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 term of five years. Id.
In E.R. the defendant had an uncontradicted prognosis of imminent death within six months due to an active disease. Id. at 265. The Appellate Division concluded that under the facts of the case, the defendant’s medical status was appropriately considered by the sentencing judge and his discretionary decision to impose probation rather than incarceration was appropriate. Id.
E.R. was indicted for second degree possession for an unlawful purpose of destructive devices, described as four pipe bombs capable of detonation and second degree possession of cocaine with intent to distribute, among other offenses. Id. E.R.’s prior arrest and conviction record indicated that in 1977, at age twenty, he had been sentenced to New Jersey State Prison for a term of five years for burglary. Id. at 269. He was cited for violating probation in 1978. Id. The Appellate Division re-sentenced him to a term of probation, despite agreeing with the trial court that aggregating factors six and nine were clearly applicable. Id. at 270. Nevertheless, the E.R. Court held that the defendant’s medical prognosis of imminent death within six months made him idiosyncratic and justified forestalling the deterrent effect of incarceration. Id. at 272.
Lastly, in State v. Daniels, 195 N.J. Super. 584 (App. Div. 1984), the defendant pled guilty to a first degree robbery in which he and two co-defendants used an unrecovered firearm to rob another youth of a moped, helmet, and air pump. Id. at 586. The trial judge sentenced defendant to a prison term not to exceed seven years. Id. at 587. The Appellate Division reversed and remanded after granting defendant’s motion for bail pending appeal. Id. The Appellate Court did so based on the trial judge’s failure to recognize that a probationary sentence could be imposed under the circumstances for the first degree robbery. Id.
The relevant circumstances were as follows : Daniels suffered from left hemiplegia , meaning that he was partially paralyzed on the left side and he suffered from frequent seizures which were treated by medication “but not totally controlled .” Id. The pre-sentence report stated that ”[i]f the Graves Act were not applicable, this writer would recommend a probation term, to include occupational therapy in a sheltered workshop.’ Id. Attached to the pre-sentence report was a letter to the probation officer from a School Social Worker expressing the opinion that a jail sentence can neither “deter or rehabilitate” defendant and stating that “although he has had an uneven success rate with a sheltered workshop placement, I do feel strongly that he is a candidate for a rehabilitative sheltered workshop setting.” Id.
At the time of sentence, the trial judge said: Frankly, if it weren’t for the Roth Case, I would follow the recommendation of the Probation Department. Id. As I read the Roth Case, I don’t have the authority to do so because I have to give a custodial sentence under the law. Id. at 588. The trial judge found aggravating factor one (the nature of the offense), along with mitigating factors four (“The defendant ‘s health problems do not excuse him but can be considered”), seven (“This is defendant ‘s first conviction “), eight (“Defendant is not likely to commit another offense”), and 13 (An older co-defendant had the major role”). Id.
In reversing and remanding, the Appellate Court recognized that “the severity of the crime is now the single most important factor in the sentencing process.” Id. at 589. However, the Court held that when a sentencing judge justifiably decides that imprisonment would be a serious injustice under the provisions of 2C :44-l(d), the judge need not be a computer automatically imposing a custodial sentence. Id. at 589. In remanding the matter, The Appellate Court gave a clear instruction to the trial judge that it would not be an abuse of discretion if the trial court should forgo the imposition of a custodial sentence because he “is of the opinion that defendant’s imprisonment would be a serious injustice which overrides the need to deter such conduct by others because within the constraints of the statute, there is still some discretion reposed in the sentencing judge.” Id.
While “the severity of the crime is now the single most important factor in the sentencing process”, the defendant in Daniels was deserving of a probationary sentence despite the fact that he was charged with the most serious level of offense recognized by our criminal code, a first-degree robbery subject to an 85% parole disqualifier. The Daniels opinion also lends itself to the argument that medical and psychiatric conditions need not rise to the level of imminent death, as was the case in E.R ., or mental retardation as was the case in Jarbath, in order to justify the imposition of a probationary term for a first or second degree offense.