Judge Fisher concluded in relevant part: And other circuit judges, albeit a minority, have joined the chorus in criticizing the practice. See United States v. Brown, 892 F.3d 385, 408 (D.C. Cir. 2018) (Millett, C.J., concurring) (asserting that “allowing courts at sentencing ‘to materially increase the length of imprisonment’ based on conduct for which the jury […]

The Appellate Division continued in relevant part: If this “presumption of innocence” still constitutes a bedrock constitutional principle, then it must mean that once acquitted, the accused must be viewed as innocent – not just not guilty – of the acquitted charge. See State v. Cote, 530 A.2d 775, 785 (N.H. 1987). Here, the jury’s acquittal of […]

On June 16, 2020, a three-judge appellate panel decided the Essex County case of State v. Michelle Paden-Battle. The principal issue under N.J.S.A. 2C:44-1 involved the propriety of the trial judge considering “facts” at sentencing that were rejected by the trial jury in acquitting the defendant of murder. This case was argued telephonically on May […]

The Appellate Division continued in relevant part: The State argues further that the judge’s “quasi-proportionality analysis was fatally flawed” because “the prosecutor was unfamiliar with those unrelated cases,” “was not given a meaningful opportunity to address the court’s concerns based on its comparisons,” and “the other-cited cases were poor candidates for comparison.” During the December […]

On June 15, 2020, a three-judge appellate panel decided the Middlesex County case of State v. Alexander Andrews. The principal issue under N.J.S.A. 2C:43-6.2 involved the Assignment Judge’s comparison of the defendant’s case to similar cases in overruling the State’s rejection on the Graves Act waiver petition. This was an interlocutory appeal, meaning that the […]

The Appellate Division concluded with the following in relevant part: While we conclude the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes defendant’s custodial sentences as a condition of his probation, we also observe a probationary sentence conditioned on service of the mandatory period of parole ineligibility is consistent with the Legislature’s “criminalization of the act of driving while one’s […]

Judge Vernoia continued in relevant part: More pertinent here, the Court also directed that, where the trial court concludes a probationary sentence is appropriate, “it must condition that term on a 270-day period of community service or of incarceration without parole eligibility.” Ibid. (emphasis added). Thus, the Court permitted and approved a split sentence under N.J.S.A. 2C:43-2(b)(2) that includes imprisonment and […]

The Appellate Division continued in relevant part: Here, the periods of parole ineligibility imposed as conditions of defendant’s imprisonment do not fall within the Hartye proscription. The trial court did not sentence defendant to a term of imprisonment at a state correctional facility in accordance with N.J.S.A. 2C:43-2(b)(3) or impose a period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b). Instead, the court […]

The Court recognized that both subsections (b)(2) and (b)(3) of N.J.S.A. 2C:43-2 provide for imposition of terms of “imprisonment,” and it noted differences between the imprisonment authorized in each subsection. For example, the Court explained that a term of imprisonment under subsection (b)(3) “must be served in a state correctional facility,” whereas the custodial portion of a split […]