Judge Koblitz continued in relevant part: N.J.S.A. 2C:44-1(d) imposes a presumption of incarceration when a defendant is convicted of a third-degree crime and the trial court finds aggravating factor fifteen applies. The presumption may be overcome if the trial judge finds, after considering the defendant’s “character and condition,” incarceration would cause a “serious injustice which overrides the need to deter such conduct by others. Serious injustice” is generally difficult for a defendant to prove and a defendant must show he or she is “so idiosyncratic that incarceration for the purposes of general deterrence is not warranted.” State v. Jarbath, (1989) (finding “serious injustice” where the defendant, convicted of manslaughter, could not comprehend that she committed a crime due to her mental and emotional deficiencies); see also State v. E.R., (App. Div. 1994) (finding “serious injustice” where the defendant was a bed-ridden AIDS patient and imprisonment would not serve a purpose).
The State argues the sentence is illegal because the trial judge did not adequately explain why he found defendant would be subject to “serious injustice,” the judge applied inappropriate facts when referring to defendant’s need to provide for his children, and defendant failed to show he was “idiosyncratic.” Even if the court’s reasoning was inadequate, that deficiency did not render the sentence illegal. “Sentences authorized by law but premised on an abuse of discretion are not illegal.” Hyland, slip op. at 15.
The State was not permitted by statute to appeal; to remand for the imposition of a harsher sentence after defendant began serving the probationary sentence imposed would violate double jeopardy protection; and the sentence was not illegal. The appeal is dismissed.
Even the AIDS patient example was an old case that would probably not provide a basis for an idiosyncratic defendant finding today. This is because many more people live with AIDS now than they did just a decade ago.