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 he is unlikely to commit another offense), which were both found by the trial court.

The Tanco-Brito Court continued: “Accordingly, there appears to this court to be a lesser need to deter defendant from further crimes to protect the public from. Thus the court finds that the need for deterrence is somewhat neutralized in this matter. Moreover, a lesser sentence should have a sufficient deterring effect on defendant as he has little experience with the criminal justice system.” Id.

In directly addressing the nature of the offense, the Tanco-Brito Court held: Second, in applying the interest of justice standard, the severity of the crime remains the single most important factor in considering whether the interest of justice demands a downgrade. The crime committed, while serious, seems aberrational. And although classified as a second-degree crime, in this particular set of circumstances relates to a lesser degree offense as it is a regulatory violation. Id. at 12. Here, the aberrational nature, i.e. Tanco-Brito’s lack of any history of firearms offenses was again given credit as a “compelling factor in addition to the mitigating factors”, while mitigating factor seven (lack of a prior record) was still found.

The Appellate Division concluded: The State’s argument that there are no compelling reasons to downgrade the sentence is belied by the record. Judge Bariso found multiple compelling reasons to downgrade the offense, including that the nature and severity of the crime in this case was a regulatory offense not in connection with any other crimes. Moreover, Judge Bariso made this determination independently of the mitigating factors which substantially outweighed the single aggravating factor found. Id. Thus, the Appellate Division also placed great weight on the fact that although the offense was one of the second degree with enhanced penalties, “it was not in connection with any other crimes.”