Criteria for Withholding Imprisonment (Part 3)

Defendant also argues that the court erred by finding aggravating factor four. In the context of this case, aggravating factor four applies if “the defendant took advantage of a position of trust or confidence to commit the offense.” N.J.S.A. 2C:44-1(a)(4) (emphasis added). Notably, at sentencing the State did not argue aggravating factor four applied. The court nevertheless found it applied, reasoning that defendant was “in a position of authority, trust and confidence in terms of his youthful and far less mature cousin,” and he took advantage of that position when concealing the crime. The court concluded that a “plain reading of the language in aggravating factor four” required its application. We disagree.

Alvarez did not help commit the manslaughter or weapons offenses. As the sentencing court recognized, he only helped “conceal the crime after the fact.” Importantly, defendant was acquitted of hindering apprehension.

More fundamentally, the “position of trust or confidence” must relate to the victim, not to a minor assisting defendant operate the shop, who participates in an attempted coverup of the crime.

The court erred in applying aggravating factor four. For this additional reason, resentencing is necessary. On remand, the court shall not consider aggravating factor four.

The Appellate Division’s recitation of the trial court’s findings reflects arrogance on the part of the sentencing judge. For the sentencing judge to use the phrase “plain reading of the language in aggravating factor four” while plainly mis-reading and mis-applying the factor is embarrassing. Too often, superior judges are politically appointed because of their political connections as opposed to their being the best applicants for the job. This is especially true with criminal court judges who often have little to no experience handling criminal cases. Given the high stakes involved and how criminal law and procedure have become increasingly nuanced and complicated, criminal curt judges in superior court should have at least some experience defending and/or prosecuting criminal cases.