This brings us to the case of State v. Jones, 197 N.J. Super. 604, 607(App. Div. 1984), where the Appellate Division vacated and remanded the trial court’s downgrading of the defendant’s second-degree theft by deception, N.J.S.A. 2C:20-4, conviction to the third-degree, finding an abuse of discretion. This case is a favorite of prosecutor’s because it […]
Sentencing Downgrade (Part 8) – State v. John Fiore
In State v. John Fiore, Docket No. A-0960-09T2 and A-1078-09T2 (App. Div. 2013), the downgraded sentence pursuant to N.J.S.A. 2C:44-1f(2) was affirmed. There, a jury found defendant guilty on: count one (second-degree conspiracy to promote or facilitate bribery in official and political matters, N.J.S.A. 2C:27-2d; misapplication of entrusted property, N.J.S.A. 2C:21-15; and official misconduct, N.J.S.A. […]
Sentencing Downgrade (Part 7) – Tanco-Brito cont.
The Appellate Court also endorsed the trial court’s finding that the lack of any prior firearms offenses made Tanco-Brito’s firearm offense “seem out-of-character.” This was endorsed as a “compelling reason in addition to mitigating factor” eight (conduct was the result of circumstances unlikely to recur) and nine(the character and attitude of the defendant indicate that […]
Sentencing Downgrade (Part 6) – Tanco-Brito
Tanco-Brito also involved a violent offense wherein the defendant threatened the victim while pointing a handgun at him. Id. at 2. Moreover, the trial judge downgraded defendant’s conviction from a second-degree offense to a third-degree offense and placed the defendant on probation, as opposed to imposing a prison sentence. There, the trial court’s required finding […]
Sentencing Downgrade (Part 5) – State v. L.V.
Examples of the Appellate Division’s finding separate and compelling reasons that justify a sentencing downgrade are as follows. In State v. L.V., 410 N.J. Super. 90 (App. Div. 2009), the defendant pleaded guilty to second-degree aggravated assault and second-degree reckless manslaughter against two separate victims (her newborn children). Despite the existence of a negotiated agreement […]
Sentencing Downgrade (Part 4) – In The Interests of Justice Standard
Returning to sentencing downgrades under the broader “in the interests of justice standard”, the defendant must provide compelling reasons for the downgrade in addition to, and separate from, the mitigating factors which substantially outweigh the aggravating factors. State v. Megargel, 143 N.J. 484, 496-502 (1996). The focus is not on the offender, but on the […]
Sentencing Downgrade (Part 3) – State v. E.R.
In State v. E.R., 273 N.J . Super. 262 (App. Div. 1994), an amended judgment of conviction was imposed upon defendant, E.R., for two second degree crimes. Id. at 264. By the terms of the amended judgment, the trial court’s seven year prison sentence was vacated and the defendant was re-sentenced to probation for a […]
Sentencing Downgrade (Part 2) – Mentally Handicapped
Additionally, the two statutes address two qualitatively different criminal law situations. Id. 2C :44-l(d) governs imprisonment versus non-imprisonment, a more serious condition, while section 2C :44-lf(2) governs whether or not a defendant convicted of a crime should be sentenced as if convicted of a crime one degree lower. Id. This means that a first or […]
Sentencing Downgrade (Part 1) – Serious Injustice
Although our legislature mandates that persons convicted of first or second-degree crimes must be sentenced to prison, as opposed to probation, there are limited circumstances where defendant can still receive a sentencing downgrade to probation for a first or second-degree crime. Note that probation as used here refers to “standard probation” as opposed to drug […]
Criminal Law – The Sentencing Process (Part 4)
A court may consider other matters that it finds mitigating even if not listed in the statute. State v. Rice, 425 N.J. Super. 375, 381 (App. Div. 2012). In addition to the enumerated mitigating factors, restrictions on the defendant that will not serve to offset the time that she will be incarcerated should be considered […]