A. The Grading Concept

In New Jersey, there are two categories of criminal conduct: disorderly persons offenses and crimes. Disorderly persons offenses, which include petty disorderly persons offenses, are the least serious of the two categories. They are prosecuted in the municipal court in which the offense occurred. The maximum penalty for a disorderly persons offense is a $1,000 fine and 6 months in jail. The maximum penalties for a petty disorderly offense is a $500 fine and 30 days in jail. In these cases, a defendant is not entitled to a jury trial, which is a very important consideration in his/her effort to obtain an acquittal. That is so because local judges, unlike jurors, are less likely to question the integrity of the arresting or investigating government agent of the municipality in which they preside.

Crimes, on the other hand, require a jury trial and certain other procedural events required by the Constitution. Crimes can range from a fourth degree crime to a first degree crime. A fourth degree crime is the least serious; a first degree crime is the most serious. The trial court's sentencing prerogative on certain first degree drug offenses can include life imprisonment with a parole disqualifier of 25 years, which means that a defendant would have to complete 25 years of a prison term before being considered for parole. A fourth degree crime carries a maximum sentence of 18 months. The range of fines is just as disparate. The maximum fine under a first degree crime is $200,000, whereas a fourth degree crime's maximum is $10,000.

B. The Sentencing Range and Presumption Concepts

For hundreds of years, the trial judges in this country enjoyed wide discretion on sentencing day. With the advent of the "war on drugs" and perhaps a recognition that uncontrolled judicial discretion produced an inequality in the administration of justice, both federal and state legislatures began to control the trial court's sentencing prerogative.

Today, New Jersey's criminal code (Criminal Code) structures a trial court's sentencing options in the form of sentencing ranges and sentencing presumptions. An abbreviated analysis of these concepts as they relate to the various categories of crime is presented below. Before beginning, however, it is important to note that certain sections of the Drug Statute and other parts of the Criminal Code can trump these general concepts with specific sentencing "enhancers" and other exceptions or alternatives.

The Criminal Code specifically fixes a minimum and maximum term of imprisonment for each offense. Absent special circumstances that are defined in the statute, a trial court's sentence must be within these ranges, which include the following:

1. First Degree Crimes

The sentencing range is 10 to 20 years. The presumptive term of imprisonment is 15 years. The maximum fine is $200,000.

2. Second Degree Crimes

The sentencing range is 5 to 10 years. The presumptive term of imprisonment is 7 years. The maximum fine is $150,000.

3. Third Degree Crimes

The sentencing range is 3 to 5 years. The presumptive term of imprisonment is 4 years. The maximum fine is $15,000.

4. Fourth Degree Crimes

The sentencing range can not exceed 18 months. The presumptive term of imprisonment is 9 months. The maximum fine is $10,000.

Conviction of a first or second degree crime requires a trial judge to impose a prison sentence. For a first-time offender convicted of a third degree crime that does not deal with certain enumerated offenses (i.e. theft of motor vehicle, eluding a police officer, etc.), the sentencing judge must begin his/her analysis with the presumption that the offender should not receive a prison term. This presumption of non-incarceration will be lost if a person has a prior conviction, including a disorderly person offense. 1 Even if the trial court concludes that the offender is entitled to the presumption of non-incarceration, the court can require a county jail term as a condition of probation, which is a judicially-created principle of law that seems to seriously conflict with the purpose of this statutory presumption.

To better understand these concepts, it may be well to proceed with an example that involves a conviction of a first- degree crime. In that situation, the sentencing judge must first presume that the offender will go to prison. Next, the sentencing judge will recognize that the minimum term of imprisonment is 10 years and the maximum term 20 years and absent some exceptional circumstances, he can not depart from this range. The court's second presumption is to conclude that the sentence should be for a term of 15 years, the presumptive term.

Once these initial perimeters are fixed, the judge will then embark upon a balancing process where the so-called mitigating or good factors are weighed against the aggravating or bad factors. These factors are specifically defined by statute. Generally, they relate to the nature of the person, the nature of the crime and certain social considerations. If the trial court determines that the mitigating factors outweigh the aggravating factors, a sentence that is less than the presumptive term of 15 years can be imposed. On the other hand, if the aggravating factors outweigh the mitigating factors, the presumptive sentence of 15 years can be increased, but may not to exceed 20 years.

Finally, if you are convicted of an Offense under the Drug Statute, you will lose your driver's license for an extended term absent special circumstances

Copyright (c) 2008 Frank Luciano