Criteria for Withholding Imprisonment (Part 1)

On December 19, 2022, a three-judge appellate panel decided the Union County case of State v. Welder Morente-Dubon. The principal issues before the Court concerned the criteria for withholding prison sentences under N.J.S.A. 2C:44-1.

Judge Geiger wrote for the panel in relevant part: While our analysis in Teat supports the trial court’s position, it is inconsistent with Melvin, which held that “acquitted conduct” could not be “considered in sentencing defendants.” In Melvin, the Court held:

that the findings of juries cannot be nullified through lower-standard fact findings at sentencing. The trial court, after presiding over a trial and hearing all the evidence, may well have a different view of the case than the jury. But once the jury has spoken through its verdict of acquittal, that verdict is final and unassailable. The public’s confidence in the criminal justice system and the rule of law is premised on that understanding. Fundamental fairness simply cannot let stand the perverse result of allowing in through the back door at sentencing conduct that the jury rejected at trial.

Melvin silently overruled Teat.

Here, because the State failed to disprove passion/provocation manslaughter, defendant was convicted of that lesser-included offense. Nevertheless, at sentencing, the trial court found that “defendant was not reasonably provoked to passion and had sufficient intervening time for reason to intercede before he brutally killed Mr. Tremarco.” This constituted impermissible judicial fact-finding at sentencing that Melvin declared violated fundamental fairness.

To be clear, if the jury had found inadequate provocation or sufficient time to cool off, defendant would have been convicted of murder. The jury did not make that finding. It was therefore improper for the trial court to engage in judicial factfinding to reach a different conclusion and to consider those facts in sentencing defendant.

This New Jersey state court rule demonstrates how our state constitution provides the ceiling of our rights while the federal constitution provides the floor. The judicial fact-finding that is prohibited in New Jersey state courts is permitted in our federal courts.