When you plead guilty or are convicted of an indictable criminal offense in New Jersey, you will be sentenced by a Superior Court judge. Prior to sentencing, you will be interviewed by probation and a pre-sentence report will be created which will be presented to the judge at sentencing. This pre-sentence report details the nature of the criminal offense, any prior criminal record, the defendant’s family history, educational history, work history, etc. The pre-sentence report is designed to fully inform the judge of the nature and circumstances of the offense as well as the background of the defendant so that a just and appropriate sentence can be imposed.
When a defendant is being sentenced, the Judge will look at the mitigating and aggravating factors set forth in N.J.S.A. 2C:44-1(a)-(b), when determining an appopriate sentence. It is in the defendant’s best interest to present the judge with mitigating factors in order to increase the chance of receiving a lower sentence.
Aggravating Factors at Sentencing
In determining the proper sentence to be imposed on an offender, the court shall consider the following aggravating circumstances:
- The nature and circumstances of the offense, and the role of the actor, including whether or not it was committed in an especially, heinous, cruel, or depraved manner;
- The gravity and seriousness of the harm inflicted on the victim, including whether or not he defendant knew or reasonably should have known that the victim of the offense was vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or for any other reason was substantially incapable of exercising normal physical or mental power of resistance;
- The risk that the defendant will commit another offense;
- A lesser offense will depreciate the seriousness of the defendant’s offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;
- There is a substantial likelihood that the defendant is involved in organized criminal activity;
- The extent of the defendant’s prior criminal record and the seriousness of the offenses of which he has been convicted;
- The defendant committed the offense under an agreement to either pay or be paid for the commission of the offense and the primary motivation was for financial benefit.
- The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person’s status as a sports official, coach or manager
- The need for deterring the defendant and others from violating the law;
- The offense involved fraudulent or deceptive practices committed against any department or division of the State government;
- In imposing only a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or other as merely the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to commit unlawful practices;
- The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and
- The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight from where the offense occurred, used or was in possession of a stolen motor vehicle.
Mitigating Factors at Sentencing
In determining the proper sentence to be imposed on an offender, the court shall consider the following mitigating circumstances:
- The defendant’s conduct neither caused nor threatened serious harm;
- The defendant did not contemplate that his conduct would cause or threaten serious harm;
- The defendant acted under a strong provocation;
- There were substantial grounds that would help to excuse or justify the defendant’s conduct, though failing to establish a defense;
- The victim of the defendant’s conduct induced or facilitated its commission;
- The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;
- The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
- The defendant’s conduct was the result of circumstances unlikely to recur;
- The character and attitude of the defendant indicate that he is unlikely to commit another offense;
- The defendant is particularly likely to positively respond to probationary treatment;
- The imprisonment of the defendant would cause serious hardship to himself or his dependants;
- The willingness of the defendant to cooperate with law enforcement authorities;
- The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.
Remember, if you enter a negotiated plea with the State and the judge attempts to sentence you to a more severe sentence than the negotiated plea, you as a defendant have the right to withdraw your plea and start the case over. The factual basis and plea that you previously entered is withdrawn and can not be used against you in any manner.