As opposed to the aggravating factors that weigh in favor of a longer and/or more severe sentence, the mitigating factors weigh in favor of a shorter and/or less severe sentence. Aside from arguing the applicability of mitigating factors, the defense should incorporate the authority above to argue against applying the aggravating factors.
Mitigating factor (1) is “The defendant’s conduct neither caused nor threatened serious harm.” This factor applies when the defendant is convicted of possessing a small amount of drugs for personal use since it is improper to focus on “what could have happened”, as opposed to what happened. State v. Molina, 114 N.J. 181 (1989).
Mitigating factor (2) is “The defendant did not contemplate that his conduct would cause or threaten serious harm. This factor appears to be applied liberally, even in the case of a first degree carjacking, so long as the victim is not physically hurt. See State v . Zadoyan, 290 N.J. Super. 280, 289 (App. Div. 1996). Furthermore, this factor was found to apply where the defendant suffered from mental illnesses, including post traumatic stress disorder (PTSD). See State v . Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002). Like mitigating factor (1), factor (2) also applies when the defendant is convicted of possessing a small amount of drugs for personal use. State v. Cullen, 351 N.J. Super. 505 (App. Div. 2002).
Mitigating factor (3) is “The defendant acted under a strong provocation.” This factor was found to apply where defendant suffered from mental illness that was a contributing cause to the offense. See State v . Hess, 207 N.J. Super. 123, 149 (2011). This factor also applies in a passion-provocation manslaughter case without being considered “double-counting” since the factor requires a “strong provocation” and the manslaughter statute only requires “reasonable provocation.” State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985). Also instructive is State v. Robinson, 206 N.J. Super. 268 (App. Div. 1993), where the court considered the fact that the victim punched the defendant in the face to be a mitigating factor in an assault case.
Mitigating factor (4) is “There were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense.” This factor is applicable to defendants with significant mental or psychological problems, even though not sufficient to negate an element of the offense. State v . Hess, 207 N.J. Super. 123, 149 (2011). Where the State’s own expert agreed that the defendant had mental problems, it was “difficult to understand how defendant’s condition could not have constituted a mitigating factor.” State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998). This factor applies in light of a defendant’s troubled family background (without any insight into the specifics of the family background). State v. Collella, 298 N.J. Super. 668, 676 (App. Div. 1997). While drug dependency does not in itself establish this factor, when a defendant applies for drug court, drug dependency at the time of the offense is an important factor to be considered. State v . Clarke, 203 N.J. 166, 182 (2010). See also State v . Henry, 418 N.J. Super. 481, 495-97 (Law. Div. 2010) (finding defendant ‘s alcoholism to be a mitigating factor where substance abuse treatment was imposed as part of the sentence because “although this does not justify or excuse the defendant ‘s conduct, it explains it.”). The b(4) factor was held to apply to a case where an infant was killed by a woman characterized as so emotionally impaired and mentally retarded that she could not comprehend the wrongfulness of her conduct. State v. Jarbath, 114 N.J. 394, 414-415 (1989). In State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998), it was noted that a defendant’s mental condition may be considered as a mitigating factor even if the jury has rejected his insanity defense. In State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002), the court suggested that a defendant’s troubled youth as well as continuous physical, sexual and psychological abuse by the victim, along with expert reports to the effect that she suffered from post-traumatic distress disorder consistent with severe and chronic spousal abuse, might be highly relevant to factors b(2), b(4) and b(5), when she was convicted of stabbing her ex-husband after an argument.
Mitigating factor (5) is “The victim of the defendant’s conduct induced or facilitated its commission.” In State v . Jones, 197 N.J. Super. 604, 607 (App. Div. 1984), an employer’s failure to audit an employee who committed thefts was not conduct which induces or facilitates an embezzlement within the meaning of factor five. However, the factor may still apply where the employer is aware of the employee’s mental health issues. State v. Pavin, 202 N.J. Super. 255, 266-267 (App. Div. 1985) holds that becoming a voluntary passenger of a drunk driver is a b(5) facilitation of death by auto.
Mitigating factor (6) is “The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service.” This factor applies where the defendant settled a related civil suit with the victim and paid part of the agreed upon sum. State v. Mara, 253 N.J. Super. 204 (App. Div. 1992).
Mitigating factor (7) is “The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense.” A court may apply this factor despite relatively recent prior arrests and charges, so long as they did not result in conviction. State v. Rice, 425 N.J. Super. 375, 382-383 (App. Div. 2012).
Mitigating factor (8) is “The defendant’s conduct was the result of circumstances unlikely to recur.” This factor applied based on the fact that the defendant, a police officer, forfeited his job and would not again have the chance to engage in official misconduct. State v. Rice, 425 N.J. Super. 375, 382-383 (App. Div. 2012). The factor also applies where the defendant has no prior record and the offense (a homicide) was accidental. State v. Jarbath, 114 N.J. 394 (1989). This factor (and factor (b)9) was found where the defendant had no prior involvement with the justice system and was suffering from emotional and psychiatric problems at the time of the offense. State v . Hess, 207 N.J. 123, 149 (2011).
Mitigating factor (9) is “The character and attitude of the defendant indicate that he is unlikely to commit another offense.”As noted above, this factor applies where defendant has no prior involvement with the justice system and was suffering from emotional and psychiatric problems at the time of the offense. State v . Hess, 207 N .J. 123, 149 (2011). With regard to this factor, rehabilitation that occurred after a finding of guilt is relevant. Thus, the defendant is to be judged as he is on the day of sentencing as opposed to the date of the offense or date in which he was found guilty. State v. Jaffe, 220 N.J. 114, 124 (2014). Good character and attitudes are bases for finding this factor. State v. Pavin, 202 N.J. Super. 255 (App. Div. 1985).
Mitigating factor (10) is “The defendant is particularly likely to respond affirmatively to probationary treatment.” This factor applies even in the face of a second degree conviction where an idiosyncratic defendant is deserving of a probationary sentence. See State v. E.R., 273 N.J. Super. 262, 270 (App. Div. 1994), where a defendant had not been charged with any substantive offenses during the past 14 years. The factor applied even though the defendant in E.R. had a remote burglary conviction which ultimately resulted in a violation of probation and state prison sentence. Id. at 269. Moreover, this factor applies when the defendant is amenable to parole. State v . G .B., 255 N.J. Super. 340, 348 (App. Div. 1992).
Mitigating factor (11) is “The imprisonment of the defendant would entail excessive hardship to himself or his dependents.” In State v. Jarbath, 114 N.J. 394 (1989), this factor was held to apply to a mentally retarded defendant who was so impaired that she could not endure prison without hardship beyond what would be endured by ordinary inmates, and because there was evidence that the defendant could respond to probation conditioned upon treatment and other appropriate conditions. The factor also applies to former police officers. State v. O’Donnell, 117 N.J. 210 (1989). Even if the effects of a parent’s incarceration on their minor children are not enough to overcome the presumption of incarceration, this mitigating factor can still be found to lessen the length of incarceration. See State v. Mirakaj, 268 N.J. Super. 48, 51-52 (App. Div. 1993). This factor applies where the defendant has two dependents and complies with a child support order. State v. Paduani, 307 N.J. Super. 134 (App. Div. 1998).
Mitigating factor (12) is “The willingness of the defendant to cooperate with law enforcement authorities.” In State v . Morant, 241 N .J . Super. 121, 141 (App . Div . 1990), the Appellate Division held that the defendant’s giving a confession constitutes cooperation with the prosecution as contemplated by mitigating factor 12. It is improper to withhold this mitigating factor in order to assure additional cooperation against a fugitive co-defendant. State v. Henry, 323 N.J. Super. 157 (App. Div. 1999).
Mitigating factor (13) is “The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.” This factor applies where the defendant was an accomplice and the older co-defendant was primarily responsible. State v. Megargel, 278 N.J. Super. 557 (1996). In State v. Brimage, 153 N.J. 1 (1998), it was held to apply where the crime was committed due to an older family member’s influence. Youth itself may be a mitigating factor even if there was no older person’s influence. State v. Tanksley, 245 N.J. Super. 390 (App. Div. 1991).
