On December 29, 2021, the New Jersey Supreme Court decided the Middlesex County case of State v. Cynthia Rivera. The principal issue concerned N.J.S.A. 2C:44-1 and whether the defendant’s youth could be an aggravating factor at sentencing.
Justice Solomon wrote for the unanimous Court in relevant part: Turning to the facts presented in this appeal, by applying and affording great weight to aggravating factor three, risk of re-offense, the sentencing judge relied on the nature of the offense and defendant’s role in planning the crime and luring the victims into a trap — facts that were established in the record and sufficient to support a finding of aggravating factor three. Then, in explaining his decision to afford minimal weight to the countervailing mitigating factor seven, the judge stated that “defendant hasn’t had enough time to begin . . . a history of criminal activity, which I most certainly think would have been the case and that being the reason why I gave great weight to the fact that the risk she’ll commit another offense, aggravating factor three.”
This reasoning is based on an impermissible presumption. As noted above, findings of any aggravating or mitigating “factor must be supported by competent, credible evidence in the record” to ensure that a defendant is not sentenced based on “speculation and suspicion.” To support a finding of aggravating factor three, the record must contain evidence demonstrating a likelihood of re-offense — be it expert testimony, or the defendant’s criminal history, lack of remorse, premeditation, or other competent evidence. But in making the finding here, the sentencing court engaged in impermissible speculation that defendant would have engaged in other criminal conduct but did not have the opportunity to do so because of her youth.
The sentencing judge’s impermissible presumption is a common one when dealing with young defendants and violent crime. The judge erred by stating this presumption on the record.
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