After a conviction for a criminal offense in New Jersey, whether by plea or trial verdict, the crucial next step is sentencing. While statutes define the range of potential penalties based on the degree of the crime, judges don’t impose sentences arbitrarily. New Jersey law, specifically N.J.S.A. 2C:44-1, requires judges to carefully consider and weigh specific aggravating and mitigating factors to determine an appropriate sentence within the legal range. Brett M. Rosen, Esq., certified by the Supreme Court of New Jersey as a Criminal Trial Attorney, serves clients in Union County and the entire state, as well as helps clients navigate this critical phase by advocating for the most favorable sentence possible based on these factors.

908-312-0368 & brett@nynjcriminalcivilesq.com

The Sentencing Process Overview in New Jersey

Before imposing a sentence for an indictable offense (felony-level), the judge typically reviews a detailed Pre-Sentence Report (PSR) prepared by the probation department. This report includes information about the offense, the defendant’s background, criminal history, and often a sentencing recommendation. At the sentencing hearing, the judge will consider:

• Arguments from the prosecutor and defense attorney.
• Statements from the victim (if applicable).
• The Pre-Sentence Report.
• The legally defined aggravating and mitigating factors.

The judge must then weigh these factors and state their findings and the reasons for the sentence imposed on the record. New Jersey law also establishes certain presumptions: a presumption of imprisonment for first and second-degree crimes, and a presumption against imprisonment for first-time offenders convicted of third or fourth-degree crimes (though this can be overcome if aggravating factors substantially outweigh mitigating factors).

Aggravating Factors (N.J.S.A. 2C:44-1a): Reasons for a Harsher Sentence

These are circumstances related to the offense or the offender that, if found by the judge, tend to support a sentence towards the higher end of the range or justify imprisonment where it might otherwise be borderline. Key aggravating factors include:

1. Nature & Circumstances of Offense: Includes whether it was committed in an especially heinous, cruel, or depraved manner.
2. Gravity & Seriousness of Harm: Considers the harm to the victim, especially if the defendant knew the victim was particularly vulnerable (e.g., elderly, disabled, very young).
3. Risk of Re-offense: The likelihood that the defendant will commit another crime.
4. Offense Involved Breach of Public Trust / Position of Trust: If the defendant abused a position of trust or confidence.
5. Organized Criminal Activity: Substantial likelihood the defendant is involved in organized crime.
6. Prior Criminal Record: The extent and seriousness of the defendant’s past criminal convictions.
7. Offense Committed for Payment: Committed pursuant to an agreement to pay or be paid.
8. Offense Against Law Enforcement/Public Servant/Etc.: Committed against police, firefighters, correctional staff, etc., acting in their duties, or because of their status.
9. Need for Deterrence: The need to deter the defendant and others from violating the law.
10. Fraud Against Government: Offense involved fraud/deception against a state agency.
11. Fine as “Cost of Business”: Imposing only a fine would be seen merely as a cost of doing business.
12. Victim 60+ or Disabled: Defendant knew or should have known the victim’s status.
13. Stolen Vehicle Used: Defendant used or possessed a stolen vehicle during the crime or flight.
14. Domestic Violence: Defendant and the victim were in a present or previous dating relationship when the offense occurred and a child under 16 years of age was present. 
15. One or More Acts of DV: Defendant and the victim were in a present or previous dating relationship when the offense occurred and the defendant committed at least one act of domestic violence on more than one occasion. 

Mitigating Factors (N.J.S.A. 2C:44-1b): Reasons for a More Lenient Sentence

These are circumstances that tend to lessen the defendant’s culpability or suggest a lesser sentence is appropriate, potentially moving the sentence towards the lower end of the range or supporting a non-custodial sentence (like probation) where permitted. Key mitigating factors include:

1. No Serious Harm Caused or Threatened: Defendant’s conduct neither caused nor threatened serious harm.
2. No Contemplation of Serious Harm: Defendant did not contemplate their conduct would cause or threaten serious harm.
3. Strong Provocation: Defendant acted under a strong provocation.
4. Grounds Tending to Excuse/Justify: Substantial grounds tending to excuse or justify the conduct, though not establishing a full legal defense.
5. Victim Induced or Facilitated: The victim’s conduct induced or facilitated the commission of the crime.
6. Compensation/Community Service: Defendant has compensated or will compensate the victim, or will participate in community service.
7. No Prior Record / Law-Abiding Life: Defendant has no history of delinquency or criminal activity OR has led a law-abiding life for a substantial period before this offense.
8. Circumstances Unlikely to Recur: Defendant’s conduct was the result of circumstances unlikely to happen again.
9. Character Indicates Unlikely to Re-offend: The character and attitude of the defendant suggest they are unlikely to commit another offense.
10. Likely to Respond to Probation: Defendant is particularly likely to respond affirmatively to probationary treatment.
11. Excessive Hardship: Imprisonment would entail excessive hardship to the defendant or their dependents.
12. Cooperation with Law Enforcement: Defendant’s willingness to cooperate with authorities.
13. Influence by More Mature Person: The conduct of a youthful defendant was substantially influenced by someone more mature.
14. Defendant Under 26: Defendant was under the age of 26 when the offense occurred. 

The Weighing Process & Impact of Mandatory Minimums

The judge doesn’t just count factors; they weigh them qualitatively. One strong aggravating factor might outweigh several weak mitigating ones, or vice-versa. The judge must explain this balancing act.

It’s also crucial to remember that certain offenses trigger mandatory minimum sentences or periods of parole ineligibility (like those under the Graves Act for gun offenses or the No Early Release Act (NERA) for violent crimes). These mandates can significantly limit or override the judge’s discretion based solely on the aggravating and mitigating factors.

Presumption of Incarceration & Extended Term Sentencing

Two critical concepts significantly impacting sentencing outcomes in New Jersey criminal cases, are the Presumption of Incarceration and Extended Term Sentencing. For individuals convicted of more serious offenses, specifically crimes of the first or second degree (and certain specified third-degree crimes like auto theft or eluding under specific conditions), New Jersey law (N.J.S.A. 2C:44-1d) establishes a strong presumption that a sentence of imprisonment will be imposed. This means the judge is generally required by law to sentence the defendant to state prison unless, considering the defendant’s character and condition, the judge finds that imprisonment would constitute a “serious injustice” that overrides the need for deterrence. This presumption makes sentences like probation extremely unlikely for these higher-degree offenses.

Furthermore, under specific circumstances defined in N.J.S.A. 2C:44-3 and 2C:43-7, prosecutors may apply for, and judges may impose, an Extended Term sentence. This allows for a prison term longer than the ordinary maximum sentence for the degree of crime convicted. Common triggers for extended terms include findings that the defendant is a “persistent offender” based on their prior criminal record, or if the crime involved specific aggravating circumstances like firearm use or being committed for payment. Both the high likelihood of mandatory prison under the presumption of incarceration and the potential for significantly increased time via an extended term underscore the gravity of facing serious indictable charges in New Jersey and the vital importance of experienced legal representation throughout the process, especially at sentencing.

How Your Defense Attorney Can Help at Sentencing

Sentencing is a critical stage where skilled legal advocacy can make a profound difference. An experienced defense attorney like Brett M. Rosen, Esq. assists by:

• Thorough Investigation: Gathering evidence relevant not just to guilt or innocence, but also to mitigating factors.
• Presenting Mitigating Evidence: Submitting character letters, proof of employment/education, treatment records, family support documentation, and expert reports (e.g., psychological evaluations) to the court.
• Challenging Aggravating Factors: Contesting the applicability or weight of aggravating factors argued by the prosecution.
• Reviewing the Pre-Sentence Report (PSR): Identifying and correcting any factual errors or biased statements in the PSR.
• Preparing a Sentencing Memorandum: Drafting a persuasive legal document arguing for a specific, lenient sentence based on the mitigating factors, case law, and statutory guidelines.
• Arranging for Character Witnesses: Having supportive individuals testify on the defendant’s behalf at the hearing.
• Making Effective Oral Arguments: Articulating the arguments for leniency clearly and persuasively before the judge.
• Negotiating Plea Agreements: Often, sentencing parameters are negotiated as part of a plea deal, where the attorney argues these factors with the prosecutor beforehand.
• Advocating for Alternatives: Arguing for probation (when permissible), entry into diversionary programs (like Drug Court or Veterans Court), or the lowest possible sentence within the applicable range.

Frequently Asked Questions (FAQ)

Q: What are aggravating and mitigating factors in simple terms? A: Aggravating factors are reasons suggesting a harsher sentence is warranted (e.g., serious harm, prior record). Mitigating factors are reasons suggesting a more lenient sentence is appropriate (e.g., no prior record, unlikely to re-offend, hardship).

Q: Who decides which factors apply and how much weight they get? A: The sentencing judge decides which factors are present based on the evidence and arguments, and how much weight each factor should receive in the balancing process.

Q: Can a judge ignore these factors? A: No. The judge must consider applicable aggravating and mitigating factors and state their findings on the record. A sentence imposed without proper consideration of these factors can potentially be appealed.

Q: Does having a prior record automatically mean a longer sentence? A: It’s a significant aggravating factor (Factor 6), but the judge considers the extent and seriousness of the prior record alongside all other factors. A minor, old conviction weighs less than a recent, serious one. Mitigating factors can still argue for a lower sentence even with a prior record.

Q: How important is having an attorney for sentencing? A: Extremely important. An attorney understands the law, knows how to gather and present mitigating evidence effectively, can challenge the prosecution’s arguments, and advocate persuasively for the best possible outcome within the legal framework. Their role is crucial in presenting the client’s case for leniency.

Contact Brett M. Rosen, Esq. – NJ Sentencing Advocacy

The sentencing phase is your opportunity to present the strongest case for leniency. Brett M. Rosen, Esq. provides skilled and dedicated representation at sentencing hearings in Union County and throughout New Jersey. He works tirelessly to highlight mitigating factors and advocate for hopefully a just outcome. Contact his office today for a free and confidential consultation.

908-312-0368

Disclaimer: This information is for general educational purposes only and does not constitute legal advice. Laws and procedures regarding sentencing can be complex and depend heavily on the specific facts of each situation. If you have questions about sentencing or believe your rights were violated, you must consult with a qualified New Jersey criminal defense attorney, like Brett M. Rosen, Esq., immediately. Do not rely solely on this information. Contacting Brett M. Rosen, Esq. does not create an attorney-client relationship unless a formal agreement is signed. Results are not guaranteed.