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 calling for seven year concurrent N.E.R.A. sentences, and the fact that the trial judge imposed concurrent five year sentences, the Appellate Division reversed and exercised original jurisdiction in sentencing the defendant as a third degree offender. Id. at 93. Note that L.V. involved a negotiated agreement which made the seven year sentences “presumptively reasonable.” See State v. Spinks, 66 N.J. 568, 573 (1975). There is no such presumption in cases of conviction after a trial because those cases do not involve a plea bargain. L.V. also involved “enhanced” N.E.R.A. sentences which require more compelling reasons to justify a downgrade than the downgrading of a “flat” sentence, i..e a sentence within the normal sentencing range and without a period of parole ineligibility. Still, the Appellate Division in L.V. reversed the lower court for refusing to downgrade the sentences.
Although the Lake Court held that in deciding whether to downgrade a sentence, “the focus is not on the offender, but on the offense”, the L.V. Court held that “Nonetheless, facts personal to the defendant may be considered in the sentencing process.” L.V., at 109. Indeed, the L.V. Court relied entirely on facts personal to the defendant, as opposed to the heinous nature of throwing one newborn to their death and throwing a second newborn to suffer serious bodily injury:
Compelling reasons exist for the downgrade. In addition to the mitigating factors, defendant is a person of very limited intelligence, functioning at a level in school initially below a five-year-old child and by the time of the crimes at the level of a six-year-old child. She struggled in school and was placed on special education programs. She has a severe language disorder and severe deficits in comprehension and syntax. She suffers from PTSD and Major Depressive Disorder. The circumstances surrounding her behavior were extreme and severe. She had been raped by her father repeatedly for years, causing impairment of her judgment and decision-making ability. She felt powerless toward her father and feared for her life and that of her mother. Her cognitive limitations impaired her ability to seek help with respect to the rapes and her pregnancies and affected her desire not to have her babies abused, and she was socially isolated by her abusive father. Her cultural and language barriers and her lack of assimilation into the community also prevented her from seeking help. As Dr. Hogan opined, “there are severe circumstances that influenced her mental state at the time and likely impaired her judgment, behavior and decision-making ability.” Indeed, those circumstances were “horrific.” The judge erred in refusing to sentence defendant as a third-degree offender. Id. at 112-113.
In State v. Roberto C. Tanco-Brito, Docket No. A-4128-13T2 (App. Div. March 26, 2015), the defendant’s conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, was downgraded to a third-degree offense for sentencing purposes. Id. at 1-2. There, an even heavier burden was overcome by the trial court and affirmed by the appellate division since the offense carried an “enhanced penalty” in the form of a mandatory minimum period of parole ineligibility under N.J.S.A. 2C:43-6.