On September 29, 2025, a three-judge appellate panel decided the Monmouth County case of State v. R.A.M. The principal issue under N.J.S.A. 2C:44-1 concerned the applicability of aggravating factor 15 to a domestic violence conviction.
Judge Perez Friscia wrote for the Appellate Division in relevant part: Pursuant to aggravating factor fifteen’s plain language, its application requires a court to find defendant’s present conviction “involved an act of domestic violence,” and “defendant committed at least one act of domestic violence on more than one occasion.” Stated another way, for a court to find aggravating factor fifteen, it must determine defendant committed an offense involving domestic violence and had previously committed a separate act of domestic violence. Therefore, aggravating factor fifteen only applies if the court finds based on sufficient credible evidence that a defendant had previously committed an act of domestic violence.
While we determine aggravating factor fifteen’s plain language is clear, a review of the legislative history further evinces the Legislature’s intent for courts to apply aggravating factor fifteen to defendants that have committed prior acts of domestic violence. We note that when the Senate Judiciary Committee considered proposed Criminal Code amendments related to “crimes associated with domestic violence,” including amendments to N.J.S.A. 2C:44-1, it explicitly stated that sentencing courts shall consider “other crimes or offenses committed against victim of domestic violences.” S. Judiciary Comm. Statement to S. 2559, at 2 (June 11, 2015). Specifically, regarding the enactment of aggravating factor fifteen, the Senate Judiciary Committee elucidated that when a defendant has committed “any act of domestic violence,” and “the abuser committed at least one act of domestic violence on more than one occasion,” the aggravating factor is “established for the court to consider when determining the possible length of the prison sentence imposed.” The Legislature clearly intended for courts to apply aggravating factor fifteen to defendants that have an established history of committing domestic violence and are convicted of committing a new offense against a victim of domestic violence.
Thus, in finding that factor fifteen applied, the court did not double-count the element that D.P. was a victim of domestic violence because it separately found defendant had committed prior acts of domestic violence, which were wholly unrelated to defendant’s conviction. The court permissively considered, and found highly relevant, the multiple “active FROs against defendant by former dating partners” and defendant’s “two prior convictions for violations of the domestic violence restraining orders” for “simple assault and harassment” against two former dating partners. We note our Supreme Court has held that “injuries to victims of other crimes of which defendant was convicted, may be used as aggravating factors for sentencing of the defendant’s particular offense.” State v. Lawless (2013). Moreover, courts do “not engage in double-counting when they consider facts showing defendant did more than the minimum the State is required to prove to establish the elements of an offense.” State v. A.T.C., (App. Div. 2018). In considering aggravating factor fifteen’s applicability, the court made the threshold finding that defendant’s present conviction involved an act committed against a victim of domestic violence and then appropriately considered and determined defendant had committed prior acts of domestic violence. For these reasons, we discern no error in the court’s application of aggravating factor fifteen.
An interesting issue is whether the existence of a temporary restraining order (TRO) or orders could be used to find this aggravating factor. The argument in favor of considering a TRO is that probable cause must be found for one to issue and that is like the preponderance of the evidence standard that a judge needs to find for an aggravating factor. The stronger argument against it is that there is clear precedent prohibiting the consideration of dismissed and unproven charges at sentencing. A TRO is unproven until a related FRO issues.
