence and from imposing a noncustodial
term for luring an adult.
(c)
Sexual Assault or Criminal Sexual Contact. N.J.S.A. 2C:14-6 prohibits the court from suspending a sentence
and imposing a noncustodial term if the defendant has a prior conviction for
sexual assault or criminal sexual contact.
(d)
Possession of 100 or More Items Depicting the Sexual Exploitation or Abuse of a
Child. N.J.S.A. 2C:24- 4(b)(5)(b)
requires the court impose a term of imprisonment if the defendant possessed 100
or more items depicting the sexual exploitation or abuse of a child "
unless, having regard to the character and condition of the defendant, it is of
the opinion that imprisonment would be a serious injustice which overrides the
need to deter such conduct by others."
D. Parole
Supervision for Life: Statutory Provisions
1.
Statutory Authority for Mandatory Parole Supervision for Life. N.J.S.A. 2C:43-6.4(a) requires the court impose a sentence of
parole supervision for life, in addition to any other sentence authorized by
Title 2C, for the following offenses, or an attempt to commit any of the
following offenses:
· Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
· Sexual assault
(N.J.S.A. 2C:14-2(b) or (c));
· Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3(a));
· Kidnapping (N.J.S.A.
2C:13-1(c)(2)); 218
- · Endangering the
welfare of a child by engaging in sexual conduct which would impair or
debauch the morals of the child (N.J.S.A. 2C:24-4(a));
- · Endangering the
welfare of a child by way of child pornography (N.J.S.A. 2C:24-4(b)(3));
- · Luring (N.J.S.A.
2C:13-6); and
- · A violation of a
condition of a special sentence of community supervision for life pursuant
to N.J.S.A. 2C:43-6.4(d).
Note: Prior to 2003, N.J.S.A. 2C:43-6.4 spoke only of community supervision for life. In passing L. 2003, c. 267, § 1, the Legislature amended N.J.S.A. 2C:43-6.4 to replace community supervision for life with the harsher sentence of parole supervision for life. For a discussion of the ways in which the two special sentences differ see State v. Perez, 220 N.J. 423, 436-42 (2015).
2. Parole
Supervision for Life Upon Motion by the Prosecutor.
If the
defendant is convicted of second degree child pornography (N.J.S.A.
2C:24-4(b)(4) or (5)), or an attempt to commit the offense, the court shall
impose a sentence of parole supervision for life if the prosecutor so requests,
unless the court finds that the sentence "is not needed to protect the
community or deter the defendant." N.J.S.A. 2C:43-6.4(a).
3.
Conditions of Parole Supervision for Life. Both the parole board and the court may impose conditions of
parole that are "appropriate to protect the public and foster
rehabilitation." N.J.S.A. 2C:43-6.4(b). Conditions may include
restrictions on internet access, as stated in N.J.S.A. 2C:43-6.4(f).
4. Timing
of Parole Supervision for Life. Parole
supervision for life commences immediately upon the defendant's release from
incarceration for any offense. N.J.S.A. 2C:43-6.4(b).
5.
Suspended Sentence and Parole Supervision for Life. If the court suspends the imposition of sentence on a defendant
who is convicted of any offense subject to parole supervision for life, the
parole supervision for life will begin immediately. N.J.S.A.
2C:43-6.4(b).
219
6.
Custody of the Defendant While Serving Parole Supervision for Life. Defendants serving the special sentence of parole supervision for
life remain in the legal custody of the Commissioner of Corrections. N.J.S.A.
2C:43-6.4(b). They are supervised by the Division of Parole, subject to the
provisions and conditions set forth in the statutes governing parole, and
"subject to conditions appropriate to protect the public and foster
rehabilitation." N.J.S.A. 2C:43-6.4(b).
7.
Request to Terminate Parole Supervision for Life. The court may grant a release from parole supervision for life
upon proof by clear and convincing evidence that the defendant has not
committed a crime in fifteen years since the last conviction or release from
incarceration, whichever is later, and that the defendant does not pose a
threat to others. N.J.S.A. 2C:43- 6.4(c).
8.
Violation of Parole Supervision for Life (Third Degree Crime). A violation of parole supervision for life without good cause is a
third degree offense. N.J.S.A. 2C:43-6.4(d). The person shall be sentenced to a
term of imprisonment "unless the court is clearly convinced that the
interests of justice so far outweigh the need to deter this conduct and the
interest in public safety that a sentence to imprisonment would be a manifest
injustice." Ibid.
9.
Violation of Parole Supervision for Life (Extended Term Without Parole). N.J.S.A. 2C:43-6.4(e) provides that if the defendant committed any
of the following offenses while serving parole supervision for life, the court
must impose an extended term pursuant to N.J.S.A. 2C:43-7, and the defendant
must serve the entire term before returning to parole supervision for
life:
· Murder (N.J.S.A.
2C:11-3);
· Manslaughter (N.J.S.A. 2C:11-4);
· Death by auto or vessel (N.J.S.A. 2C:11-5); · Aggravated assault (N.J.S.A. 2C:12-1(b));
· Kidnapping (N.J.S.A. 2C:13-1);
· Luring a child (N.J.S.A. 2C:13-6);
· Manslaughter (N.J.S.A. 2C:11-4);
· Death by auto or vessel (N.J.S.A. 2C:11-5); · Aggravated assault (N.J.S.A. 2C:12-1(b));
· Kidnapping (N.J.S.A. 2C:13-1);
· Luring a child (N.J.S.A. 2C:13-6);
220
- · Sexual assault
(N.J.S.A. 2C:14-2);
- · Criminal sexual
contact (N.J.S.A. 2C:14-3);
- · Endangering the
welfare of a child (N.J.S.A. 2C:24-4);
- · Second degree burglary
(N.J.S.A. 2C:18-2); or
- · Possession of a weapon
for an unlawful purpose (N.J.S.A. 2C:39-4(a)).
E. Parole Ineligibility: Statutory Provisions
1. Kidnapping of a Minor. N.J.S.A. 2C:13-1(c)(2) requires the court to impose a term between twenty-five years and life imprisonment with a parole ineligibility period of twenty-five years when (a) the victim was less than sixteen years old and was subjected to a sexual assault (N.J.S.A. 2C:14-2), a criminal sexual contact (N.J.S.A. 2C:14-3), or endangerment (N.J.S.A. 2C:24-4); or (b) the defendant sold or delivered the victim for pecuniary gain, and the sale did not lead to the victim's return to a parent or guardian. The court must merge the underlying offenses into the kidnapping conviction. N.J.S.A. 2C:13- 1(c)(2).
2. Luring or Enticing a Child (Repeat Offenders). N.J.S.A. 2C:13-6(d) requires a parole disqualifier of one-third to one- half of the sentence imposed, or three years, whichever is greater for a second or subsequent offense of luring or enticing a child into a motor vehicle, structure or isolated area with the purpose to commit a criminal offense with or against the child. If the court imposes an extended term, the term of parole ineligibility must be one-third to one-half of the sentence imposed, or five years, whichever is greater. N.J.S.A. 2C:13-6(d).
3. Luring or Enticing a Child (Certain Persons). N.J.S.A. 2C:13-6(e) requires a five-year parole ineligibility term for the crime of luring or enticing a child (N.J.S.A. 2C:13-6) when the defendant has a prior conviction for a violation of N.J.S.A.
2C:14-2
(sexual assault), N.J.S.A. 2C:14-3(a) (aggravated criminal sexual contact), or
N.J.S.A. 2C:24-4 (endangering the welfare of a child). If the court imposes an
extended term,
221
then the
parole disqualifier provision is inapplicable. N.J.S.A. 2C:13-6(e).
4. Luring
or Enticing an Adult (Repeat Offenders). N.J.S.A. 2C:13-7(d) mandates a parole ineligibility period of
one-third to one-half the sentence imposed, or one year, whichever is greater,
for a second or subsequent offense of luring or enticing a person into a motor
vehicle, structure or isolated area with the purpose to commit a criminal
offense with or against the person or any other person. If the defendant is
sentenced to an extended term, the period of parole ineligibility shall be
one-third to one-half the sentence imposed, or five years, whichever is
greater. N.J.S.A. 2C:13-7(d).
5. Luring
or Enticing an Adult (Certain Persons). N.J.S.A.
2C:13-7(e) requires a parole ineligibility period of three years for luring or
enticing an adult if the defendant has a prior conviction for a violation of
N.J.S.A. 2C:14-2 (sexual assault), N.J.S.A. 2C:14-3(a) (aggravated criminal
sexual contact), or N.J.S.A. 2C:24-4 (endangering the welfare of a child). If
the court imposes an extended term, then the parole ineligibility provision is
inapplicable. N.J.S.A. 2C:13-7(e).
6. Human
Trafficking. N.J.S.A. 2C:13-8(d)
mandates a twenty- year term of parole ineligibility.
7.
Assisting in Human Trafficking. N.J.S.A.
2C:13-9(c)(1) requires a period of parole ineligibility of one-third to one-
half of the term of imprisonment, or three years, whichever is greater.
8.
Aggravated Sexual Assault of a Child. N.J.S.A.
2C:14- 2(a)(7) requires a twenty-five-year period of parole ineligibility be
imposed on a defendant convicted of aggravated sexual assault of a child under
age thirteen. However, N.J.S.A. 2C:14-2(d) allows the prosecutor to negotiate a
fifteen-year sentence with no possibility of parole. N.J.S.A. 2C:14-2.1
provides that "the victim of the sexual assault shall be provided an
opportunity to consult with the prosecuting authority prior to the conclusion
of any plea negotiations."
9. Sexual
Assault or Aggravated Criminal Sexual Contact (Repeat Offender). N.J.S.A. 2C:14-6 requires the court impose on a second or
subsequent offender of N.J.S.A. 2C:14-2 (sexual assault) or N.J.S.A. 2C:14-3(a)
(aggravated criminal sexual
222
contact),
a minimum period of parole ineligibility of at least five years on an ordinary
sentence (i.e., a non-extended term sentence).
10.
Endangering the Welfare of a Child (Computer Related Sex Offense). N.J.S.A. 2C:24-4(b)(5)(a) requires a parole disqualifier of
one-third to one-half of the sentence imposed, or five years, whichever is
greater, for distributing, possessing, storing or maintaining by way of a
file-share program, twenty-five or more items depicting the sexual exploitation
or abuse of a child.
11. The
No Early Release Act. N.J.S.A. 2C:43-7.2
requires the court fix "a minimum term of 85% of the sentence imposed,
during which the defendant shall not be eligible for parole," and impose a
five-year term of parole supervision (first degree crime), or a three-year term
of parole supervision (second degree crime) for the following first and second
degree sex crimes:
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Sexual assault
(N.J.S.A. 2C:14-2(b) and (c)(1)); and
- · Endangering the
welfare of a child by way of child pornography (N.J.S.A. 2C:24-4(b)(3)).
F. Mandatory Extended Terms: Statutory Provisions
1. Second
Degree Sexual Acts With a Child and Child Pornography. N.J.S.A. 2C:24-4(b)(5)(a) requires the court to impose an extended
term on a person convicted of a second or subsequent offense of second degree
(1) engaging in sexual acts with a child or the simulation of such acts knowing
or intending that the act may be photographed, filmed or reproduced; or (2)
filming, photographing or reproducing the image of a child in a sex act; or (3)
distributing, possessing or sharing an item depicting the sexual exploitation
or abuse of a child.
2. Third
Degree Sexual Acts With a Child and Pornography. N.J.S.A. 2C:24-4(b)(5)(b) provides that a convicted of a second or
subsequent offense of third
Child
person
degree
223
knowingly
possessing, receiving, viewing or having under his or her control an item
depicting the sexual exploitation or abuse of a child shall be sentenced to an
extended term of imprisonment.
3. Sex
Offender Violation of Parole Supervision for Life.
N.J.S.A.
2C:43-6.4(e) provides that if a defendant commits any of the following offenses
while serving parole supervision for life the court must impose an extended
term, and the defendant must serve the entire term before returning to parole
supervision for life:
- · Murder (N.J.S.A.
2C:11-3);
- · Manslaughter (N.J.S.A.
2C:11-4);
- · Death by auto or
vessel (N.J.S.A. 2C:11-5);
- · Aggravated assault
(N.J.S.A. 2C:12-1(b));
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Luring a child
(N.J.S.A. 2C:13-6);
- · Sexual assault
(N.J.S.A. 2C:14-2);
- · Criminal sexual
contact (N.J.S.A. 2C:14-3);
- · Endangering the
welfare of a child (N.J.S.A. 2C:24-4);
- · Second degree burglary
(N.J.S.A. 2C:18-2); or
- · Possession of a weapon
for an unlawful purpose (N.J.S.A. 2C:39-4(a)).
4.
Persistent Violent Offenders (also known as the "Persistent Offenders
Accountability Act" and the "Three Strikes and You're In" Law). N.J.S.A. 2C:43-7.1 requires the court to impose either a life
sentence without parole or an extended term, depending on the crime committed
and after a hearing.
(a) Life
Without Parole. N.J.S.A. 2C:43-7.1(a)
provides that a person convicted of any of the following crimes, or their
substantial equivalent under any similar statute,
224
"who
has been convicted of two or more crimes that were committed on prior and
separate occasions, regardless of the dates of the convictions," shall be
sentenced to a term of life imprisonment without parole:
· Murder (N.J.S.A.
2C:11-3);
· Aggravated manslaughter (N.J.S.A. 2C:11-4(a)); · First degree kidnapping (N.J.S.A. 2C:13-1);
· Sexual assault (N.J.S.A. 2C:14-2(a)(3) to (6)); · First degree robbery (N.J.S.A. 2C:15-1); or
· Carjacking (N.J.S.A. 2C:15-2).
· Aggravated manslaughter (N.J.S.A. 2C:11-4(a)); · First degree kidnapping (N.J.S.A. 2C:13-1);
· Sexual assault (N.J.S.A. 2C:14-2(a)(3) to (6)); · First degree robbery (N.J.S.A. 2C:15-1); or
· Carjacking (N.J.S.A. 2C:15-2).
Note: Pursuant to N.J.S.A. 2C:43-7.1(e), a defendant sentenced to life
without parole under section N.J.S.A. 2C:43-7.1(a) may be released on parole if
the defendant "is at least 70 years of age" and "has served at
least 35 years in prison pursuant to" N.J.S.A. 2C:43-7.1, and "the
full Parole Board determines that the defendant is not a danger to the safety
of any other person or the community."
(b)
Extended Term. N.J.S.A. 2C:43-7.1(b)
requires the court to impose an extended term if the circumstances in
subsection (1) or (2) exist:
(1) the
defendant is being sentenced for any of the following crimes and has two or
more convictions for any of those crimes or the crimes enumerated in N.J.S.A.
2C:43-7.1(a), "regardless of the dates of the convictions":
- · Second degree
manslaughter (N.J.S.A. 2C:11-4);
- · Second or third degree
assault (N.J.S.A. 2C:12-
1(b));
- · Second degree
kidnapping (N.J.S.A. 2C:13-1);
- · Aggravated criminal
sexual contact under any circumstances set forth in N.J.S.A. 2C:14-
2(a)(3) to (6) (N.J.S.A. 2C:14-3);
225
· Second degree robbery
(N.J.S.A. 2C:15-1);
· Second degree
burglary (N.J.S.A. 2C:18-2); or
· Second degree
possession of weapons for an unlawful purposes (N.J.S.A. 2C:39-4).
OR
(2) The
defendant: (1) is convicted of a crime enumerated in N.J.S.A. 2C:43-7.1(a); (2)
"does not have two or more prior convictions that require sentencing
under" N.J.S.A. 2C:43-7.1(a); and (3) has two or more prior convictions
that would require sentencing under" N.J.S.A. 2C:43-7.1(b)(1) if the
defendant "had been convicted of a crime enumerated in" N.J.S.A.
2C:43-7.1(b)(1).
(c)
Timing of Convictions. N.J.S.A.
2C:43-7.1(c) provides: "The provisions of this section shall not apply
unless the prior convictions are for crimes committed on separate occasions and
unless the crime for which the defendant is being sentenced was committed
either within 10 years of the date of the defendant's last release from
confinement for commission of any crime or within 10 years of the date of the
commission of the most recent of the crimes for which the defendant has a prior
conviction."
(d)
Notice and Hearing. Within fourteen days
of entry of a guilty plea or return of a verdict, the State must serve notice
upon defendant of the intention to impose sentence pursuant to N.J.S.A.
2C:43-7.1(d). See also R. 3:21-4(f). The court may not impose a sentence
pursuant to N.J.S.A. 2C:43-7.1 unless the ground for the sentence has been
established at a hearing.
5. Sexual
Assault or Aggravated Criminal Sexual Contact Against Minors. N.J.S.A. 2C:44-3(g) requires that a defendant convicted of sexual
assault (N.J.S.A. 2C:14-2) or criminal sexual contact (N.J.S.A. 2C:14-3) be
sentenced to an extended term of imprisonment upon application of the
prosecutor, if the crime involved violence or the threat of violence and the
victim was sixteen years of age or less.
226
G. Fines
Authorized, or Required, by Law: Statutory Provisions
1. Human
Trafficking. N.J.S.A. 2C:13-8(d)
requires a fine not less than $25,000 for a first degree crime. N.J.S.A. 2C:13-
9(c)(1) requires a fine not less than $15,000 for a second degree crime.
2.
Assisting in Human Trafficking. N.J.S.A.
2C:13-9(c)(1) mandates a fine of at least $15,000.
3.
Commercial Sexual Abuse of a Minor. N.J.S.A.
2C:13-10(c) provides that a person who commits the offense of advertising
commercial sexual abuse of a minor, contrary to N.J.S.A. 2C:13- 10(b), shall be
ordered to pay a fine of at least $25,000, which shall be deposited in the
Human Trafficking Survivor's Assistance Fund.
4.
Pornography. N.J.S.A. 2C:14-9(c)
authorizes "a fine not to exceed $30,000" for a third degree
pornography offense.
H.
Restitution: Statutory Provisions
Human
Trafficking. N.J.S.A. 2C:13-8(e)(1) and
(2) require the court to award the victim restitution which is the greater of
(1) "the gross income or value to the defendant of the victim's labor or
services," or (2) "the value of the victim's labor or services as
determined by" law.
I.
Registrations, Penalties, Fees, Assessments, Reporting and Monitoring
Requirements, and Civil Commitment: Statutory Provisions
1.
Megan's Law Registration Requirements. N.J.S.A.
2C:7-1 to -23 sets forth registration and public notification requirements for
a person who committed a "sex offense." Pursuant to N.J.S.A.
2C:7-2(b), a sex offense includes the following crimes:
· Aggravated sexual
assault (N.J.S.A. 2C:14-2(a)); · Sexual assault
(N.J.S.A. 2C:14-1));
227
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3(a);
- · Kidnapping (N.J.S.A.
2C:13-1(c)(2));
- · Endangering the
welfare of a child by engaging in sexual conduct that would impair or
debauch the morals of the child (N.J.S.A. 2C:24-4(a));
- · Endangering the
welfare of a child (N.J.S.A. 2C:24-4(b) (3) or (4) or (5)(a));
- · Luring or enticing a
child (N.J.S.A. 2C:13-6);
- · Criminal sexual
contact of a minor (N.J.S.A. 2C:14-3(b);
- · Kidnapping (N.J.S.A.
2C:13-1);
- · Criminal restraint
(N.J.S.A. 2C:13-2);
- · False imprisonment
"if the victim is a minor and the offender is not the parent of the
victim" (N.J.S.A. 2C:13-3; and
- · Knowingly promoting
prostitution of a child (N.J.S.A. 2C:34-1(b)(3) or (4)).
Failure to comply with Megan's Law registration requirements is a third degree crime. N.J.S.A. 2C:7-2(d).
2. Megan's Law Penalties. N.J.S.A. 2C:14-10(a) provides that in addition to any other fine, fee, assessment or penalty authorized by Title 2C, a person convicted of a sex offense, as defined by N.J.S.A. 2C:7-2(b), "shall be assessed a penalty for each such offense not to exceed:"
· $2000 for a first degree crime;
· $1000 for a second degree crime;
· $750 for a third degree crime; and · $500 for a fourth degree crime.
228
3.
Assisting in Human Trafficking Business License Revocation.
N.J.S.A.
2C:13-9(c)(2) provides that "the court shall direct any issuing State,
county, or municipal governmental agency to revoke any license, permit,
certificate, approval, registration, charter, or similar form of business or
professional authorization required by law concerning the operation of that
person's business or profession, if that business or profession was used in the
course of the crime."
4.
Serological Testing. N.J.S.A. 2C:43-2.2(a)
requires a defendant convicted of aggravated sexual assault or sexual assault
(N.J.S.A. 2C:14-2) "submit to an approved serological test for acquired
immune deficiency syndrome (AIDS) or infection with the human immunodeficiency
virus (HIV) or any other related virus identified as a probable causative agent
of AIDS," upon request by the victim and prosecutor. The court may require
the defendant to pay the cost of the test. N.J.S.A. 2C:43-2.3(c).
5. Sexual
Assault Nurse Examiner Program Assessment. N.J.S.A. 2C:43-3.6(a) requires an $800 assessment for any sex
offense defined in N.J.S.A. 2C:7-2.
6.
Surcharge for Certain Sex Offenders. N.J.S.A.
2C:43-3.7 requires any person convicted of aggravated sexual assault (N.J.S.A.
2C:14-2(a)), sexual assault (N.J.S.A. 2C:14-2(b)), aggravated criminal sexual
contact (N.J.S.A. 2C:14-3(a)), or criminal sexual contact (N.J.S.A.
2C:14-3(b)), to pay a $100 surcharge to fund programs and grants for the
prevention of violence against women.
7.
Restricted Internet Access. N.J.S.A.
2C:43-6.6(a)(1) to (4) provides that any person who (1) committed a sex offense
as defined in N.J.S.A. 2C:7-2(b) and is required to register under Megan's Law
(N.J.S.A. 2C:7-2); or (2) is serving a special sentence of parole supervision
under N.J.S.A. 2C:43-6.4, or has been convicted of promoting or providing
obscene materials to a minor (N.J.S.A. 2C:34-3), "shall" be subject
to the following Internet access conditions "where the trier of fact makes
a finding that a computer or any other device with Internet capability was used
to facilitate the commission of the crime":
(1)
Prohibited access of "a computer or any other device with Internet
capability without the prior written approval of the court," with the
exception that a person on probation or parole "may use a computer or any
other device with Internet capability in connection with that person's
229
employment"
or to "search for employment with the prior approval of the person's
probation or parole officer"; and
(2)
"[P]eriodic unannounced examinations of the person's computer . . .
including the retrieval and copying of all data . . . and removal of such
information, equipment or device to conduct a more thorough inspection";
and
(3)
Installation, "at the person's expense, [of] one or more hardware or
software systems to monitor the Internet use"; and
(4)
"[A]ny other appropriate restrictions concerning the person's use or
access of a computer or any other device with Internet capability."
A
violation of the Internet access restrictions constitutes a fourth degree
crime. N.J.S.A. 2C:43-6.6(b).
8. Sex
Offender Restraining Order. N.J.S.A.
2C:44-8 authorizes the court to enter an order restraining a sex offender from
contact with the victim or the victim's family and from entering certain locations.
9.
Involuntary Civil Commitment Upon Completion of Sentence (the Sexually Violent
Predator Act). N.J.S.A. 30:4-27.24 to -
27.38 (the Sexually Violent Predator Act) provides for the civil commitment for
specialized treatment of sex offenders who "suffer from a mental
abnormality or personality disorder," which renders the person
"likely to engage in acts of sexual violence if not confined in a secure
facility for control, care and treatment." N.J.S.A. 30:4-27.26. The court
may impose commitment over the defendant's objection if it finds "by clear
and convincing evidence that the patient needs continued involuntary commitment
to treatment." N.J.S.A. 30:4-27.32(a).
10. The
Sex Offender Monitoring Act. N.J.S.A.
30:4-123.89 to 4-123.95 requires continuous satellite monitoring of sex
offenders after release from prison. N.J.S.A. 30:4-123.92. A violation of a
monitoring condition is a third degree crime. N.J.S.A. 30:4-123.94.
J. Sex
Offender Treatment: Statutory Provisions
230
1.
Statutory Authority for Sex Offender Treatment. Pursuant to N.J.S.A. 2C:47-1, a defendant convicted of any of the
following offenses, or an attempt to commit any of the following offenses, may
be eligible for sex offender treatment, so long as the court does not impose a
sentence of life imprisonment without the possibility of parole:
- · Aggravated sexual
assault (N.J.S.A. 2C:14-2(a));
- · Sexual assault
(N.J.S.A. 2C:14-2(b), (c));
- · Aggravated criminal
sexual contact (N.J.S.A. 2C:14-3);
- · Kidnapping (N.J.S.A.
2C:13-1(c)(2));
- · Endangering the
welfare of a child by engaging in sexual conduct (N.J.S.A. 2C:24-4(a)); or
- · Endangering the
welfare of a child by recording the child in a sex act (N.J.S.A.
2C:24-4(b)(4)).
2.
Psychological Examination. N.J.S.A.
2C:47-1 provides that if a defendant is eligible for sex offender treatment the
court must order the Department of Corrections to conduct a psychological
examination of the defendant to determine whether the defendant's conduct was
characterized by a pattern of repetitive, compulsive behavior and, if it was,
whether the defendant is amenable to sex offender treatment and is willing to
participate in the treatment. The Department of Corrections must conduct the
examination within thirty days. N.J.S.A. 2C:47-2.
3.
Judicial Findings Regarding the Psychological Examination.
If the
examination report concludes that the defendant's conduct was characterized by
a pattern of repetitive, compulsive behavior, and that the defendant is
amenable to sex offender treatment and is willing to participate in treatment,
then the court must state on the judgment of conviction whether it agrees with
these conclusions, and it must explain its basis for the findings. N.J.S.A.
2C:47-3(a).
4.
Circumstances That Require Sex Offender Treatment. The court shall sentence a defendant to sex offender treatment if:
(1) the psychological examination report concludes that the defendant's conduct
was characterized by a pattern of
231
repetitive,
compulsive behavior, and that the defendant is amenable to sex offender
treatment and is willing to participate in such treatment; (2) the Department
of Corrections recommends the defendant receive sex offender treatment; and (3)
the court makes its own findings that the defendant's conduct was characterized
by a pattern of repetitive, compulsive behavior, and that the defendant is
amenable to sex offender treatment and is willing to participate in such
treatment. N.J.S.A. 2C:47- 3(a) and (b).
(a)
Inpatient Treatment. The court shall
require the defendant to receive sex offender treatment at the Adult Diagnostic
and Treatment Center for sex offender (ADTC or Avenel) if the court imposes a
term of incarceration. N.J.S.A. 2C:47-3(b). If the term of incarceration is
seven years or less, the defendant shall be detained in the Adult Diagnostic
and Treatment Center, not in a prison. N.J.S.A. 2C:47-3(h)(1). If the sentence
is greater than seven years, or if the sentence includes a period of parole
ineligibility that is seven years or greater, the defendant shall be detained
in a facility designated by the Commissioner of the Department of Corrections
until the last five years of the sentence, at which time the defendant must be
transferred to the Adult Diagnostic and Treatment Center, so long as the
defendant still is amenable to sex offender treatment and is willing to comply
with treatment. N.J.S.A. 2C:47-3(h)(2) and (3).
(b)
Outpatient Treatment. If the court imposes
probation and sex offender treatment is warranted, the court shall require the
defendant to receive outpatient treatment as a condition of probation. N.J.S.A.
2C:47-3(b).
5. Cases
in Which the Court May Not Impose Sex Offender Treatment. The court shall not impose sex offender treatment if:
- · The defendant's
conduct was not repetitive and compulsive, N.J.S.A. 2C:47-3(d); or
- · The defendant is not
amenable to sex offender treatment, N.J.S.A. 2C:47-3(d); or
- · The defendant's
conduct was repetitive and compulsive and the defendant is amenable to sex
offender treatment, but
232
the
defendant is not willing to participate in sex offender treatment, N.J.S.A.
2C:47-3(f); or
· The court imposes a
term of life imprisonment without the possibility of parole. N.J.S.A.
2C:47-3(j).
6. Place
of Incarceration of a Defendant Who Is Unwilling to Participate in Sex Offender
Treatment. If the defendant's conduct
was repetitive and compulsive and the defendant is amenable to sex offender
treatment but unwilling to participate in sex offender treatment, then the
defendant shall be detained at a facility designated by the Commissioner.
(a)
Parole. After serving any mandatory
minimum term of imprisonment, the defendant shall be eligible for parole in
accordance with N.J.S.A. 2C:47-5. N.J.S.A. 2C:47-3(f).
(b)
Request for Transfer to Inpatient Treatment. On a biennial basis the defendant may request transfer to the
Adult Diagnostic and Treatment Center. N.J.S.A. 2C:47- 3(f). The Commissioner
shall grant the request if a psychological evaluation reveals that the
defendant is amenable to treatment and is willing to comply with its terms.
Ibid.
7.
Transfer Out of Inpatient Treatment. N.J.S.A.
2C:47-4.1(a) requires the Commissioner to transfer a defendant out of sex
offender treatment if the defendant is (1) serving a life sentence without the
possibility of parole, (2) not complying with the terms of treatment, or (3) no
longer amenable to treatment.
8.
Request for Return to Inpatient Treatment. On a biennial basis the defendant may request a transfer back to
the Adult Diagnostic and Treatment Center. N.J.S.A. 2C:47-4.1(b). If a
psychological examination concludes that the defendant is amenable to treatment
and is willing to cooperate with the terms of treatment, the Commissioner shall
grant the request. Ibid.
9.
Credits Conditioned Upon Compliance With Inpatient Treatment. The sentence shall not be reduced by good behavior or work credits
for any period that the defendant was not amenable to treatment, was unwilling
to comply with treatment, or was detained at a facility other than the Adult
Diagnostic and Treatment Center. N.J.S.A. 2C:47-3(d), (i), (g); N.J.S.A.
2C:47-4.1(c).
233
10.
Parole. A sex offender confined
under Chapter 47 may not be paroled unless a special classification review
board finds that the defendant has achieved a satisfactory level of progress in
sex offender treatment. N.J.S.A. 2C:47-5(a). Upon recommendation from the
special classification review board, the State Parole Board should release the
defendant unless it concludes, by a preponderance of the evidence, that the
defendant failed to cooperate in rehabilitation or that there is a reasonable
expectation that the defendant will violate conditions of parole. Ibid.
11.
Notice of a Defendant's Release After the Defendant Was Denied Parole. The Attorney General and local prosecutor must receive at least
ninety days' notice of the defendant's release and must be advised as to
whether the defendant may be "in need of involuntary commitment" or
may be a "sexually violent predator," as those terms are defined in
the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. N.J.S.A.
2C:47- 5(d). (The Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38,
provides for the civil commitment for specialized treatment of sex offenders
who "suffer from a mental abnormality or personality disorder," which
renders the person "likely to engage in acts of sexual violence if not
confined in a secure facility for control, care and treatment." N.J.S.A.
30:4- 27.26.)
12.
Parole Revocation and Psychological Examination. In the event a sex offender's parole is revoked, the Department of
Corrections shall, within ninety days of revocation, complete a psychological
examination of the offender to determine whether the parole violation
"reflects emotional or behavioral problems as a sex offender that cause
the offender to be incapable of making any acceptable social adjustment in the
community," and whether the offender is amenable to and willing to
participate in sex offender treatment. N.J.S.A. 2C:47-5.1(a).
(a)
Sentence to Inpatient Treatment. If the
report concludes that the parole violation "reflects emotional or
behavioral problems as a sex offender that cause the offender to be incapable
of making any acceptable social adjustment in the community and further reveals
that the offender is amenable to sex offender treatment and is willing to
participate in such treatment," then the defendant shall be confined in
the Adult Diagnostic and
234
Treatment
Center and shall be eligible for parole pursuant to N.J.S.A. 2C:47-5. N.J.S.A.
2C:47-5.1(b).
(b)
Sentence to a Facility Designated by the Commissioner (Unwillingness to
Comply). The defendant shall be
detained in a facility designated by the Commissioner if a
psychological
examination report concludes that defendant suffers from emotional or
behavioral problems as a sex offender that cause him or her to be incapable of
making any acceptable social adjustment in the community and that the defendant
is amenable to treatment but not willing to participate in sex offender
treatment. N.J.S.A. 2C:47-5.1(c). The defendant shall be eligible for parole in
accordance with N.J.S.A. 2C:47-5. N.J.S.A. 2C:47-5.1(c). However, the sentence
may not be reduced by work credits. N.J.S.A. 2C:47-5.1(e).
(c)
Sentence to a Facility Designated by the Commissioner (No Emotional or
Behavioral Problem as a Sex Offender). The
defendant shall be confined in a facility designated by the Commissioner if the
examination report concludes that the parole violation "does not reflect
emotional or behavioral problems as a sex offender." N.J.S.A. 2C:47-
5.1(d)(1)(a). The defendant shall be eligible for parole in accordance with
Title 30, but the parole eligibility date shall not be reduced by work or good
behavior credits. N.J.S.A. 2C:47-5.1(d)(2).
(d)
Sentence to a Facility Designated by the Commissioner (Not Amenable to
Treatment). The defendant shall be
confined in a facility designated by the Commissioner if the offender's parole
violation "reflects emotional or behavioral problems as a sex offender
that cause the offender to be incapable of making any acceptable social
adjustment in the community and further reveals that the offender is not
amenable to sex offender treatment." N.J.S.A. 2C:47-5.1(d)(1)(b). The
defendant shall be eligible for parole in accordance with Title 30, but the
parole eligibility date shall not be reduced by work or good behavior credit.
N.J.S.A. 2C:47-5.1(d)(2).
(e)
Request for Transfer to Inpatient Treatment. A defendant may request transfer to the Adult Diagnostic and
Treatment Center on a biennial basis. N.J.S.A. 2C:47- 5.1(f). If a
psychological evaluation reveals that the defendant is amenable to treatment
and is willing to comply
the
235
with
treatment, the Commissioner shall grant the request. Ibid. The defendant will
be eligible for parole pursuant to N.J.S.A. 2C:47-5, and will earn work and
good behavior credits. N.J.S.A. 2C:47-5.1(e).
K. Sex
Offender Sentencing: Case Law
1. Notice
and Plea Agreements. When a defendant
pleads guilty to a sex offense, the court must notify the defendant of the
parole consequences and potential sex offender treatment consequences of the
guilty plea, State v. Luckey, 366 N.J. Super. 79, 89-90 (App. Div. 2004), as
well as the requirement of parole supervision for life. State v. Jamgochian,
363 N.J. Super. 220, 224 (App. Div. 2003).
2. Plea
Agreements and Involuntary Confinement. In
negotiating a plea, the prosecutor may not bargain away the State's right to
seek, upon completion of sentence, involuntary civil commitment under the
Sexually Violent Predator Act. In re Commitment of P.C., 349 N.J. Super. 569,
572 (App. Div. 2002).
3. Sex
Crime Victims Treatment Penalty. The sex
offender penalty amounts listed in N.J.S.A. 2C:14-10(a) are the maximum
penalties the court may impose. State v. Bolvito, 217 N.J. 221, 224 (2014). In
fixing the penalty amount, the court should consider the nature of the offense
and the defendant's ability to pay. Id. at 233-35.
4.
Megan's Law Offenses. While Megan's Law
requires registration for "sex offenses," the N.J.S.A. 2C:7-2(b)
offenses that define a sex offense encompass more than just sex offenses; they
include non-sex crimes against children. In re T.T., 188 N.J. 321, 333 (2006).
5. Sex
Offender Treatment Examination and the Privilege Against Self-Incrimination. The court may delay the N.J.S.A. 2C:47-1 psychological exam for
sex offender treatment to protect the defendant's privilege against
self-incrimination. State v. Marrero, 239 N.J. Super. 119, 122-23 (Law Div.
1989). The privilege continues until the defendant has exhausted all direct
appellate remedies. Lewis v. Dep't of Corr., 365 N.J. Super. 503, 506 (App.
Div. 2004).
6. Good
Time Credits and the Privilege Against Self- Incrimination. A defendant has a liberty interest in good time
236
credits.
Bender v. N.J. Dep't of Corr., 356 N.J. Super. 432, 443-44 (App. Div. 2003).
Thus, good time credits cannot be denied when the defendant refuses to discuss
conduct pursuant to the privilege against self-incrimination. Id. at 444.
7.
"Repetitive" and "Compulsive" Behavior Defined. The Legislature did not define "repetitive" and
"compulsive" in N.J.S.A. 2C:47-1 to -10. State v. N.G., 381 N.J.
Super. 352, 361 (App. Div. 2005). Since they are words of common understanding,
they should be given their ordinary and well- understood meanings. Ibid.
"Repetitive" means "to do, experience, or produce again."
Ibid. "Compulsive" means "caused by obsession or compulsion,"
with "compulsion" meaning "an irresistible impulse to act
irrationally." Id. at 361-62.
(a)
Constitutionality. "Because these
definitions are not abstract and may be understood by a citizen of average
intelligence, the statute is not unconstitutionally vague." Id. at
362.
(b)
Thoughts as Behavior. "Repetitive"
and "compulsive" behavior is not limited to repetitive physical
sexual acts or physical urges, but includes psychological conduct and urges,
such as sexual fantasies or thoughts. State v. Hass, 237 N.J. Super. 79, 85-86
(Law Div. 1988) (finding repetitive and compulsive behavior based on thought
patterns).
8.
Setting the Length of the Sentence. In
sentencing a sex offender the court must weigh the aggravating and mitigating
factors and may impose a period of parole ineligibility, an extended term, and
consecutive terms. Gerald v. Comm'r, N.J. Dep't of Corr., 102 N.J. 435, 438
(1986); State v. Chapman, 95 N.J. 582, 593 (1984). The court must impose a
fixed term of years to the Adult Diagnostic Treatment Center. State v. Dittmar,
188 N.J. Super. 364, 366-67 (App. Div. 1982), certif. denied, 97 N.J. 678
(1984).
9. Sex
Offender Treatment Required Only at the Adult Diagnostic Treatment Center. Pursuant to N.J.S.A. 2C:47-3(k), the Commissioner is not required
to provide for the treatment of a sex offender who is not incarcerated in the
Adult Diagnostic Treatment Center. In re Civil Commitment of W.X.C., 407 N.J.
Super. 619, 636-38 (App. Div.), aff'd on other grounds, 204 N.J. 179 (2010),
cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).
However, the defendant may qualify for
237
mental
health treatment pursuant to Department of Corrections regulations. Ibid.
10.
Transfer to the Adult Diagnostic Treatment Center. In order to transfer an offender to the ADTC, the Commissioner
must show that: (1) the offender's conduct was characterized by a pattern of
repetitive and compulsive behavior; (2) the offender is amenable to treatment;
and (3) the offender is willing to participate in the treatment. Williams v.
N.J. Dep't of Corr., 423 N.J. Super. 176, 182-86 (App. Div. 2011). "[T]he
Commissioner does not have the discretion [under N.J.S.A. 30:4- 91.2] to assign
offenders to the ADTC whom the Legislature has determined should not be treated
there." See also W.B. v. N.J. Dep't of Corr., 434 N.J. Super. 340, 347-48
(App. Div. 2014) (holding that the Williams rationale applies to an inmate
convicted in another state and transferred to a New Jersey prison).
11.
Liberty Interest and Sex Offender Treatment. "[T]he actions of the trial court in sentencing the defendant
to Avenel implicate a liberty interest," which "arise[s] from the
expectation that ADTC parole standards and rehabilitative procedures will not
be applied absent a finding of 'repetitive' and 'compulsive behavior.'"
State v. Howard, 110 N.J. 113, 127- 29 (1988) (quoting N.J.S.A. 2C:47-3(a)).
Additionally, the liberty interest arises from the stigma created by
classification as a repetitive and compulsive sex offender. Id. at 129.
12. Delay
in Sex Offender Treatment and Cruel and Unusual Punishment. A nine-month delay in transferring a sex offender to the Adult
Diagnostic Treatment Center, during which time the defendant was incarcerated
in county jail, did not constitute cruel and unusual punishment. State v.
Howard, 110 N.J. 113, 132-33 (1988).
13.
Judicial Findings and Sex Offender Treatment. The prerequisite findings resulting in commitment to the Adult
Diagnostic Treatment Center are made by a judge by a preponderance of the evidence.
State v. Howard, 110 N.J. 113, 131 (1988); State v. Luckey, 366 N.J. Super. 79,
90-91 (App. Div. 2004).
14.
Concurrent Terms and Sex Offender Treatment. When a defendant receives concurrent sentences to prison and the
Adult Diagnostic Treatment Center, and the prison sentence is longer
238
than the
ADTC sentence, the defendant may be transferred to prison to serve the
remainder of the sentence after completion of the ADTC term. State v. Chapman,
95 N.J. 582, 592 (1984).
15.
Consecutive Terms and Sex Offender Treatment. The Code permits a sex offender to be sentenced to consecutive
ADTC and prison terms for sex- and non-sex related offenses arising from one
incident. State v. Chapman, 95 N.J. 582, 592 (1984).
16.
Presumption of Imprisonment. When the
N.J.S.A. 2C:47-1 examination report recommends probation with outpatient
treatment for a first or second degree offense, the court must consider that
recommendation in light of the presumption of imprisonment applicable to first
and second degree crimes. State v. Hamm, 207 N.J. Super. 40, 44-45 (App. Div.
1986).
17.
Parole Ineligibility. The parole
disqualifier set forth in N.J.S.A. 2C:14-6 (applicable to a second or
subsequent conviction for sexual assault or aggravated criminal sexual contact)
applies to defendants sentenced to jail terms and to sex offender treatment.
State v. Chapman, 95 N.J. 582, 588-89 (1984).
18. NERA
and Sexual Assault. NERA applies to a
sexual assault conviction under N.J.S.A. 2C:14-2(b) or (c)(1). State v. Drake,
444 N.J. Super. 265, 283, certif. denied, 226 N.J. 213 (2016).
19.
Megan's Law, Civil Regulatory Scheme. The
Megan's Law registration and notification requirements create a civil
regulatory scheme that does not amount to punishment. Doe v. Poritz, 142 N.J.
1, 73 (1995).
20.
Megan's Law Constitutionality. Our
Court has generally upheld as constitutional the Megan's Law registration and
notification requirements. Doe v. Poritz, 142 N.J. 1, 73-111 (1995). See also
In re C.A., 146 N.J. 71, 80-110 (1996) (discussing Attorney General guidelines
on community notification and due process).
21. Sex
Offender Monitoring Act (SOMA), Penal in Nature. While the Legislature likely intended to create a civil,
regulatory scheme in passing the SOMA, it created a form of punishment similar
to parole. Riley v. N.J. State Parole Bd., 219 N.J. 270, 294-97 (2014)
(comparing SOMA to the civil regulatory scheme of Megan's Law).
239
22. Sex
Offender Monitoring Act (SOMA), Ex Post Facto. Because the SOMA monitoring provisions are penal, the Ex Post
Facto Clauses of the New Jersey and United States Constitutions prohibit their
application to a sex offender who completed his or her sentence prior to the
adoption of the SOMA. Riley v. N.J. State Parole Bd., 219 N.J. 270, 297
(2014).
23.
Parole Supervision for Life and Ex Post Facto Concerns.
Parole
supervision for life (PSL) is a harsher sentence than community supervision for
life (CSL) (the sentence in effect until 2003 when the Legislature replaced it
with parole supervision for life). L. 2003, c. 267, § 1. State v. Perez, 220
N.J. 423, 436-42 (2015). Unlike CSL, PSL mandates an extended term without the
possibility of parole if the defendant has committed an offense listed in
N.J.S.A. 2C:43-6.4(e). State v. Perez, 220 N.J. 423, 442 (2015). Because the
consequences of PSL are harsher than those of CSL, a defendant who commits an
offense listed in N.J.S.A. 2C:43-6.4(e) while serving CSL may not be sentenced
to an extended term without the possibility of parole (the sentence required if
the defendant committed the offense while on PSL). State v. Perez, 220 N.J.
423, 442 (2015). See also State v. Hester, ___ N.J. Super. ___, ___ (2017)
(slip. op. at 3) ("the commission of the predicate crime, for which
defendants received the special sentence of CSL, is the operative 'crime' for
determining whether the 2014 amended law violates the Ex Post Facto
Clauses.").
24.
Parole Supervision for Life and Double Jeopardy. Parole supervision for life is a penal consequence; thus, if the
court omitted it from a sentence, double jeopardy protections preclude it from
being added after the defendant has completed the sentence. State v. Schubert,
212 N.J. 295, 305-08 (2012).
25.
Parole Supervision for Life and Guilty Pleas. Defense counsel must advise the defendant that a guilty plea will
result in parole supervision for life, as the term is penal. State v. Smullen,
437 N.J. Super. 102, 110 (App. Div. 2014). Defense counsel's failure to do so
may form the basis of an ineffective assistance of counsel claim. Ibid.
26.
Parole Supervision for Life, Vagueness and Separation of Powers. Because N.J.S.A. 2C:43-6.4(b) provides sufficient notice of
illegal conduct, it is not unconstitutionally vague and does not violate the
separation of powers doctrine. State v. Bond, 365 N.J. Super. 430, 438-43 (App.
Div. 2003).
240
27.
Constitutionality of Internet Restrictions. Restrictions on access to the internet does not, on its face,
violate the Federal and State constitutional rights to free speech, free
association, and due process of law. J.B. v. N.J. Parole Bd., 433 N.J. Super.
327, 344 (App. Div. 2013) (J.B. I), certif. denied, 217 N.J. 296 (2014).
However, an offender has due process rights to challenge the restrictions. J.I.
v. N.J. Parole Bd., ___ N.J. ___, ___ (2017) (slip op. at 43-47). The
restrictions must be "reasonably tailored to advance the goals of
rehabilitation or public safety." Id. at ___ (slip op. at 41). "The
parole authorities do not have unbridled discretion to impose unnecessary or
oppressive Internet conditions that do not advance a rational penological
policy." Id. at ___ (slip op. at 42).
28.
Constitutionality of Polygraph Examinations. The Parole Board may use "'instant offense' and 'maintenance'
polygraph examinations for therapeutic purposes in the treatment of sex
offenders on PSL [parole supervision for life] or CSL [community supervision
for life]. The Parole Board may also use the substantive assertions made by
such polygraphed offenders for both therapeutic and evidential purposes."
J.B. v. N.J. State Parole Bd., 444 N.J. Super. 115, 157 (App. Div.), certif.
granted, 226 N.J. 213-14 (2016) (J.B. II). It may not use "technical
polygraph results in any evidential manner when making decisions to penalize
PSL or CSL offenders or to curtail their activities." Ibid.
241
XVI. JAIL AND GAP-TIME CREDITS
A
defendant is entitled to receive credit for any time served in jail between
arrest and the time of sentencing (see sections A and C). This is known as
"jail credit." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988)
(Richardson II). A defendant is also entitled to receive credit against a
subsequent sentence for time spent incarcerated on a prior sentence (see
sections B and D). This is known as "gap-time credit." Id. at
242.
A. Jail
Credit: Court Rules and Statutory Provisions
1. Court
Rule Authorizing Jail Credit. Rule
3:21-8 provides: "The defendant shall receive credit on the term of a
custodial sentence for any time served in custody in jail or in a state
hospital between arrest and the imposition of sentence."
2. Jail
Credits Included in the Judgment of Conviction. Rule 3:21-5(b) requires the court include in the judgment of
conviction a statement of the jail credits awarded to the defendant.
3. Jail
Credit Explained to the Defendant. N.J.S.A.
2C:43- 2(f)(2) instructs the court to explain to the defendant the jail credits
that apply to the sentence.
B. Gap-Time
Credit: Statutory Provisions
Statutory
Authority for Gap-Time Credit. N.J.S.A.
2C:44-5(b)(2) provides that when a defendant, previously sentenced to imprisonment,
is subsequently sentenced to another term for an offense committed prior to the
former sentence (other than for an offense committed while in custody), the
defendant shall be credited with time served on the prior sentence "in
determining the permissible aggregate length of the term or terms remaining to
be served." These gap-time credits apply regardless of whether the court
imposes concurrent or consecutive terms. N.J.S.A. 2C:44-5(b)(2).
242
C. Jail
Credit: Case Law
1.
Policy. "Jail credits were
conceived as a matter of equal protection or fundamental fairness and a means
of avoiding the double punishment that would result if no such credits were
granted." State v. Hernandez, 208 N.J. 24, 36 (2011). Jail credits
eliminate disparate treatment to poor and presumably innocent persons who
cannot make bail. Ibid.
2. Jail
Credits Are Mandatory. The court
must award jail credits for time served in custody prior to sentencing. State
v. Hernandez, 208 N.J. 24, 37 (2011).
3.
Credits Explained. A sentencing judge
should give a statement of reasons explaining the basis for an award of jail
credits, particularly when the issue is in dispute. State v. Alevras, 213 N.J.
Super. 331, 339 (App. Div. 1986).
4.
Day-for-Day Award. Jail credits are
"day-for-day" credits, subtracted from the front end of the sentence.
Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif.
denied, 186 N.J. 606 (2006). "The practical effect of that allocation is
that jail credits will 'reduce a[] [parole] ineligibility term as well as the
sentence imposed.'" State v. Hernandez, 208 N.J. 24, 37 (2011) (quoting
State v. Mastapeter, 290 N.J. Super. 56, 64, (App. Div.), certif. denied, 146
N.J. 569 (1996)). This approach is different from the one used to compute gap-time
credits. State v. Hernandez, 208 N.J. 24, 38 (2011). Gap-time credits are
subtracted from the back end of a sentence; thus, they do not reduce a parole
ineligibility period. Id. at 38-39.
5.
Credits Are Based on Time Incarcerated. An
award of jail credit is not dependent upon the date the State files a formal
accusation or indictment, but rather, is based on the time spent confined while
serving no valid sentence. State v. Garland, 226 N.J. Super. 356, 362 (App.
Div.), certif. denied, 114 N.J. 288 (1988).
6. Jail
Credit and Commutation Credit. For a
discussion of jail credits in relation to commutation credits awarded during
incarceration, see Buncie v. Dep't of Corr., 382 N.J. Super. 214, 218 (App.
Div. 2005), certif. denied, 186 N.J. 606 (2006).
243
7.
"Custody" Defined. Custody
under Rule 3:21-8 signifies an involuntary confinement imposed by the court in
a penal or medical facility. State v. Towey, 114 N.J. 69, 86 (1989).
(a)
Violations of Drug Court and Probation. Special
probation pursuant to Track One of Drug Court is custodial for purposes of the
jail credit rule because a defendant who leaves the facility without
authorization is subject to prosecution for escape. State v. Stalter, 440 N.J.
Super. 548, 554 (App. Div.), certif. denied, 223 N.J. 355 (2015). Id. at 556.
The same is not true for a defendant who violates a term of regular probation
under Track Two of Drug Court. Id. at 555. Generally, probation is not
custodial for purposes of jail credit. Ibid.; State v. Evers, 368 N.J. Super. 159,
172-73 (App. Div. 2004).
(b) Bail
Release. A defendant is not entitled
to jail credit for time spent released on bail. State in the Interest of I.C.,
447 N.J. Super. 247, 255 (App. Div. 2016); State v. Boykins, 447 N.J. Super.
213, 220 (App. Div. 2016), certif. denied, ___ N.J. ___ (2017).
(c)
Voluntary Admission to a Hospital. Voluntary
confinement in a psychiatric hospital is not custodial for purposes of jail
credit, even if the confinement is a condition of bail. State v. Towey, 114
N.J. 69, 85-86 (1989).
(d) Sex
Offender Diagnostic Treatment Center. Confinement
in a diagnostic treatment center for sex offenders is custodial for purposes of
jail credits. State v. Lee, 60 N.J. 53, 58 (1972).
(e)
Religious Convent. Time spent in a
religious convent awaiting trial need not be credited where the restrictions on
liberty are not so severe as to be the equivalent of jail or a state hospital,
even if residence at the covenant was a condition of bail. State v. Mirakaj, 268
N.J. Super. 48, 52-53 (App. Div. 1993).
(f)
Electronic Monitoring Program. A
defendant is not entitled to jail credit for time spent participating in an
electronic monitoring wristlet program as a condition of pretrial release.
State v. Mastapeter, 290 N.J. Super. 56, 62-63 (App. Div.), certif. denied, 146
N.J. 569 (1996).
244
(g)
Intensive Supervision Program. Participation
in the Intensive Supervision Program (ISP) is not custodial for purposes of
computing jail credit. State v. Adams, 436 N.J. Super. 106, 113-15, certif.
denied, 220 N.J. 101 (2014).
(h)
Juvenile Community Home Program. Placement
in a juvenile community home program as a condition of probation is not
custodial for purposes of determining jail credits. State in the Interest of
I.C., 447 N.J. Super. 247, 258 (App. Div. 2016).
(i)
Juvenile Intensive Supervision Program. The
Juvenile Intensive Supervision Program is not the equivalent of detention;
thus, jail credits may not be awarded for time spent in the program. State in
the Interest of I.C., 447 N.J. Super. 247, 258 (App. Div. 2016).
8.
Multiple New Jersey Charges. When a
defendant is facing (1) charges in more than one county, (2) multiple charges
in more than one indictment, or (3) multiple charges in one indictment for
crimes committed during multiple criminal episodes, the defendant is entitled
to receive jail credit against each sentence for the time he or she was
detained or arrested until the time that the first sentence is imposed. State
v. Hernandez, 208 N.J. 24, 47-48 (2011); State v. Rippy, 431 N.J. Super. 338,
353-54 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). This holding is
different from prior decisions that limited jail credits to the particular
offense for which confinement was directly attributed. State v. Hernandez, 208
N.J. 24, 43 (2011) (discussing State v. Black, 153 N.J. 438, 456 (1998)).
9.
Consecutive Terms and Multiple Indictments. Where the defendant was convicted of charges in two separate
indictments and, at a joint sentencing hearing, the court orders the sentences
for the crimes charged in indictment one to run consecutive to the sentence for
crimes charged in indictment two, jail credits apply to the front end of the
aggregate term. State v. C.H., ___ N.J. ___, ___ (2017) (slip op. at 20-21). To
award jail credits against the sentence resulting from indictment one and the
sentence resulting from indictment two would provide a defendant a "double
award." Id. at ___ (slip op. at 22-23).
245
10.
Confinement in Another Jurisdiction. A
defendant is entitled to jail credit for time incarcerated in a foreign
jurisdiction only if the incarceration was due solely to the New Jersey charge.
State v. Joe, ___ N.J. ___, ___ (2017) (slip op. at 20); State v. Hemphill, 391
N.J. Super. 67, 71 (App. Div. 2007); State v. Beatty, 128 N.J. Super. 488,
490-91 (App. Div. 1974).
11.
Offense Committed While Released on Bail. Where a defendant is arrested for a crime, is released on bail, is
arrested on unrelated charges, and serves 155 days in jail before pleading
guilty to the first crime (in exchange for dismissal of the charges on the
second offense), the defendant is entitled to receive 155 days jail credit
against the sentence on the first crime. State v. Rawls, 219 N.J. 185, 197-98
(2014) (applying the holding in State v. Hernandez, 208 N.J. 24, 47-48
(2011)).
12.
Probation Violation. Serving an
incarcerated defendant with a violation of probation (VOP) statement of charges
for a first, second, third or fourth degree offense is the equivalent of arresting
the defendant for purposes of jail credits, and thus "triggers the award
of jail credits for the period of pre- adjudication confinement against the VOP
sentence and the sentence for the new offense." State v. DiAngelo, 434
N.J. Super. 443, 461 (App. Div. 2014). Jail credits accrue as of the date the
statement of charges was issued and apply to any custodial term imposed for the
VOP and the offense committed while on probation. Id. at 447, 462 (extending
the holding in State v. Hernandez, 208 N.J. 24, 47-48 (2011), to VOP
cases).
13.
Reversal of a Conviction on Appeal. When
a defendant is incarcerated awaiting retrial after successfully challenging a
conviction, and the defendant is not serving time for any other valid
conviction, the court must award jail credit for time spent incarceration from
the date of reversal to the date of resentencing. State v. Rippy, 431 N.J.
Super. 338, 350-51 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). North
Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S. Ct. 2072, 2077, 23 L. Ed. 2d
656, 665-66 (1969); State v. DeRosa, 332 N.J. Super. 426, 433-35 (App. Div.
2000). The defendant is also entitled to day- for-day credit for the time
served on the reversed conviction (commonly called prior service credit). North
Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S. Ct. 2072, 2077, 23 L. Ed. 2d
656, 666 (1969); State v. Sanders, 107 N.J. 609, 621 (1987); State v. Rippy,
431 N.J. Super. 338, 355 (App. Div. 2013),
246
certif.
denied, 217 N.J. 284 (2014). For additional discussion of prior service credit,
see Chapter XVIII, Direct Appeal by a Defendant.
14. State
Appeal of Jail Credits. "[T]he
State may appeal an award of jail credits on the ground that they are not
authorized by Rule 3:21-8." State v. Rippy, 431 N.J. Super. 338, 343 (App.
Div. 2013), certif. denied, 217 N.J. 284 (2014).
15.
Incarceration as a Condition of Probation. Time spent in jail awaiting sentencing must be applied to reduce a
term of imprisonment imposed as a condition of probation. State v. Carlough,
183 N.J. Super. 234, 235-36 (App. Div. 1982).
16.
Intensive Supervision Program Violation. A defendant who committed a crime while participating in the
Intensive Supervision Program (N.J.S.A. 2C:43-11) is entitled to jail credits
for any time between the date of arrest and either the date of sentencing for
the offense or the date of sentencing for the violation of the Intensive
Supervision Program. State v. Adams, 436 N.J. Super. 106, 113-15, certif.
denied, 220 N.J. 101 (2014).
D. Gap-Time
Credit: Case Law
1.
Gap-Time Credit Described. "The
credit awarded under N.J.S.A. 2C:44-5(b) is referred to as 'gap-time credit'
because it awards a defendant who is given two separate sentences on two
different dates credit toward the second sentence for the time spent in custody
since he or she began serving the first sentence." State v. Hernandez, 208
N.J. 24, 38 (2011). The "credits apply towards the defendant's aggregate
sentence, which is calculated as the length of the defendant's longest term
when he or she is ordered to serve multiple sentences concurrently and is equal
to the sum of all terms when he or she is ordered to serve multiple sentences
consecutively." Ibid. (internal quotations omitted).
2.
Gap-Time Credits Reduce the "Back End" of a Sentence.
"Unlike
jail credits, gap-time credits are applied to the 'back end' of a
sentence." State v. Hernandez, 208 N.J. 24, 38 (2011). If the court did
not impose a parole ineligibility term, "gap-time credits will advance the
date on which a defendant first becomes eligible for parole." State v.
Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013) (quoting State v.
247
Hernandez,
208 N.J. 24, 38-39 (2011)), certif. denied, 217 N.J. 284 (2014). While the rule
may result in a windfall to defendants in some cases, the gap-time statute
provides a uniform, bright-line rule that avoids the need to explain any delay
or the parties' motives. State v. Franklin, 175 N.J. 456, 463-64 (2003).
3. Policy
of Gap-Time Credit. Gap-time credits
counteract any dilatory tactics of the prosecutor in pursuing a conviction of
an earlier offense after the defendant has been sentenced on another offense.
State v. Hernandez, 208 N.J. 24, 37-38 (2011). The purpose is to avoid
manipulation of trial dates to the disadvantage of defendants and to put
defendants in the same position as if the two offenses had been tried at the
same time. State v. Franklin, 175 N.J. 456, 462 (2003); State v. Carreker, 172
N.J. 100, 105 (2002). Additionally, the gap-time statute is intended to limit
the accumulation of consecutive sentences. State v. L.H., 206 N.J. 528, 546
(2011) (Rivera-Soto, J., concurring with the per curiam decision and quoting
Richardson v. Nickolopoulos, 110 N.J. 241, 243 (1988) (Richardson II) and
Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994)).
4.
Gap-Time Credits Are Mandatory. If the
three elements of the gap-time statute are met (i.e., the defendant has been
sentenced to prison, the defendant is subsequently sentenced to another prison
term, and the subsequent sentence is for an offense that occurred prior to the
imposition of the first sentence and not while in custody) then the court must
award gap-time credits for the time the defendant spent incarcerated from
imposition of the first sentence until imposition of the subsequent sentence.
State v. Franklin, 175 N.J. 456, 462 (2003); State v. Carreker, 172 N.J. 100,
105 (2002). "The only exceptions have been cases in which . . . there was
little or no risk of manipulation by the prosecutor." State v. L.H., 206
N.J. 528, 532 (2011) (Long, J., concurring with the per curiam decision denying
the defendant gap-time credit and explaining that "manipulation by the
prosecutor was a veritable impossibility" because DNA testing that was not
available until ten years after the crime showed that L.H.'s DNA matched DNA
from the crime).
5. Jail
Credit Is No Substitute for Gap-Time Credit. "[W]here gap-time credits are applicable, the judge has no
discretion to award jail credits instead." State v. Rippy, 431 N.J. Super.
338 (App. Div. 2013) (citing to State v. Hernandez, 208 N.J. 24, 48-49 (2011)),
certif. denied, 217 N.J. 284 (2014). See also
248
State v.
Edwards, 263 N.J. Super. 256, 258 (App. Div. 1993) (explaining that gap-time
credits include only the period of incarceration between imposition of the
first and second sentence, not time spent in jail pending imposition of the
earlier sentence).
6.
Consecutive Terms. Gap-time credits
"reduce the aggregate of consecutive sentences" and concurrent
sentences. Booker v. N.J. State Parole Bd., 136 N.J. 257, 266 (1994).
7. Parole
Ineligibility Period Unaffected by Gap-Time Credit.
Gap-time
credits do not reduce a parole bar. State v. Hernandez, 208 N.J. 24, 39 (2011);
Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994). This rule applies to
the 85% period of parole ineligibility mandated by the No Early Release Act
(NERA). State v. Hernandez, 208 N.J. 24, 38-39 (2011); Meyer v. N.J. State
Parole Bd., 345 N.J. Super. 424, 429-30 (App. Div. 2001), certif. denied, 171
N.J. 339 (2002).
Equal Protection. This rule may result in similarly situated defendants reaching
parole eligibility dates at different times. Richardson v. Nickolopoulos, 110
N.J. 241, 250-52 (1988) (Richardson II). But the rule does not violate a
defendant's equal protection rights. Lorenzo v. Edmiston, 705 F. Supp. 209, 215
(D.N.J.), aff'd, 882 F.2d 511 (3d Cir. 1989).
8. First
Sentence Complete. The plain language of
the gap- time statute (N.J.S.A. 2C:44-5(b)(2)) does not require "that [a]
defendant be serving the original sentence when the later sentence is
imposed." State v. L.H., 206 N.J. 528, 530-31 (Long, J., concurring). The
majority of decisions have held that gap-time credit applies even when the
defendant has completed the first sentence. State v. L.H., 206 N.J. 528, 530-
31 (Long, J., concurring and referring to State v. Lawlor, 222 N.J. Super. 241,
245 (App. Div. 1988), State v. Ruiz, 355 N.J. Super. 237, 242 (Law Div. 2002),
and State v. French, 313 N.J. Super. 457, 463 n.7 (Law Div. 1997)). But see
State v. Garland, 226 N.J. Super. 356, 361 (App. Div. 1988) (stating in dictum
that gap-time credit "relates to time spent in imprisonment as a result of
a sentence previously imposed and has no application unless defendant, while
incarcerated, is sentenced for an offense occurring before the prior
sentence").
9.
Violation of Probation. A
defendant is entitled to gap- time credit when the offense for which sentence
is imposed was a
249
violation
of probation that the defendant committed prior to the imposition of sentence
on another violation of probation. State v. Ogletree, 435 N.J. Super. 11, 15-16
(App. Div.), certif. denied, 220 N.J. 40 (2014); State v. Guaman, 271 N.J.
Super. 130, 131 (App. Div. 1994).
10.
Violation of Parole. A defendant is
entitled to gap-time credit for the period served in custody following an
arrest for a violation of parole until sentencing on the original underlying
offense. State v. Franklin, 175 N.J. 456, 471-72 (2003). However, the defendant
may not receive gap-time credit for any new offense committed while on parole.
Ibid.; State v. Hunt, 272 N.J. Super. 182, 185 (App. Div.), certif. denied, 137
N.J. 307 (1994).
11.
Non-Indictable Offenses. Gap-time
credit may be awarded for time served in State prison as a result of a sentence
imposed by a municipal court on non-indictable offenses. State v. French, 313
N.J. Super. 457, 463-67 (Law Div. 1997).
12.
Incarceration Due to a Motor Vehicle Violation. Gap-time credit applies when the first incarceration was the
result of a Title 39 driving while intoxicated violation. State v. Walters, 445
N.J. Super. 596, 600-02 (App. Div. 2016), ___ certif. denied, ___ (2017). The
incarceration need not be the result of a Title 2 crime to entitle the
defendant to a gap-time credit award. Ibid.
13.
Actual Incarceration. Gap-time credits are
not due where the defendant commits the second offense prior to the start of
the defendant's actual incarceration. State v. Hall, 206 N.J. Super. 547,
550-51 (App. Div. 1985) (denying credit where the defendant committed the
second offense while on bail during the pendency of an appeal challenging the
conviction for the first offense).
14.
Sentences in Foreign Jurisdictions. The
gap-time provision does not apply to time served on a foreign sentence because
the gap-time statute is directed at New Jersey sentencing authorities who have
no jurisdiction to aggregate out-of-state sentences. State v. Carreker, 172
N.J. 100, 114 (2002). Further, the Interstate Agreement on Detainers protects
defendants serving out-of-state sentences from prosecutorial delay. Ibid.
250
15. Young
Adult Offender. When a young adult offender
is sentenced to an indeterminate term pursuant to N.J.S.A. 2C:43-5, gap-time credit
will reduce the maximum length of the aggregate indeterminate term. Mitnaul v.
N.J. Parole Bd., 280 N.J. Super. 164, 166 (App. Div. 1995).
16.
Credits Determined by the Court. As with
other types of sentencing credits, gap-time credits must be awarded by the
court at sentencing. The Parole Board is not responsible for awarding these
credits; it computes the parole eligibility date on the basis of the reduced
aggregate sentence. Booker v. N.J. State Parole Bd., 136 N.J. 257, 265-66
(1994).
251
XVII. MOTION
TO CHANGE A SENTENCE
Within
sixty days of the judgment of conviction the defendant may request the
sentencing court to change the sentence imposed. After the sixty-day period has
expired, the defendant may file a motion to change a sentence for limited
reasons. Section A discusses court rules regarding a motion to change a
sentence, and section B discusses relevant case law.
A. Motion
to Change a Sentence: Court Rules
1. Court
Rule Authorizing a Motion to Change a Sentence Within Sixty Days. Rule 3:21-10(a) provides that "a motion to reduce or change a
sentence shall be filed not later than 60 days after the date of the judgment
of conviction. The court may reduce or change a sentence, either on motion or
on its own initiative, by order entered within 75 days from the date of the
judgment of conviction and not thereafter."
2. Court
Rule Authorizing a Motion to Change a Sentence at Any Time. Rule 3:21-10(b) provides that the trial court may hear a motion at
any time to:
(1)
Permit entry of an incarcerated defendant "into a custodial or
non-custodial treatment or rehabilitation program for drug or alcohol
abuse";
(2)
Permit the release of an incarcerated defendant "because of illness or
infirmity of the defendant";
(3)
Change a sentence "for good cause shown upon the joint application of the
defendant and prosecuting attorney";
(4)
Change a sentence "as authorized by the Code of Criminal
Justice";
(5) Correct
a sentence "not authorized by law";
(6)
Permit an incarcerated defendant to enter the Intensive Supervision Program
(N.J.S.A. 2C:43-11); or
252
(7)
Change or reduce "a sentence when a prior conviction has been reversed on
appeal or vacated by collateral attack."
Hearing
Generally Not Required. The court
need not hold a hearing on a motion to change a sentence pursuant to Rule
3:21-10(b) unless the "interest of justice" requires otherwise. R.
3:21-10(c). If the court holds a hearing, the defendant need not be present. R.
3:16(b).
3.
Pending Appeal Does Not Preclude a Motion to Change a Sentence. Upon notice to the Appellate Division, the trial court may
consider a motion to change a sentence while an appeal is pending. R.
3:21-10(d).
4.
Sentence Changes Must Be Placed on the Record. "All changes of sentence shall be made in open court upon
notice to the defendant and the prosecutor. An appropriate order setting forth
the revised sentence and specifying the change made and the reasons therefor
shall be entered on the record." R. 3:21- 10(c).
B. Motion
to Change a Sentence: Case Law
1. Double
Jeopardy. Rule 3:21-10(b) authorizes
a change in sentence "at any time." The Rule does not negate,
however, the double jeopardy prohibition against adding a punitive term to a
sentence that the defendant has completed. State v. Schubert, 212 N.J. 295, 309-10
(2012).
2.
Transfer to a Drug or Alcohol Treatment Program. To obtain transfer to a treatment program pursuant to Rule
3:21-10(b)(1), the defendant must establish present addiction. State v. Davis,
68 N.J. 69, 85-86 (1975). The court must then determine whether the purposes of
a custodial sentence "outweigh the interests sought to be served by
transfer to" a treatment program. Ibid. Accord State v. McKinney, 140 N.J.
Super. 160, 163 (App. Div. 1976); State v. Williams, 139 N.J. Super. 290, 299
(App. Div. 1976), aff'd o.b., 75 N.J. 1 (1977). The court should consider:
"(a) the involved crime, its seriousness and attendant circumstances; (b)
defendant's prior record -- criminal and addictive; (c) potential threat posed
to society by defendant's release; (d) the bona fides of the application; (e)
the likelihood or probability of successful treatment; (f) prior treatment
record, and (g) the failure or success of prior
253
treatment."
State v. Williams, 139 N.J. Super. 290, 299-300 (App. Div. 1976), aff'd o.b.,
75 N.J. 1 (1977).
(a)
Minimum Terms and Transfer to a Treatment Program.
The court
may not consider a request to transfer to a drug or alcohol treatment facility
prior to the expiration of a parole ineligibility term mandated by statute, but
the court may consider an application prior to the expiration of a parole
ineligibility term that was imposed at the sentencing court's discretion. State
v. Brown, 384 N.J. Super. 191, 194-96 (App. Div. 2006); State v. Mendel, 212
N.J. Super. 110, 113 (App. Div. 1986).
(b)
Violation of Terms of a Treatment Program. If after transfer to a noncustodial treatment center the defendant
violates a term of treatment, the court may reinstate the original sentence.
State v. Williams, 299 N.J. Super. 264, 270 (App. Div. 1997).
3.
Changed Circumstances. To obtain
a transfer to a drug or alcohol treatment program pursuant to Rule
3:21-10(b)(1), or to obtain a change in sentence due to illness pursuant to
Rule 3:21-10(b)(2), the defendant must show that there has been a change in
circumstances since the date of sentencing. State v. Kent, 212 N.J. Super. 635,
641 (App. Div.), certif. denied, 107 N.J. 65 (1986).
4. Change
Authorized by the Code. Rule
3:21-10(b)(4), which allows a change of sentence "as authorized by the
Code," does not apply where the Legislature creates a new offense with a
more lenient sentence provision than the one the defendant was sentenced under.
State v. James, 343 N.J. Super. 143, 147-48 (App. Div. 2001).
254
XVIII. DIRECT
APPEAL BY A DEFENDANT
A
criminal defendant may challenge the sentence on direct appeal (see sections A
and D). Claims fall into two general categories: those that challenge the
sentence as excessive and those that challenge the sentence as illegal (see
sections B and C). If the defendant succeeds on appeal, principles of double
jeopardy prohibit a court from imposing a harsher sentence on remand than the
court initially imposed, unless the defendant had no expectation of finality in
the initial sentence (see section E).
A. Direct
Appeal by a Defendant of a Sentence: Court Rules and Statutory Provisions
1. Court
Rule Authorizing Direct Appeal by a Criminal Defendant. Rule 2:3-2 provides: "In any criminal action, any defendant,
the defendant's legal representative, or other person aggrieved by the final
judgment of conviction entered by the Superior Court, including a judgment
imposing a suspended sentence, . . . may appeal or, where appropriate, seek
leave to appeal, to the appropriate appellate court."
2.
Statutory Authority for the Appellate Division to Hear Appeals. N.J.S.A. 2C:44-7 vests the appellate courts with authority to
review "[a]ny action taken by the court in imposing sentence."
"The [appellate] court shall specifically have the authority to review
findings of fact by the sentencing court in support of its finding of
aggravating and mitigating circumstances and to modify the defendant's sentence
upon his [or her] application where such findings are not fairly supported on
the record." N.J.S.A. 2C:44-7.
3. Court
Rule Regarding Remand and Original Jurisdiction.
Rule
2:10-3 provides: "If a judgment of conviction is reversed for error in or
for excessiveness or leniency of the sentence, the appellate court may impose
such sentence as should have been imposed or may remand the matter to the trial
court for proper sentencing."
255
B.
Excessive Sentence Challenges: Case Law
Excessive
Sentence Challenges Described. An
excessive sentence claim challenges the harshness of a sentence that is
"within the range permitted by the verdict or plea." State v. Hess,
207 N.J. 123, 145 (2011). An excessive sentence challenge must be asserted on
direct appeal; it will not be heard in a post- conviction relief petition.
Ibid.
C.
Illegal Sentence Challenges: Case Law
1.
Illegal Sentence Challenges Described. "There
are two categories of illegal sentences: (1) those that exceed the penalties
authorized by statute for a particular offense and (2) those that are not in
accordance with the law, or stated differently, those that include a
disposition that is not authorized by our criminal code." State v. Schubert,
212 N.J. 295, 308 (2012) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)).
Accord State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162
N.J. 240, 247 (2000)). An illegal sentence may be corrected at any time. State
v. Tavares, 286 N.J. Super. 610, 619 (App. Div.), certif. denied, 144 N.J. 376
(1996). A challenge that attacks the court's exercise of discretion does not
fall within the illegal-sentence category and must be asserted on direct
appeal. State v. Ellis, 346 N.J. Super. 583, 588 (App. Div.), aff'd o.b., 174
N.J. 535, 536 (2002).
2. Time
in Which to File an Illegal Sentence Challenge. A defendant may file a petition to correct an illegal sentence at
any time before the defendant completes the sentence. R. 3:21- 10(b)(5); State
v. Schubert, 212 N.J. 295, 313 (2012); State v. Crawford, 379 N.J. Super. 250,
257 (App. Div. 2005).
3.
Illegal Sentence May Not Be Ignored. "[A]
reviewing court is not free to ignore an illegal sentence." State v.
Moore, 377 N.J. Super. 445 (App. Div. 2005). "[S]o long as the issue of
defendant's sentence is properly before the court, the court may correct an
illegal sentence, even by increasing the term." State v. Kirk, 243 N.J.
Super. 636, 643 (App. Div. 1990). Accord State v. Tavares, 286 N.J. Super. 610,
619 (App. Div.), certif. denied, 144 N.J. 376 (1996).
256
4. Merger
Is a Matter of Legality. Failure
to merge offenses results in an illegal sentence. State v. Romero, 191 N.J. 59,
80 (2007).
5.
Legality of Sentence Based on an Unclear Verdict. Where the facts support a conviction for a third and second degree
offense, and the verdict does not state which one the jury convicted the
defendant of violating, it is a question of legality whether the court erred in
imposing sentence for a second degree crime. State v. Eure, 304 N.J. Super.
469, 473 (App. Div.), certif. denied, 152 N.J. 193 (1997).
6.
Illegal Sentence Based on Considerations Beyond the Code.
A
sentence based on a fact unrelated to the Code's sentencing criteria is
illegal. State v. Wilson, 206 N.J. Super. 182, 184 (App. Div. 1985) (finding
illegal a sentence based "entirely" on the defendant's failure to
appear at the sentencing hearing).
7. Failure
to Provide a Rationale Does Not Make the Term Illegal. The court's failure to provide its rationale for a sentence does
not render the sentence illegal. State v. Acevedo, 205 N.J. 40, 45-47
(2011).
8. A Plea
Agreement May Not Provide for an Illegal Sentence.
The court
may not enforce a plea agreement that results in an illegal sentence. State v.
Manzie, 335 N.J. Super. 267, 278 (App. Div. 2000); State v. Nemeth, 214 N.J.
Super. 324, 327 (App. Div. 1986).
9. Lack
of Factual Basis for a Plea Does Not Make a Sentence Illegal. "As long as a guilty plea is knowing and voluntary, . . . a
court's failure to elicit a factual basis for the plea is not necessarily of
constitutional dimension and thus does not render illegal a sentence imposed
without such a basis. A factual basis is constitutionally required only when
there are indicia, such as a contemporaneous claim of innocence, that the
defendant does not understand enough about the nature of the law as it applies
to the facts of the case to make a truly 'voluntary' decision on his [or her]
own." State v. Mitchell, 126 N.J. 565, 577-78 (1992).
10.
Failure to Advise a Sex Offender of a Parole Consequence Does Not Render a
Sentence Illegal. Failure to inform a
sex offender of the parole consequences of a sentence to the Adult
257
Diagnostic
and Treatment Center does not result in an illegal sentence. State v. Lark, 117
N.J. 331, 341 (1989).
11. An
Indeterminate Term Is Generally Illegal. "Except for young adult offenders, who may be sentenced to an
indeterminate term, N.J.S.A. 2C:43-5, and except for sentences of life
imprisonment, Chapters 43 and 44 [of Title 2C] require that a specific term of
years be fixed for custodial sentences." State v. Dittmar, 188 N.J. Super.
364, 366-67 (App. Div. 1982). Thus, a sentence that requires sex offender
treatment at the Adult Diagnostic and Treatment Center "for an
indeterminate term not to exceed ten years" is an illegal sentence. Id. at
365.
12. Lawful
and Unlawful Basis for a Sentence. If the
court imposed an extended term on two alternative grounds, the extended term
will not be vacated on appeal so long as one basis was lawful. State v. Guzman,
313 N.J. Super. 363, 384-85 (App. Div.), certif. denied, 156 N.J. 424 (1998)
(affirming an extended term based on the court's discretionary authority, even
though the sentencing court erred in finding that the Graves Act mandated an
extended term).
13. Order
in Which Sentences Must Be Served Is Not a Matter of Legality. "Although specification that the less restrictive sentence be
served prior to the more restrictive sentence is not illegal, it may, on a
particular occasion, constitute an abuse of discretion." State v. Ellis,
346 N.J. Super. 583, 597 (App. Div.), aff'd o.b., 174 N.J. 535, 536 (2002)
(noting that "[i]n a very real sense, directing that a less restrictive
sentence be served prior to the more restrictive sentence is akin to the
discretionary imposition of an additional period of parole ineligibility").
14.
Consecutive Term Challenges Do Not Relate to Legality of the Sentence. The claim that consecutive sentences are inconsistent with the
Yarbough guidelines is a challenge to the court's exercise of discretion, not
to the legality of the sentences. State v. Ellis, 346 N.J. Super. 583, 596
(App. Div.), aff'd o.b., 174 N.J. 535, 536 (2002).
15.
Sentence for a Violation of Probation May Be Illegal. A sentence that does not comply with the requirements set forth in
Baylass and Molina, is a sentence not authorized by law. State v. Ervin, 241
N.J. Super. 458, 474-75 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990).
See State v. Molina, 114 N.J. 181, 182-83 (1989), and State v. Baylass, 114
N.J. 169, 170-71 (1989)
258
(holding
that when resentencing after a violation of probation (VOP), the court may not
consider the VOP as an aggravating factor, but rather, must assess how the VOP
affects the weight accorded to the mitigating factors identified at the initial
sentencing hearing).
16.
Denial of Gap-Time Credits Renders a Sentence Illegal.
Challenges
to gap-time credits "pertain to the legality of the sentence
imposed." State v. Shabazz, 263 N.J. Super. 246, 251 (App. Div.), certif.
denied, 133 N.J. 444 (1993).
17.
Conflict of Interest Is Not a Matter of Sentence Legality.
"[A]
potential conflict of interest by a defense attorney does not affect the
legality of a sentence." State v. Murray, 162 N.J. 240, 243 (2000).
18.
Creation of a New Offense Does Not Render Illegal the Sentence Imposed. Where the Legislature creates a new offense similar to the one
that the defendant violated, but with a more lenient sentence, the defendant's
harsher sentence is not rendered illegal. State v. James, 343 N.J. Super. 143,
147-48 (App. Div. 2001).
19.
Enhanced DWI Sentence Based on a Prior Uncounseled Guilty Plea Is Erroneous,
But Not Illegal. Under State
constitutional law, and "[i]n the context of repeat DWI offenses, . . .
the enhanced administrative penalties and fines may constitutionally be imposed
but . . . the actual period of incarceration imposed may not exceed that for
any counseled DWI convictions." State v. Hrycak, 184 N.J. 351, 362 (2005)
(quoting and reaffirming State v. Laurick, 120 N.J. 1, 16, cert. denied, 498
U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990); State v. Thomas, 401 N.J.
Super. 180, 184 (Law Div. 2007). An enhanced jail term based on an uncounseled
prior conviction is not an illegal sentence, however. State v. Bringhurst, 401
N.J. Super. 421, 431 (App. Div. 2008).
20. A
Sentence Is Illegal if Based on an Erroneous Predicate Finding. Where the court errs in imposing a sentence that does not comply
with the statutory mandates for a repeat DWI offender, a later court sentencing
on a subsequent drunk driving offense must consider the sentence that the prior
court should have imposed, not the erroneous sentence that the court actually
imposed. State v. Nicolai, 287 N.J. Super. 528, 531-32 (App. Div. 1996). To
find otherwise would result in another illegal sentence. Ibid.
259
21. Cruel
and Unusual Punishment. The
Eighth Amendment of the United States Constitution circumscribes the criminal
process in three ways: "it limits the kind of punishment that may be
imposed on those convicted of crimes, . . . proscribes punishment that is
grossly disproportionate to the severity of the crime," and "imposes
substantive limits on what may be made criminal and punished as such."
Ingraham v. Wright, 430 U.S. 651, 667, 97 S. Ct. 1401, 1410, 51 L. Ed. 2d 711,
727-28 (1977).
22. Cruel
and Unusual Punishment, Federal Gross Disproportionality Test. In determining whether a sentence for a term of years violates the
Eighth Amendment, the United States Supreme Court has "not established a
clear or consistent path for courts to follow." Lockyer v. Andrade, 538
U.S. 63, 72, 123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144, 155 (2003). However, the
one governing legal principle has been that a "gross
disproportionality" standard applies to such a sentence. 538 U.S. at 72,
123 S. Ct. at 1173, 155 L. Ed. 2d at 156. But see Harmelin v. Michigan, 501
U.S. 957, 965, 111 S. Ct. 2680, 2686, 115 L. Ed. 2d 836, 846 (1991) (Scalia,
J., with Rehnquist, C.J., joining) (stating that the Eighth Amendment contains
no proportionality guarantee).
Factors
Relating to Gross Disproportionality. The
Court has "exhibit[ed] a lack of clarity regarding what factors may
indicate gross disproportionality." Lockyer v. Andrade, 538 U.S. at 72,
123 S. Ct. at 1173, 155 L. Ed. 2d at 156. In Solem v. Helm, 463 U.S. 277,
290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637, 649-50 (1983), the Court
proposed a three-prong analysis that requires a court to compare: (1) the
gravity of the offense committed to the sentence imposed; (2) the sentence
imposed to those imposed for similar offenses in the same jurisdiction; and (3)
the sentence imposed to those imposed for similar offenses in other
jurisdictions. But see Harmelin v. Michigan, 501 U.S. at 1005, 111 S. Ct. at
2707, 115 L. Ed. 2d at 871-72 (Kennedy, J., with O'Connor, J., and Souter,
J.J., joining) (stating that only the second and third Solem factors need be
applied, and only in the rare case when there may be a gross disproportionality
between the crime committed and the sentence imposed); Ewing v. California, 538
U.S. 11, 23-24, 123 S. Ct. 1179, 1186-87, 155 L. Ed. 2d 108, 119 (2003)
(plurality opinion) (applying the proportionality principles distilled in
Justice Kennedy's concurrence in
260
Harmelin
to a sentence imposed under a state's "Three Strikes" law).
24. Cruel
and Unusual Punishment, New Jersey Three-Part Test.
New
Jersey courts consider the following three factors in assessing a claim of
cruel and unusual punishment: "first, whether the punishment conforms with
contemporary standards of decency; second, whether the punishment is grossly
disproportionate to the offense; and third, whether the punishment goes beyond
what is necessary to accomplish any legitimate penological objective."
State v. Johnson, 166 N.J. 523, 548 (2001) (citing State v. Maldonado, 137 N.J.
536, 556-57 (1994)).
D.
Standards Relating to Direct Appeal of a Sentence: Case Law
1.
Standard of Review. In reviewing a
sentence, the appellate court must make sure the lower court followed the
sentencing guidelines and made findings consistent with the evidence. State v.
Roth, 95 N.J. 334, 363-65 (1984). The reviewing court should defer to the
sentencing court's factual findings and should not "second-guess"
them. State v. Case, 220 N.J. 49, 65 (2014); State v. Gerstofer, 191 N.J.
Super. 542, 545 (App. Div. 1983) (holding that the appellate court defers to
the trial court's findings of fact regardless of which party files the appeal),
certif. denied, 96 N.J. 310 (1984). If the sentencing court "follow[ed]
the Code and the basic precepts that channel sentencing discretion," the
reviewing court should affirm the sentence, so long as the sentence does not
"shock the judicial conscience." State v. Case, 220 N.J. 49, 65
(2014). Accord State v. Lawless, 214 N.J. 594, 606 (2013); State v. Cassady, 198
N.J. 165, 180 (2009); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S.
1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Roth, 95 N.J. 334,
363-65 (1984).
2.
Aggregate Term. A reviewing court may find
that while the sentence on each count standing alone was justified, the
aggregate term of incarceration shocks the judicial conscience and requires a
reversal. State v. Candelaria, 311 N.J. Super. 437, 454-55 (App. Div.), certif.
denied, 155 N.J. 587 (1998) (finding that an extended term of life imprisonment
with a twenty-five-year parole disqualifier and six consecutive terms was
excessive in the aggregate).
261
3.
Real-Time Consequences and Parole Ineligibility. In reviewing a sentence, the court should consider the real-time
consequence of a parole disqualifier. State v. Lee, 411 N.J. Super. 349, 351
(App. Div. 2010).
4.
Original Jurisdiction. The
appellate court's jurisdiction to review sentences includes the power to make
new findings of fact, to reach independent determinations of the facts, and to
supplement the record on appeal. State v. Jarbath, 114 N.J. 394, 412 (1989); R.
2:10-3. However, the court should "frugally" exercise this power and
must explain its reason for doing so and its basis for the newly imposed sentence.
State v. Jarbath, 114 N.J. 394, 412 (1989).
5. Remand
Is Preferred. "[T]he exercise of
appellate original jurisdiction over sentencing should not occur regularly or
routinely; . . . a remand to the trial court for resentencing is strongly to be
preferred." State v. Jarbath, 114 N.J. 394, 411 (1989). Accord State v.
Thomas, 195 N.J. 431, 437 (2008); State v. Abrams, 256 N.J. Super. 390, 403-04
(App. Div.), certif. denied, 130 N.J. 395 (1992). When "a remand will work
an injustice by continuing" the defendant's incarceration, then it is
appropriate for an appellate court to exercise original jurisdiction and
resentence the defendant. State v. L.V., 410 N.J. Super. 90, 113 (App. Div.
2009), certif. denied, 201 N.J. 156 (2010).
6.
Absence of a Verbatim Record. The absence
of a verbatim sentencing transcript does not, by itself, prohibit meaningful
appellate review or require a remand for reconstruction of the record. State v.
Vasquez, 265 N.J. Super. 528, 561 (App. Div.), certif. denied, 134 N.J. 480
(1993).
7. Challenge
to the Factual Basis of a Plea on Direct Appeal.
"Challenges
to the sufficiency of the factual basis for a guilty plea are most commonly
brought by way of a motion to the trial court to withdraw that plea."
State v. Urbina, 221 N.J. 509, 527 (2015). However, "a
defendant may also challenge the sufficiency of the factual basis for his
guilty plea on direct appeal." Id. at 527-28.
8.
Rejected Pleas Are Irrelevant in Sentencing. "[T]he pre- trial plea proposal offered to, and rejected by, [a]
defendant does not impugn the post-trial sentences. Rejected plea offers may
not be considered as a factor in determining whether a
262
sentence
is excessive." State v. Pennington, 154 N.J. 344, 362- 63 (1998).
9. Appeal
by a Co-Defendant.
(a) The
Law-of-the-Case Doctrine. Where a
co-defendant files a separate appeal first, the law-of-the-case doctrine does
not preclude the appellate panel from hearing the second appeal. State v.
K.P.S., 221 N.J. 266, 270 (2015). The doctrine "was not intended to deny a
defendant the opportunity to be heard on his separate appeal, even if the
co-defendant unsuccessfully raised the same issue on the same record."
Ibid.
(b)
Real-Time Consequences and Disparity Claim. In considering a co-defendant's claim that the court imposed disparate
sentences, the reviewing court must consider the real-time consequences of the
sentences. State v. Bessix, 309 N.J. Super. 126, 130-31 (App. Div. 1998); State
v. Salentre, 275 N.J. Super. 410, 425 (App. Div.), certif. denied, 138 N.J. 269
(1994).
(c)
Unequal Sentences Among Co-Defendants. When
a comparison of co-defendant's sentences reveals "grievous
inequities," the greater sentence may be deemed excessive. State v. Roach,
167 N.J. 565, 570 (2001) (Roach II); State v. Hicks, 54 N.J. 390, 391-92
(1969). A disparate sentence based solely on the reason that the defendants did
not deserve similar sentences, even though the defendants were similar for
sentencing purposes, is insufficient to justify disparate terms. State v.
Roach, 146 N.J. 208, 232-33, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136
L. Ed. 2d 424 (1996).
(d)
Cooperation of One Defendant. A
co-defendant's cooperation with law enforcement may explain a sentencing
disparity. State v. Williams, 317 N.J. Super. 149, 159 (App. Div. 1998),
certif. denied, 157 N.J. 647 (1999); State v. Gonzalez, 223 N.J. Super. 377,
393 (App. Div.), certif. denied, 111 N.J. 589 (1988).
10.
Conditional Plea. When a defendant
enters a guilty plea and intends to appeal an issue, other than a search and
seizure issue, the defendant must enter a conditional plea with the court's
approval and consent of the prosecutor. State v. Benjamin, 442 N.J. Super. 258,
263 (App. Div. 2015) (explaining
263
that
"[o]rdinarily, the failure to enter a conditional plea would bar appellate
review of other than search and seizure issues"), affirmed as modified,
___ N.J. ___ (2017). If the defendant failed to enter a conditional plea, the
court may hear the appeal to avoid an injustice. Id. at 263-64.
E. Double
Jeopardy Concerns on Remand: Case Law
1. Double
Jeopardy General Rule. "The
double jeopardy provisions of both the United States and New Jersey
Constitutions protect against a second prosecution for the same offense after
acquittal, against a second prosecution for the same offense after conviction,
and against multiple punishments for the same offense." State v.
Eigenmann, 280 N.J. Super. 331, 336-37 (App. Div. 1995); United States v.
DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340
(1980). See also N.J.S.A. 2C:1-9 to -12. For purposes of sentencing, double
jeopardy generally "attaches once a defendant begins to serve a prison
term or the sentence is partially executed." State v. Young, 379 N.J.
Super. 498, 505 (App. Div. 2005), (referring to State v. Ryan, 86 N.J. 1
(1981), remanded on other grounds, 188 N.J. 349 (2006)).
2. No
Expectation of Finality Rule. Double
jeopardy does not prohibit a court from imposing a harsher sentence on remand
when the defendant did not have an expectation of finality in the sentence
originally imposed. State v. Roth, 95 N.J. 334, 344 (1984) (adopting the test
in United States v. DiFrancesco, 449 U.S. 117, 133, 101 S. Ct. 426, 435, 66 L.
Ed. 2d 328, 343 (1980)). Accord State v. Sanders, 107 N.J. 609, 18-20 (1987);
State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005), remanded on other
grounds, 188 N.J. 349 (2006).
3.
Examples of No Expectation of Finality. The
following cases discuss situations in which the defendant does not have an
expectation of finality in the sentence:
(a)
Appeal of Conviction and Sentence. "[A]
defendant who appeals his substantive conviction along with the corresponding
sentence has no legitimate expectation of finality in either the underlying
conviction or the corresponding sentence." State v. Haliski, 140 N.J. 1,
21 (1995).
264
(b)
State's Right to Appeal. A
defendant cannot expect a sentence to be final when pronounced if the State has
a statutory right to appeal the sentence, as in the case of a term imposed
pursuant to N.J.S.A. 2C:44-1(f)(2) (downgrading and lenient sentences). State
v. Sanders, 107 N.J. 609, 619 (1987). If the State succeeds on appeal of a
downgraded sentence, the court on remand may impose a sentence one degree
higher than originally imposed without offending double jeopardy principles.
Ibid.
(c)
Illegal Sentence. "An illegal
sentence that has not been completely served may be corrected at any time
without impinging upon double-jeopardy principles." State v. Austin, 335
N.J. Super. 486, 494 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). A
sentence that does not include a parole ineligibility term mandated by statute
is an illegal sentence. Ibid. (finding error in a Graves Act sentence that did
not include a mandatory parole ineligibility term). Accord State v. Robinson, 253
N.J. Super. 346, 358-59 (App. Div.), certif. denied, 130 N.J. 6 (1992).
(d) State
Appeal of a Judgment Notwithstanding the Verdict. A defendant has no expectation of finality in the sentence imposed
when the State appeals the entry of judgment notwithstanding the verdict
pursuant to Rule 2:3-1(b)(3). State v. Cetnar, 341 N.J. Super. 257, 265 (App.
Div.), certif. denied, 170 N.J. 89 (2001).
4.
Harsher Sentence on Remand. The court
may not impose a "substantially harsher" sentence on remand if the
increased sentence is not required by law or is not supported by "any
evidence of intervening conduct or prior oversight to justify the new
sentence." State v. Heisler, 192 N.J. Super. 586, 592- 93 (App. Div.
1984). Accord State v. Pindale, 279 N.J. Super. 123, 128-30 (App. Div.)
(discussing North Carolina v. Pearce, 395 U.S. 711, 723, 89 S. Ct. 2072, 2079,
23 L. Ed. 2d 656, 668 (1969)), certif. denied, 142 N.J. 449 (1995)). To hold
otherwise would effectively penalize a defendant for successfully challenging an
illegal sentence. State v. Heisler, 192 N.J. Super. 586, 593 (App. Div. 1984).
See also State v. Eigenmann, 280 N.J. Super. 331, 341 (App. Div. 1995) (holding
that the court could not increase the part of a sentence based on a lawful,
though mistaken, declaration that the defendant was a young adult offender, as
that part of the sentence was not illegal). The court must specifically explain
its rationale for
265
imposing
a harsher sentence. State v. Pindale, 279 N.J. Super. 123, 129-30 (App. Div.),
certif. denied, 142 N.J. 449 (1995).
5. Credits Due
After a Successful Appel.
Prior
Service Credit. When a court reverses a
conviction for which the defendant endured imprisonment, the Fifth Amendment
prohibition against double jeopardy requires a court to award the defendant
day-for-day credit against the new sentence for the time served on the reversed
conviction. North Carolina v. Pearce, 395 U.S. 711, 718- 19, 89 S. Ct. 2072,
2077, 23 L. Ed. 2d 656, 665-66 (1969). This is commonly called prior service credit.
State v. Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013), certif. denied, 217
N.J. 284 (2014). Like jail credit, prior service credit is subtracted from the
front end of a sentence. Id. at 355. Denial of prior service credit would
effectively and erroneously penalize a defendant for exercising the State
constitutional right to appeal. State v. DeRosa, 332 N.J. Super. 426, 432 (App.
Div. 2000); Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 72 (App. Div.
1998).
Jail
Credits. If the defendant remained
incarcerated after successfully challenging a conviction, and was not serving
time for any other valid conviction, then the defendant must be awarded jail
credit for time served between reversal of the conviction and imposition of a
new sentence. State v. Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013),
certif. denied, 217 N.J. 284 (2014). See Chapter XVI for further discuss on
jail credits.
Gap-Time
Credits. If the defendant served
time on a successfully challenged conviction, and during that term of
incarceration had charges pending for another offense (second offense) that was
committed prior to imposition of the sentence that was later reversed, then the
defendant would receive against the sentence for the second offense gap-time
credit for time served on the reversed conviction. State v. Rippy, 431 N.J.
Super. 338, 351 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). See
Chapter XVI for further discuss on gap-time credits.
6.
Ineligibility. Because "the basic sentencing issue is always the real time defendant must serve," on resentencing the court
Ineligibility. Because "the basic sentencing issue is always the real time defendant must serve," on resentencing the court
Restructuring
the Sentence on Remand and Parole
266
may not
restructure a sentence to impose a greater period of parole ineligibility than
it imposed in the initial sentence. State v. Cooper, 402 N.J. Super. 110,
116-17 (App. Div. 2008) (quoting State v. Mosley, 335 N.J. Super. 144, 157
(App. Div. 2000), certif. denied, 167 N.J. 633, 772 (2001)). See also State v.
Towey (II), 244 N.J. Super. 582, 598 (App. Div.) (explaining that where a
defendant successfully challenges only the excessiveness of a parole
disqualifier, the court on remand may not increase the base term), certif.
denied, 122 N.J. 159 (1990).
7.
Unmerged Offenses and the Aggregate Term. Where an appellate court finds that the sentencing court
erroneously merged offenses, the court on remand may impose consecutive terms
on the unmerged convictions, so long as the new sentence, in the aggregate,
does not exceed the original aggregate term. State v. Crouch, 225 N.J. Super.
100, 107-08 (App. Div. 1988). But see State v. Loftin, 287 N.J. Super. 76, 113
(App. Div.) (explaining that the defendant might face a longer aggregate term
on remand because the sentencing court had erroneously merged a first degree
robbery conviction into a murder conviction, and on remand, the court had to
impose sentence for the robbery conviction), certif. denied, 144 N.J. 175
(1996).
8. Merger
and Reversal of the Greater Offense. "Because
merger does not extinguish the merged offense, it follows that if the conviction
on the greater offense is reversed and defendant is not retried on that
offense, the State may request the trial court to unmerge the prior conviction
of defendant on the lesser offense and proceed to sentence thereon." State
v. Becheam, 399 N.J. Super. 268, 275 (Law Div. 2007). Accord State v.
Harrington, 310 N.J. Super. 272, 280-81 (App. Div.), certif. denied, 156 N.J.
387 (1998). This principle also applies where the State retries the defendant
on the greater offense and the jury acquits the defendant of that offense.
State v. Becheam, 399 N.J. Super. 268, 275-76 (Law Div. 2007).
9.
Considerations at Resentencing. Unless
the remand order specifies otherwise, the trial court should consider the
defendant as he or she stands on the day of resentencing. State v. Jaffe, 220
N.J. 114, 116 (2014); State v. Randolph, 210 N.J. 330, 354 (2012). Thus, the
court may consider an updated presentence report, a current institutional
report if the defendant is in custody, and any changed circumstances that
occurred between the time of the initial sentencing and the resentencing. State
v. Randolph, 210 N.J. 330, 354 (2012);
267
State v.
Tavares, 286 N.J. Super. 610, 616 (App. Div.), certif. denied, 144 N.J. 376
(1996).
10. A
Completed Sentence May Not Be Increased. The court may not add a punitive term to a sentence that the
defendant has completed, even if the punitive term was mandated by statute and
absence of it rendered the sentence illegal. State v. Schubert, 212 N.J. 295,
311-12 (2012) (holding that the court could not correct a sentence that did not
include community supervision for life by imposing that term on a defendant who
had completed his sentence, even though the Violent Predator Incapacitation
Act, N.J.S.A. 2C:43-6.4, required that term be included in a sentence).
11.
Restitution. A restitution award may be
increased on resentencing without offending double jeopardy principles. State
v. Rhoda, 206 N.J. Super. 584, 590 (App. Div.), certif. denied, 105 N.J. 524
(1986).
12.
Discrepancy Between the Sentencing Transcript and Judgment of Conviction. Where a defendant challenges a judgment of conviction as including
a period of parole ineligibility that the sentencing court did not verbally
impose at the sentencing hearing, the matter may be remanded without offending
principles of double jeopardy to correct the judgment if "the record
sufficiently indicates an expression of" the sentencing court's
"intent to have imposed a discretionary parole ineligibility term at the
time of sentencing." State v. Womack, 206 N.J. Super. 564, 571 (App. Div.
1985), certif. denied, 103 N.J. 482 (1986).
268
XIX. APPEAL
BY THE STATE IN CRIMINAL CASES
Double
jeopardy principles restrict the State's ability to challenge a defendant's
sentence (see sections C and D). The State may file an appeal of a sentence in
limited situations set forth in court rules and statutes (see sections A and
B). If the State successfully challenges a sentence, double jeopardy principles
will likely prohibit a court from imposing a harsher sentence on remand than
the court initially imposed, unless the defendant had no expectation of
finality in the initial sentence (see section D).
A. Appeal
by the State: Court Rules
1. Court
Rule Regarding State Appeals in a Criminal Case.
Rule
2:3-1(b) authorizes the State to file an appeal "to the appropriate
appellate court from" the following:
(1) A
judgment "dismiss[ing] an indictment, accusation or complaint, where not
precluded by the constitution of the United States or of New
Jersey";
(2) A
pretrial order entered in accordance with Rule 3:5 (search warrants);
(3) A
judgment of acquittal pursuant to Rule 3:18-2 following a guilty verdict;
(4)
"[A] judgment in a post-conviction proceeding collaterally attacking a
conviction or sentence";
(5)
"[A]n interlocutory order entered before, during or after trial";
or
(6) "[A]s
otherwise provided by law."
2. Court
Rule Authorizing Appeals to the Supreme Court. Rule 2:3-1(a) provides that the State may appeal "to the
Supreme Court from a final judgment or from an order of the Appellate Division,
pursuant to Rule 2:2-2 (b) [appeals the Supreme Court from interlocutory
orders] or 2:2-3 [appeals to the Appellate Division from final
judgments]."
269
B. Appeal
by the State: Statutory Provisions
1. Statutes Authorizing Appeal by the State. The following
1. Statutes Authorizing Appeal by the State. The following
statutes grant the State permission to appeal a
sentence.
(a) Booby
Traps in the Manufacturing or Distribution of Drugs. N.J.S.A. 2C:35-4.1(e) provides that if the court does not require
the sentence for booby traps in the manufacturing or distribution of drugs to
be served consecutive to a sentence for any drug offense in Chapter 35, or a conspiracy
or attempt to commit an offense under Chapter 35, then the State may appeal the
sentence within ten days.
(b)
Manufacturing, Distributing or Dispensing a Controlled Dangerous Substance on
or Near School Property. N.J.S.A.
2C:35-7(b)(2)(b) provides that within ten days the State may appeal the
sentence for manufacturing, distributing or dispensing drugs on school property
if the court did not impose a period of parole ineligibility pursuant to
N.J.S.A. 2C:35-7(b)(1). See Chapter XIV on drug offender sentencing for further
discussion.
(c)
Violation of Special Probation in a Drug Case, or Drug Court. Where the defendant commits a second or subsequent violation of
special probation, the prosecutor may appeal the court's decision to (i)
continue special probation, N.J.S.A. 2C:35-14(f)(2); or (ii) impose a brief
period of imprisonment followed by continued special probation, N.J.S.A.
2C:35-14(g). See Chapter XIV on drug offender sentencing for further
discussion.
(d)
Non-Residential Treatment for Certain Drug Offenders.
N.J.S.A.
2C:35-14(j) provides that if the court finds that a defendant qualifies for
residential drug treatment, the court may impose a term of non-residential
treatment under certain circumstances. If the prosecutor objects to the sentence,
the sentence shall not become final for ten days to permit the State to file an
appeal. Ibid. See Chapter XIV on drug offender sentencing for further
discussion.
(e)
Mandatory Special Probation for Certain Drug Offenders. If the court imposes a sentence of regular probation instead of
special probation on certain drug
270
dependent
defendants, the sentence shall not be final for ten days to allow the
prosecutor time to file an appeal. N.J.S.A. 2C:35-14.2(d). See Chapter XIV on
drug offender sentencing for further discussion.
(f)
Public Officers Convicted of Certain Crimes. N.J.S.A. 2C:43-6.5(c)(3) allows the State ten days to appeal a
sentence imposed on certain public officers if the court did not include a
period of parole ineligibility or if the court imposed a reduced period of
parole ineligibility pursuant to N.J.S.A. 2C:43-6.5(c)(1) or (2).
(g)
Downgraded or Lenient Sentence for a First or Second Degree Crime. Pursuant to N.J.S.A. 2C:44-1(f)(2), the State may challenge a
sentence for a first or second degree crime if the court imposed a term
appropriate for one degree lower than the conviction, or if it imposed a
noncustodial or probationary sentence. The State has ten days to file the
appeal. N.J.S.A. 2C:44-1(f)(2).
Stay
Pending Appeal. Unless the defendant elects
to begin a downgraded or lenient sentence imposed pursuant to N.J.S.A.
2C:44-1(f)(2) while the State's appeal is pending, "execution of sentence
shall be stayed," and the court shall set bail. R. 2:9-3(d). If the defendant
waives the stay pending appeal, and on remand the court imposes a harsher
sentence, the defendant may not challenge the new sentence on double jeopardy
grounds. Ibid.
C. Appeal
by the State: Case Law
1. Double
Jeopardy. Double jeopardy principles
restrict a State's ability to file an appeal in a criminal action. State v.
Lefkowitz, 335 N.J. Super. 352, 357 (App. Div. 2000), certif. denied, 167 N.J.
637 (2001); State v. Veney, 327 N.J. Super. 458, 461 (App. Div. 2000).
"[A]bsent explicit statutory authority, the State has no right to appeal a
criminal sentence." State v. Veney, 327 N.J. Super. 458, 460 (App. Div.
2000).
2.
Deference to Factual Findings. The
appellate court defers to the trial court's findings of fact in reviewing a
sentence, regardless of which party files the appeal. State v. Gerstofer,
271
191 N.J.
Super. 542, 545 (App. Div. 1983), certif. denied, 96 N.J. 310 (1984).
3.
Transfer to a Drug or Alcohol Treatment Program. The State may file an appeal challenging the trial court's grant
of an application authorizing transfer from a custodial institution to a drug
or alcohol treatment program pursuant to Rule 3:21- 10(b)(1). State v. Williams,
139 N.J. Super. 290, 296 (App. Div. 1976), aff'd o.b., 75 N.J. 1 (1977).
4.
Challenge to Jail Credits. "[T]he
State may appeal an award of jail credits on the ground that they are not
authorized by Rule 3:21-8." State v. Rippy, 431 N.J. Super. 338, 343 (App.
Div. 2013), certif. denied, 217 N.J. 284 (2014).
5.
Mandatory Terms. The State may appeal
a sentencing court's refusal to impose a Graves Act mandatory extended term
based on a finding that the proof did not establish the requisite prior
offenses. State v. Robinson, 253 N.J. Super. 346, 358-59 (App. Div.), certif.
denied, 130 N.J. 6 (1992).
6.
Verdict on a Lesser Charge. Where a
judge declines to accept a guilty verdict, and the jury re-deliberates and
returns a verdict on a lesser charge, the State may not appeal the sentence
imposed on the lesser charge. State v. Lefkowitz, 335 N.J. Super. 352, 358
(App. Div. 2000), certif. denied, 167 N.J. 637 (2001). Instructing the jury to
continue deliberations did not equate to rejecting a verdict. Ibid.
7.
Transfer to a Drug or Alcohol Treatment Program. The State may file an appeal challenging the trial court's grant
of an application authorizing transfer from a custodial institution to a drug
or alcohol treatment program pursuant to Rule 3:21- 10(b)(1). State v.
Williams, 139 N.J. Super. 290, 296 (App. Div. 1976), aff'd o.b., 75 N.J. 1
(1977).
8.
Lenient Sentence for a First or Second Degree Crime.
Pursuant
to N.J.S.A. 2C:44-1(f)(2), the State may appeal a sentence for a term one
degree lower on a first or second degree offense. State v. Roth, 95 N.J. 334,
360 (1984).
(a)
Double Jeopardy. Until the ten-day
period ends, the defendant has no expectation of finality in the sentence, and
double jeopardy protections do not attach. State v. Ryan, 86 N.J. 1, 10, cert.
denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981); State v.
Johnson, 376 N.J.
272
Super.
163, 171-72 (App. Div.), certif. denied, 183 N.J. 592 (2005); State v. Evers,
368 N.J. Super. 159, 169 (App. Div. 2004).
(b)
Computing the Ten-Day Period. The
ten-day period begins the day after sentence is pronounced. State v. Johnson,
376 N.J. Super. 163, 173 (App. Div.), certif. denied, 183 N.J. 592 (2005); R.
1:3-1; R. 3:21-4(i). "[F]ailure to perfect an appeal within the ten-day
period will result in dismissal of the State's appeal." State v. Johnson,
376 N.J. Super. 163, 170 (App. Div.), certif. denied, 183 N.J. 592 (2005)
(quoting State v. Sanders, 107 N.J. 609, 616 (1987)).
(c)
Noncustodial Term. Any sentence other
than imprisonment satisfies the "noncustodial" aspect of N.J.S.A.
2C:44-1(f)(2), including suspended sentences and probation. State v. Cannon,
128 N.J. 546, 567 (1992).
(d) Plea
Bargain and the State's Silence. If
pursuant to a plea agreement the State remains silent at sentencing and does
not object to the court's imposing a noncustodial term on a conviction for a
second degree crime, the State may not challenge the sentence on appeal. State
v. Paterna, 195 N.J. Super. 124, 126 (App. Div. 1984).
9. State
May Challenge an Illegal Sentence. "[T]he
State may appeal an illegal sentence without express authorization in the
criminal code or rules of court." State v. Chambers, 377 N.J. Super. 365,
370 (App. Div. 2005) (quoting State v. Parolin, 339 N.J. Super. 10, 13-14 (App.
Div. 2001), rev'd on other grounds, 171 N.J. 223 (2002)).
(a)
Illegal Sentence Defined. "There are
two categories of illegal sentences: (1) those that exceed the penalties
authorized by statute for a particular offense and (2) those that are not in
accordance with the law, or stated differently, those that include a
disposition that is not authorized by our criminal code." State v. Schubert,
212 N.J. 295, 308 (2012) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)).
Accord State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162
N.J. 240, 247 (2000)). An illegal sentence may be corrected at any time prior
to the completion of the sentence. State v. Tavares, 286 N.J. Super. 610, 619
(App. Div.), certif. denied, 144 N.J. 376 (1996).
273
(b)
Illegal Sentence May Not Be Ignored. "[A]
reviewing court is not free to ignore an illegal sentence." State v.
Moore, 377 N.J. Super. 445 (App. Div. 2005). "[S]o long as the issue of
defendant's sentence is properly before the court, the court may correct an
illegal sentence, even by increasing the term." State v. Kirk, 243 N.J.
Super. 636, 643 (App. Div. 1990). Accord State v. Tavares, 286 N.J. Super. 610,
619 (App. Div.), certif. denied, 144 N.J. 376 (1996).
(c) Time
in Which to File an Illegal Sentence Challenge.
The State
may file a petition to correct an illegal sentence at any time before the
defendant completes the sentence. R. 3:21-10(b); State v. Schubert, 212 N.J.
295, 313 (2012); State v. Crawford, 379 N.J. Super. 250, 257 (App. Div. 2005).
"While an 'illegal' sentence is 'correctable at any time,' the State has
an obligation to move quickly when asserting an 'illegality' because the
defendant has an expectation of finality of a sentence within the parameters of
statutory limits (at least in the absence of some appeal or post-conviction
proceeding pending on his or her application)." State v. Tavares, 286 N.J.
Super. 610, 619 (App. Div.), certif. denied, 144 N.J. 376 (1996).
D. Double
Jeopardy Concerns on Remand: Case Law
1. Double
Jeopardy General Rule. "The
double jeopardy provisions of both the United States and New Jersey
Constitutions protect against a second prosecution for the same offense after
acquittal, against a second prosecution for the same offense after conviction,
and against multiple punishments for the same offense." State v.
Eigenmann, 280 N.J. Super. 331, 336-37 (App. Div. 1995); United States v. DiFrancesco,
449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340 (1980). See also
N.J.S.A. 2C:1-9 to -12. For purposes of sentencing, double jeopardy generally
"attaches once a defendant begins to serve a prison term or the sentence
is partially executed." State v. Young, 379 N.J. Super. 498, 505 (App.
Div. 2005), (referring to State v. Ryan, 86 N.J. 1 (1981)), remanded on other
grounds, 188 N.J. 349 (2006)).
2. No
Expectation of Finality Rule. Double
jeopardy does not prohibit a court from imposing a harsher sentence on remand
when
274
the
defendant did not have an expectation of finality in the sentence originally
imposed. State v. Roth, 95 N.J. 334, 344 (1984) (adopting the test set forth in
United States v. DiFrancesco, 449 U.S. 117, 133, 101 S. Ct. 426, 435, 66 L. Ed.
2d 328, 343 (1980)). Accord State v. Sanders, 107 N.J. 609, 18- 20 (1987);
State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005), remanded on other
grounds, 188 N.J. 349 (2006).
3.
Examples of No Expectation of Finality. The
following cases discuss situations in which the defendant does not have an
expectation of finality in the sentence:
(a)
Appeal of Conviction and Sentence. "[A]
defendant who appeals his substantive conviction along with the corresponding
sentence has no legitimate expectation of finality in either the underlying
conviction or the corresponding sentence." State v. Haliski, 140 N.J. 1,
21 (1995).
(b)
State's Right to Appeal. A
defendant cannot expect a sentence to be final when pronounced if the State has
a statutory right to appeal the sentence, as in the case of a term imposed
pursuant to N.J.S.A. 2C:44-1(f)(2) (leniency in sentencing a first or second
degree crime). State v. Sanders, 107 N.J. 609, 619 (1987). If the State
succeeds on appeal, on remand the court may impose a sentence one degree higher
than originally imposed without offending double jeopardy principles.
Ibid.
(c)
Illegal Sentence. "An illegal
sentence that has not been completely served may be corrected at any time
without impinging upon double-jeopardy principles." State v. Austin, 335
N.J. Super. 486, 494 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). A
sentence that does not include a parole ineligibility term mandated by statute
is an illegal sentence. Ibid. (finding error in a Graves Act sentence without a
mandatory parole ineligibility term). Accord State v. Robinson, 253 N.J. Super.
346, 358-59 (App. Div.), certif. denied, 130 N.J. 6 (1992).
(d) State
Appeal of a Judgment Notwithstanding the Verdict. A defendant has no expectation of finality in the sentence imposed
when the State appeals the entry of judgment notwithstanding the verdict
pursuant to Rule 2:3-1(b)(3). State v. Cetnar, 341 N.J. Super. 257, 265 (App.
Div.), certif. denied, 170 N.J. 89 (2001).
275
4.
Harsher Sentence on Remand. The court
may not impose a "substantially harsher" sentence on remand if the
increased sentence is not required by law or supported by "any evidence of
intervening conduct or prior oversight to justify the new sentence." State
v. Heisler, 192 N.J. Super. 586, 592-93 (App. Div. 1984). Accord State v.
Pindale, 279 N.J. Super. 123, 128- 30 (App. Div.) (discussing North Carolina v.
Pearce, 395 U.S. 711, 723, 89 S. Ct. 2072, 2079, 23 L. Ed. 2d 656, 668 (1969)),
certif. denied, 142 N.J. 449 (1995). To hold otherwise would effectively
penalize a defendant for successfully challenging an illegal sentence. State v.
Heisler, 192 N.J. Super. 586, 593 (App. Div. 1984). See also State v.
Eigenmann, 280 N.J. Super. 331, 341 (App. Div. 1995) (holding that the court
could not increase the part of a sentence based on a lawful, though mistaken,
declaration that the defendant was a young adult offender, as that part of the
sentence was not illegal). The court must specifically explain its reasons for
imposing a harsher sentence. State v. Pindale, 279 N.J. Super. 123, 129-30
(App. Div.), certif. denied, 142 N.J. 449 (1995).
5.
Restructuring the Sentence on Remand and Parole Ineligibility. Because "the basic sentencing issue is always the real time
defendant must serve," on resentencing the court may not restructure a
sentence to impose a greater period of parole ineligibility than it imposed in
the initial sentencing. State v. Cooper, 402 N.J. Super. 110, 116-17 (App. Div.
2008) (quoting State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000),
certif. denied, 167 N.J. 633, 772 (2001)). See also State v. Towey (II), 244
N.J. Super. 582, 598 (App. Div.) (explaining that where a defendant
successfully challenges only the excessiveness of a parole disqualifier, the
court on remand may not increase the base term), certif. denied, 122 N.J. 159
(1990).
6.
Restitution. A restitution award may be
increased on resentencing after remand without offending double jeopardy
principles. State v. Rhoda, 206 N.J. Super. 584, 590 (App. Div.), certif.
denied, 105 N.J. 524 (1986).
7.
Unmerged Offenses and the Aggregate Term. In resentencing, the court may impose consecutive terms on
"unmerged" convictions, so long as the new sentence, in the
aggregate, does not exceed the original aggregate term. State v. Crouch, 225
N.J. Super. 100, 107-08 (App. Div. 1988). But see State v. Loftin, 287 N.J.
Super. 76, 113 (App. Div.) (explaining that the
276
defendant
might face a longer aggregate term on remand because the sentencing court erroneously
merged a first degree robbery conviction into a murder conviction, and on
remand, the court had to impose a sentence for the robbery conviction), certif.
denied, 144 N.J. 175 (1996).
8.
Completed Sentence May Not Be Increased. The court may not add a punitive term to a sentence that the
defendant has completed, even if the punitive term was mandated by statute and
absence of it rendered the sentence illegal. State v. Schubert, 212 N.J. 295,
311-12 (2012) (holding that the court could not correct a sentence that did not
include community supervision for life by imposing that term on a defendant who
had completed his sentence, even though the Violent Predator Incapacitation
Act, N.J.S.A. 2C:43-6.4, required that term be included in the sentence).
277
XX. POST-CONVICTION RELIEF
In
limited situations, and after exhausting direct appeals, a defendant may
challenge his or her sentence by way of a petition for post-conviction relief
(see sections A and B).
A.
Post-Conviction Relief: Court Rules
1. Court
Rule Authorizing a First Petition for Post-Conviction Relief. Rule 3:22-2(c) allows a defendant to file a petition for
post-conviction relief challenging his or her sentence on the ground that the
sentence is "in excess of or otherwise not in accordance with the sentence
authorized by law if raised together with other grounds cognizable under"
subparts (a), (b) or (d) of Rule 3:22-2. Those grounds are: the defendant
suffered a "substantial denial of a right" under the United States
Constitution or New Jersey Constitution or laws; the court lacked jurisdiction;
and any other ground "available as a basis for collateral attack upon a
conviction by habeas corpus or any other common-law or statutory remedy."
R. 3:22-2(a), (b) and (d). See Rule 3:22-12(a)(1) for time limitation for
filing. See Rule 7:10-2 for post-conviction relief petitions in municipal
court.
2.
Subsequent Petitions for Post-Conviction Relief. Rule 3:22-4(a) limits the filing of a subsequent petition for
post- conviction relief to claims that (1) "could not reasonably have been
raised in any prior proceeding," (2) "result in fundamental
injustice," or (3) implicate a new or existing constitutional right. Rule
3:22-12(a)(2) sets forth the time limitations for a subsequent petition for
post-conviction relief.
3. Appeal
of a Denial for Post-Conviction Relief. Rule
2:3-2 provides: "In any criminal action, any defendant, the defendant's
legal representative, or other person aggrieved by . . . an adverse judgment in
a post-conviction proceeding attacking a conviction or sentence . . . may
appeal or, where appropriate, seek leave to appeal, to the appropriate
appellate court."
B.
Post-Conviction Relief: Case Law
278
1.
Post-Conviction Relief Is Not a Substitute for a Direct Appeal. A petition for post-conviction relief is not a substitute for a
direct appeal. State v. Mitchell, 126 N.J. 565, 583 (1992). A defendant may not
raise in a post-conviction relief proceeding any issue that might reasonably
have been raised in a direct appeal unless denial of the petition would be
contrary to constitutional law or would result in fundamental injustice. Id. at
584; State v. Laurick, 120 N.J. 1, 10, cert. denied, 498 U.S. 967, 111 S. Ct.
429, 112 L. Ed. 2d 413 (1990).
2.
Excessive Sentence Challenges Prohibited. An excessive sentence claim challenges the harshness of a sentence
that is "within the range permitted by the verdict or plea." State v.
Hess, 207 N.J. 123, 145 (2011). It must be asserted on direct appeal; it will
not be heard in a post-conviction relief petition. Ibid. Only illegal sentences
may be challenged on post-conviction relief. State v. Acevedo, 205 N.J. 40,
46-47 (2011).
3.
Illegal Sentence Challenges Allowed. A
defendant may file a petition to correct an illegal sentence at any time before
the defendant completes the sentence. State v. Schubert, 212 N.J. 295, 313
(2012); State v. Crawford, 379 N.J. Super. 250, 257 (App. Div. 2005). The claim
may be asserted in a petition for post-conviction relief, even if the claim
could have been presented on direct appeal. State v. Levine, 253 N.J. Super.
149, 156 (App. Div. 1992).
4. Plea
Withdrawal Based on Misinformation. A
defendant may be able to retract a guilty plea by way of a petition for post-
conviction relief if he or she was misinformed about the consequences of the
plea. State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (reversing
the denial of a petition for post-conviction relief and remanding for a hearing
to determine whether the incorrect information regarding community supervision
for life of a sex offender rendered the plea uninformed).
5.
Challenge to Gap-Time Credits. Gap-time
credit claims "pertain to the legality of the sentence imposed and may be
raised in a petition for post-conviction relief." State v. Shabazz, 263
N.J. Super. 246, 251 (App. Div.), certif. denied, 133 N.J. 444 (1993).
6. Enhanced
Sentence Based on a Prior Uncounseled Guilty Plea.
279
Under
state constitutional law, the court may not impose an enhanced term of
incarceration based on a prior uncounseled guilty plea without waiver of the
right to counsel. State v. Hrycak, 184 N.J. 351, 362-63 (2005); State v.
Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed.
2d 413 (1990); State v. Thomas, 401 N.J. Super. 180, 184 (Law Div. 2007). An
enhanced jail term based on an uncounseled prior conviction is not an illegal
sentence, however. State v. Bringhurst, 401 N.J. Super. 421, 431 (App. Div.
2008). Thus, a challenge to it should be asserted on direct appeal. Id. at
428-37.
source
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