Justice Patterson concluded with the following: We find no error in the trial court’s reliance on defendant’s criminal record both to determine defendant’s “persistent offender” status under N.J.S.A. 2C:44-3(a) and to support the court’s finding of aggravating factors three, six, and nine. Indeed, in our decision in Pierce, we envisioned that the defendant’s criminal record may be relevant in both stages of the sentencing determination. We held that a sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant’s criminal record of convictions renders him or her statutorily eligible. If so, whether the court chooses to use the full range of sentences opened up to the court is a function of the court’s assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public.
In that crucial inquiry, defendant’s prior record is central to aggravating factor six, and may be relevant to other aggravating and mitigating factors as well. See N.J.S.A. 2C:44-1(a) and (b); see also State v. McDuffie, (App. Div. 2017) (rejecting, “as lacking merit,” the defendant’s claim that the sentencing court “impermissibly double-counted his criminal record, when granting the State’s motion for a discretionary extended term, and again, when imposing aggravating factor six, which considers the extent and seriousness of a defendant’s prior record”).
Accordingly, the trial court properly considered defendant’s criminal record in deciding defendant’s statutory eligibility for an extended term, and in weighing aggravating and mitigating factors to determine that such a term was warranted. The judgment of the Appellate Division is affirmed as modified.
Justices LaVecchia, Fernandez-Vina, and Solomon joined in Justice Patterson’s opinion. These are historically the four most pro-prosecution justices on the present Supreme Court. Although Justice LaVecchia tends to be more of a swing vote with regard to criminal law matters.
Chief Justice Rabner filed an opinion concurring in part and dissenting in part, in which Justice Timpone joins. Justice Albin filed a dissenting opinion. These dissents were based on other grounds, namely the admission at trial of the defendant’s post-arrest statements in violation of his Miranda rights. The competing dissents disagreed on whether the error in admitting the defendant’s statements was harmless or whether it requires a reversal of his conviction.
