Criminal Law – The Sentencing Process (Part 2)

by | Dec 18, 2015 | Blog, Criminal Law, Jail Time and Probation, Legal Procedures

Returning to the required balancing of the aggravating and mitigating factors in formulating a sentence, the State has the burden to prove the existence of any aggravating factors. State v . Merlino, 208 N.J . Super. 24, 261-62 (Law Div. 1984). The burden of proof is by clear and convincing evidence.

Aggravating factor (1) is “The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner .” This factor is inapplicable where the crime is not “committed in an especially heinous , cruel or depraved manner.” State v . Jarbath, 114 N.J. 394 , 404 (1989). “Cruel” means an intent to inflict pain and suffering on the victim. State v. O’Donnell, 117 N.J. 201, 217-18 (1989) . This factor, like all aggravating factors, should be applied only where the particular crime was more serious than others in its class. See State v . Carey, 168 N.J . 413, 425-26 (2001).

Aggravating factor (2) is “The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health , or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.” Where the harm to the victim is an element of the crime, it cannot be double counted as an aggravating factor. See State v . Jarbath, 114 NJ 394, 404 (1989). This factor cannot be supported by the risk of harm to other people, which is a consideration that the legislature has incorporated into its gradation of the crime. State v . Gardner, 113 N.J. 510, 513 (1989).

Aggravating factor (3) is “The risk that the defendant will commit another offense.” This factor is inappropriate where the defendant does not have a serious prior record and there are no other reasons to believe she will re-offend. State v . Shoats, 339 N.J. Super 359, 360-62 (App. Div. 2001) .

Aggravating factor (4) is “A lesser sentence will depreciate the seriousness of the defendant ‘s offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense.” It was inappropriate to find this factor in a theft (burglary) and sex assault case where there was no breach of the “public trust.” State v . Mosch, 214 N.J. Super. 457, 463 (App. Div. 1986).

Aggravating factor (5) is “There is a substantial likelihood that the defendant is involved in organized criminal activity.” This factor is intended to apply where the defendant is involved in organized crime and not merely convicted of an offense associated with organized crime. Merlino, at 256-59.

Aggravating factor (6) is “The extent of the defendant ‘s prior criminal record and the seriousness of the offenses of which he has been convicted.” Unproven allegations of criminal conduct should not be considered by a sentencing judge. State v . Farrell, 61 N .J . 99, 107 (1972).

Aggravating factor (7) is “The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself.” This factor does not apply when the money to be gained is merely the proceeds of criminal activity. State v . Rosado, 256 N.J. Super. 126, 130 (App. Div. 1992).

Aggravating factor (8) is “The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person ‘s status as a sports official, coach or manager.”

Aggravating factor (9) is “The need for deterring the defendant and others from violating the law.” Where the defendant has been convicted at trial, the fact that she has not admitted her guilt cannot be used as an aggravating factor. State v . Marks, 201 N.J. Super. 514, 539-40 (App. Div.1985). Where defendant is unlikely to commit another crime, there is no need for individual deterrence, and thus only general deterrence would remain as an aggravating factor. State v. Powell, 294 N.J. Super. 557, 567 (App . Div. 1996). Where the defendant ‘s conduct was unlikely to recur and she is likely to respond to probationary treatment, the need for specific deterrence is negated. State v . Briggs, 349 N.J. Super. 496, 505 (App. Div. 2002) . General deterrence unrelated to specific deterrence has relatively insignificant penal value. Jarbath, at 405. While this aggravating factor appears to be ever-present in sentencing, it should be reserved for cases where there is a special need to deter the defendant. See State v . Martelli, 201 N.J. Super . 378, 385-86 (App. Div. 1985). The cases upholding factor nine as a significant aggravating factor based solely upon the type of crime for which defendant has been convicted have been limited to crimes of violence and extraordinary drug offenses. See State v . Noble, 398 N.J. Super. 574, 599 (App. Div. 2008); State v. Doss, 310 N.J . Super . 450, 461 (App. Div. 1998); State v. Cancel, 256 N.J. Super. 430, 437 (App. Div. 1992); and State v . Davidson, 225 N.J. Super. 1, 16 (App. Div. 1988).

Aggravating factor (10) is “The offense involved fraudulent or deceptive practices committed against any department or division of State government.”

Aggravating factor (11) is “The imposition of a fine, penalty, or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices. The published cases upholding the finding of this aggravating factor all deal with crimes of violence or significant drug distribution. See State v . Biancamano, 284 N.J. Super . 654 (App . Div . 1995); State v . Ascenio, 277 N.J . Super. 334 (App. Div. 1994); State v . Tarver, 272 N.J . Super. 414 (App. Div. 1994); State v. Dalziel, 182 N .J . 494 (2005); and State v. Rivera, 351 N.J . Super. 93 (App. Div. 2002).

Aggravating factor (12) is “The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled.” This factor’s focus on the victim ‘s age along with disability demonstrates a concern for protecting victims who are vulnerable because of their age and/or disability. Such is the case with the published decisions addressing this factor. In State v . Denmon, 347 N.J. Super. 457 (App. Div. 2002), an elderly couple was handcuffed during a home invasion wherein the perpetrator was familiar with the occupants and the fact that one of the elderly victims was disabled and unable to maneuver due to knee replacement surgery. Similarly, in State v . Washington, 408 N.J. Super. 564 (App. Div. 2009), the defendant was responsible for the care of the 84-year-old victim whom she moved from a nursing home into her home while the victim was completely dependent on the defendant due to her advanced age and diminished mental capacity.

Aggravating factor (13) is “The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle.”