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The following is a list of recent sentencing decisions.

New Jersey

State v. Porfirio Jiminez III, N.J.(2007)
Docket No. A-75-2006

Held : In Atkins v. Virginia, 536 U.S. 304 (2002), the U.S. Supreme Court held that the Eighth Amendment prohibits the execution of a mentally retarded defendant. However, the Atkins court left it to the states to adopt procedures for determining whether a defendant is mentally retarded. Thus, in State v. Jimenez, 188 N.J. 390 (2006), which is also known as Jimenez II, the New Jersey Supreme Court set forth the procedure to be used in New Jersey when determining whether a capital defendant is mentally retarded and thus is not eligible for the death penalty. The Jimenez II court held that the defendant has the burden of proving that he or she is mentally retarded by a preponderance of the evidence after the guilt phase but before the penalty phase. However, the Jimenez II court did not state whether there had to be a unanimous jury finding or whether only one juror had to find that the defendant is mentally retarded. Thus, Jimenez moved for clarification of the Supreme Court's opinion. The Supreme Court granted Jimenez's motion for clarification. The court concluded that a finding of mental retardation "is like a dispositive mitigating factor." Thus, the court determined that, if a single juror finds that the defendant has met his or her burden of proving mental retardation by a preponderance of the evidence, the defendant is not eligible to receive the death penalty.

State v. Jeffrey Drury, N.J. (2007)
Docket No. A-110-2005

Held: In this appeal, the Supreme Court held that carjacking is not a predicate offense elevating a second degree sexual assault to a first degree aggravated sexual assault. Because N.J.S.A. 2C:14-2a(3) does not include carjacking as an enumerated predicate offense, the plain language of the statute does not support a conclusion that committing a sexual assault during a carjacking is a first degree crime. The Court rejected the State’s argument that carjacking is simply a form of robbery, which is a listed predicate, finding the similarities between the two offenses insufficient for such a conclusion. The Court further observed that legislative history also supported its ruling. Finally, the Court remanded the matter for resentencing on defendant’s kidnapping and terroristic threats convictions pursuant to State v. Natale, 184 N.J. 458 (2005).

State v. Abdul Webster, N.J. (2007)
Docket No. A-37-06

Held: In a unanimous per curiam opinion, the Supreme Court held that commutation and work credits do not reduce a NERA parole ineligibility period.  The Court affirmed the Appellate Division for substantially the same reasons set forth in its reported decision (383 N.J. Super. 432 (App. Div. 2006)).  The Appellate Division had held that under N.J.S.A. 30:4-123.51a, commutation and work credits could not reduce a mandatory minimum term but could only be awarded after the term’s expiration.  The Appellate Division also rejected defendant’s argument that the deprivation of commutation and work credits violated his due process rights under the state and federal constitutions.

State v. Brett Kearns, __ N.J. Super. __(App. Div. 2007)
Docket No. A-5034-04T4

Held: In this appeal, the Appellate Division, on the State’s appeal from defendant’s sentence following a revocation of probation, agreed that the trial judge erred in failing to impose a mandatory NERA parole disqualifier. Defendant pleaded guilty to second degree robbery, and was sentenced to a minimum five year term with an 85% period of parole ineligibility. Defendant succeeded in moving to reduce his sentence to probation, but later pleaded guilty to violating that probation. The trial judge rejected the State’s request to reinstate the original sentence, and imposed a four and a half year sentence with a 50% period of parole ineligibility. Reducing defendant’s sentence under Rule 3:21-10(a) resulted only in a suspension of his original sentence pending successful completion of his probationary term. Once he violated probation and was resentenced, a NERA sentence was required. State v. Vasquez, 129 N.J. 189 (1992), does not allow trial judges to impose a shorter parole bar than that required by NERA, and N.J.S.A. 2C:43-7.2a manifest a clear and unmistakable legislative intent that courts shall fix a minimum term of 85% for enumerated first and second degree crimes. Parole ineligibility under NERA is not waivable, and it does not matter that the term of incarceration is imposed following a revocation of probation on a NERA-mandated crime. Because the NERA parole disqualifier was compulsory, defendant’s sentence was illegal and therefore subject to correction at any time.

State v.  James Thomas,   N.J. Super.  (App. Div. 2007)
Docket No. A-6422-04T4

Held:  In this cross-appeal, the Appellate Division addressed and rejected two constitutional challenges to the Attorney General’s Brimage Guidelines. The first Brimage issue raised by the State was whether the trial court erred by imposing a lower sentence than that negotiated between the State and defendant pursuant to the Brimage Guidelines and based on the court's belief that the agreement violated defendant's constitutional rights because it imposed a greater sentence for having invoked his right to a suppression hearing.  The Appellate Division held that the trial court erred in imposing the lesser sentence.  Specifically, the Appellate Division rejected the trial court's reasoning that defendant has been "penalized" for exercising his constitutional right to file a motion to suppress. The Appellate Division reasoned that prosecutors may . . . reasonably consider [the] early disposition of cases as an important law-enforcement objective when entering into plea agreements with defendants.

The second Brimage issue, raised by defendant, was whether the Brimage Guidelines, which were promulgated by the Attorney General to address negotiated-sentence agreements violate the principles of Blakely v.
Washington and State v. Natale.   The Appellate Division determined that the Brimage Guidelines do not violate the recent cases affecting
sentencing.  Having negotiated a particular sentence with the prosecutor, defendant waived the right to have a jury find the facts necessary to support that sentence. The Appellate Division noted further that defendant did not receive a sentence greater than the "presumptive" or mid-range term because of the prosecutor's reliance on any aggravating or
enhancing factor. Rather, defendant received the maximum sentence solely because of the timing of the plea.

State v.  Eliezer Thomas,  N.J. Super.  (App. Div. 2007)
Docket No. A-3152-04T5

Held:  In this appeal, the Appellate Division relied on the overwhelming weight of federal authority to conclude that the right to a jury trial guaranteed by the Sixth Amendment does not bar a sentencing judge from determining the amount of restitution in a criminal case.


State v.  Hector A. Velasquez,   N.J. Super.  (App. Div. 2007)
Docket No. A-3982-01T3

Held:  In this appeal, the Appellate Division  accepted defendant’s claim that the two extended terms of imprisonment pursuant to N.J.S.A. 2C:44-3g were imposed in violation of his right to notice and indictment guaranteed by the State Constitution.   N.J.S.A. 2C:44-3g requires the imposition of an extended term of  imprisonment where the defendant has been convicted of sexual assault or criminal sexual contact and the predicate crime involves either 1) violence, or 2) the threat of violence, and 3) the victim of the crime was 16 years of age or younger.  In this case, the Appellate Division observed that the crimes for which defendant received extended-term sentences do not include the elements of “violence” or “threat of violence” as defined by N.J.S.A. 2C:44-3g.  Instead, his crimes were established by proof that he sexually penetrated a child who is at least thirteen but younger than sixteen and that the defendant was least four years older than that child. Because the extended term raised the maximum sentence beyond the range ordinarily applicable to the underlying offense, the Appellate Division concluded that under Apprendi v. New Jersey the findings of violence and age must be construed as the “functional equivalent” of elements.  Accordingly, defendant was entitled to both notice and explicit findings by both the grand jurors and the petit jurors with respect to these issues.  The Appellate Division, however, rejected defendant's argument that notice was required with respect to those findings which underpinned the parole ineligibility period authorized by the No Early Release Act.

State v.  James Hemphill,   N.J. Super.  (App. Div. 2007)
Docket No. A6297-04T4

Held:  In this appeal, the Appellate Division held that Rule 3:21-8, which requires that a defendant receive credit on the term of a custodial sentence for any time served in custody in jail between arrest and the imposition of sentence, applies when he or she is held in a foreign country on a New Jersey detainer. Accordingly, defendant is entitled to additional credit for time spent in custody in Edinburgh Prison.

In The Matter of The Civil Commitment of T.J.N.,   N.J. Super. (App. Div. 2007)
Docket No. A6297-04T4

Held:  In this appeal, the Appellate Division rejected T.J.N.’s claim that his civil commitment under the Sexually Violent Predator Act (SVPA) must be vacated because the certificate used in support of the petition for temporary commitment failed to allege that T.J.N. was "highly likely to recidivate in the reasonably foreseeable future.” T.J.N. was serving a period of incarceration and was scheduled to "max out" when the petition was filed.  The Appellate Division rejected the claim as unfounded based on the record below. Moreover, the Appellate Division emphasized that it has previously sustained the admissibility of hearsay as part of an expert witness' testimony at SVPA commitment hearings. Moreover, the Appellate Division emphasized that the consequences of a commitment under the Act and the significant liberty interests at stake require protection as a matter of due process. However, the commitment proceedings are not part of a "criminal prosecution" giving rise to Confrontation Clause protection under the Sixth Amendment to the Federal Constitution or Article 1, para. 10 of the New Jersey Constitution. The order of civil commitment must be based on "clear and convincing\evidence that an individual who has been convicted of a sexually violent offense[] suffers from a mental abnormality or personality disorder[] and presently has serious difficulty controlling harmful sexually violent. The record disclosed no basis to upset the order under review.

State v. Charles A. Watkins,  N.J. Super.   (App. Div. 2007)
Docket No. A3853-05T4

Held:   In this appeal the Appellate Division reversed the denial of  defendant’s entry into PTI and remanded for reconsideration.  A key element in defendant’s rejection was the State’s conclusion that his crimes‑‑ theft by deception and unsworn falsification involving the illegal receipt of unemployment benefits for a four‑month period ‑‑ constituted a "continuing criminal enterprise" pursuant to Guideline 3(i)(2); such a conclusion generally constitutes sufficient justification for rejection from pretrial intervention.  Although defendant certified on a bi‑weekly basis that he was unemployed, and he did so for four months, this panel concluded that his conduct did not constitute a continuing criminal enterprise as set forth in the guideline.  Acknowledging that State v. Bender, 80 N.J. 84 (1979), held that the crimes must be undertaken for the purpose of enriching defendant in some material way and, taken literally, defendant clearly fit this definition pursuant to the guideline, the Appellate Division limited that Supreme Court case to its factual context (Bender involved a four‑year time period).  Parsing the words "continuing" and "enterprise," the Appellate Division concluded that defendant’s actions did not fit that concept "since it was not a ‘continuing’ enterprise . . .due to the relatively brief period of time it persisted."  Thus the court remanded the matter so that the prosecutor could reconsider defendant’s application without considering Guideline 3(i)(2).

State v. John O’Hagen, N.J. (2007)
Docket No. A-70-05

A.A. v. Attorney General Of New Jersey, et al. N.J. (2007)
Docket No. A-104-05

Held: In these consolidated appeals, the Supreme Court of New Jersey concluded that the New Jersey DNA Database and Databank Act of 1994, does not violate the rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1and 7 of the New Jersey Constitution. In adopting the Act, the Legislature declared that “DNA databanks are an important tool in criminal investigations and in deterring and detecting recidivist acts.” Under the Act, DNA samples and test results are confidential   and disclosure to any person or agency not entitled to receive it is a disorderly person’s offense. In addition to establishing the State DNA database, the Act requires that the DNA information be forwarded to the FBI for inclusion in the Combined DNA Index System (CODIS), the FBI’s national DNA identification index system.  Although  a  blood test or cheek swab for purposes of obtaining a DNA sample is a search. the Act’s requirement for collection and analysis of DNA samples from convicted persons is constitutional under both the Federal and State Constitutions. The intrusions on a person’s privacy interest caused by the DNA testing are similar to the intrusions a convicted person will undergo in the taking and maintaining of fingerprints and a photograph. The DNA test results are merely a more accurate way of identifying the individual. The State’s interest in maintaining a database that will permit accurate identification of  persons at the scene of a crime is far greater than the DNA donor’s interest. Moreover, the limitations imposed on the use of the test results reduce the potential intrusion on the convicted person.

State  v.  David Liviaz,    N.J. Super.  (App. Div. 2007)
Docket No. A-5135-05T1

State v. Dennis Clarios-Benetiz,   N.J. Super.  (App. Div. 2007)
Docket No. A-5136-05T1

Held:  In these consolidated appeals, the Appellate Division reversed two Law Division orders admitting defendants to the Pretrial Intervention Program ("PTI") over the objection of the Burlington County Prosecutor. The trial judge found that in both cases the prosecutor's action was a patent and gross abuse of his discretion because, without giving sufficient weight to other relevant factors, he rejected the applications on the sole ground that the defendants were illegal aliens.  Although the Appellate Division agreed that PTI may not be denied solely because a defendant is an illegal alien, it reversed both orders because the court was satisfied that circumstance can be a relevant factor and that in each case the prosecutor reasonably took it into account in addition to other relevant factors, reaching conclusions that were well within his discretion.

State  v.  Manuel B. Ortiz,    N.J. Super.  (App. Div. 2006)
Docket No. 4941-2006

Held:  In this appeal, the Appellate Division concluded that where a defendant is adjudicated not guilty by reason of insanity and  released pursuant to N.J.S.A. 2C:4-8b(2) upon a judicial finding that he is not a danger to the community or himself, a trial court cannot subject him to  periodic reviews, i.e., Krol hearings,  as a condition of release.  Such hearings are only authorized when the court concludes that the defendant cannot be released with or without supervision without posing a danger to the community or to himself and accordingly commits the defendant to a mental health facility.  

State v. Porfirio Jiminez, __ N.J. (2006)
Docket No. A-50-2006

Held:In this appeal, the Supreme Court of New Jersey declared that a capital defendant seeking to avoid a death sentence by claiming that he is mentally retarded has the burden of proving by a preponderance of the evidence that he falls into that category. Bringing New Jersey in line with most other states that have considered the issue, the New Jersey Supreme Court overturned a lower court's ruling that lack of mental retardation is equivalent to an offense element and hence must be proved by the state beyond a reasonable doubt. In Atkins v. Virginia, the U.S. Supreme Court declared that the cruel and unusual punishment clause of the Eighth Amendment bars the execution of mentally retarded people. The Atkins Court specifically left it up to the states to define mental retardation and to develop procedures for making retardation determinations in individual cases. Since that time, every other state that has looked at the issue has held that a defendant must bear the burden of proving an Atkins claim, though those courts differ as to the weight of the burden defendants carry. The Court said that a claim of mental retardation is much like a claim of insanity in important respects. Insanity is an affirmative defense that a defendant must prove, it explained, and this is because "the claim is unrelated to the underlying elements of the crime that the state must prove beyond a reasonable doubt in every case." As with an insanity defense, the Court continued, where a mental retardation claim is made, the state still must prove all the elements of the offense, including a capital trigger.

In The Matter of Registrant T.T., N.J. (2006)

Held: In this appeal, the Supreme Court of New Jersey held that Megan’s Law extends beyond purely sexual offenses and sweeps in other offenders who target children. And, although the Legislature used the term “sex offender” as a catchall description for all those who commit Megan’s Law offenses, the statute specifically denominates certain acts that have no sexual component as “sex offenses” subject to its purview. Accordingly, it is clear that the sexual motive engrafted by the Appellate Division as a prerequisite to Megan’s Law applicability does not exist. By its very terms, Megan’s Law denominates T.T.’s crime - the act of sexual penetration with a victim under the age of 13 years - as a predicate offense. T.T.’s sexual motivation may be relevant to his treatment and risk of re-offense and thus to tiering, but it does not affect the fact that he committed the predicate offense of aggravated sexual assault.

State v. Marshall Rountree, N.J. Super. (App. Div. 2006)
Docket Nos. A-2043-02T1, A-5014, 03T1
In this consolidated appeal, the Appellate Division rejected the claim made by defendant, a second offender under the Graves Act, that the Supreme Court of New Jersey's decision in State v. Franklin, 184 N.J.. 516 (2005), and, implicitly, the strictures enunciated by the United States Supreme Court in Apprendi v. New Jersey and Blakely v. Washington, should apply retroactively to cases on collateral, i.e., post-conviction, review. In Franklin, the Supreme Court of New Jersey held that the Sixth Amendment right to a jury trial requires that a jury, not a judge, make the predicate finding that a defendant possessed or used a gun in repeat Graves Act cases. In this case, the Appellate Division declined defendant's invitation to disregard the New Jersey Supreme Court's explicit pronouncement in Franklin that its holding would be given "pipeline retroactivity," that is, would apply only to cases on direct appeal. The Appellate Division derived further support from Schriro v. Summerlin, 542 U.S. 348 (2004), wherein the United States Supreme Court determined that retroactive application of Apprendi collateral review is not required under the United States Constitution.

State v. Chris Thomas,    N.J.   (2006)
Docket No. A-43-05

State v. Maurice Pierce,   N.J.   (2006)
Docket. No. A-18-0

Held: In these consolidated appeals, the Supreme Court of New Jersey held that the Code’s extended term statutes for persistent offenders, N.J.S.A. 2C:44-3a, and repeat drug offenders, N.J.S.A. 2C:43-6f, are constitutional under the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004).

In Thomas, the Court unanimously found that a sentencing court may constitutionally find as fact the existence of a prior conviction for purposes of determining a defendant’s eligibility for a mandatory extended term under the repeat drug offender statute. The Court also addressed the use of prior convictions as a basis to find that aggravating factors (3) and (9) support the imposition of a pre-Natale II sentence above the presumptive term, an issue left unresolved in State v. Abdullah, 184 N.J. 497 (2005). The Court construed the Blakely prior conviction exception narrowly, and held that judicial fact-finding must be limited to the finding of the prior conviction’s existence. Thus, defendants who were sentenced prior to Natale to a sentence above the presumptive term on the basis of any aggravating factors, including (3), (6) or (9), are entitled to a remand for resentencing. The Court further explained that post-Natale sentencing practice will permit sentencing courts to find all aggravating factors, whether or not based “exclusively” on the fact of a prior conviction.

In Pierce, a majority of the Supreme Court upheld the constitutionality of the discretionary persistent offender extended term statute. The Court found that a sentencing judge, rather than a jury, can constitutionally consider under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely the objective facts about a defendant’s prior convictions, such as date of convictions, his or her age when the offenses were committed, and the elements and degrees of the offenses, to determine whether the statutory requirements for an extended term are satisfied.

The Court further determined that the “need to protect the public” finding, which in State v. Dunbar, 108 N.J. 80 (1987), it imposed to guide the trial courts in sentencing a defendant to a discretionary extended term, was no longer a precondition to a defendant’s eligibility for such a term. Instead, the Court determined that the “protection of the public” finding is “no different from judicial findings as to aggravating factors.” Therefore, sentencing courts may consider it when assessing the appropriate length of a defendant’s base extended term as part of the court’s finding and weighing of aggravating and mitigating factors.

The Court also restated the extended-term sentencing procedures established in Dunbar and held that, on an application for a persistent offender extended term sentence, the trial court must first review defendant’s criminal record of convictions to determine whether he or she is statutorily eligible. If so, the maximum sentence to which defendant may be subject is the top of the extended-term range. The court must then determine the appropriate sentence, within the expanded range of sentences available from the bottom of the ordinary-term range to the top of the extended-term range, by assessing the aggravating and mitigating factors, including the deterrent need to protect the public. The Court adopted the remedy used in Natale I and determined that Pierce was entitled to a remand for re-sentencing “but only in respect of reconsideration of the appropriate sentence for defendant within the expanded range of sentences available from the bottom of the ordinary- term to the top of the extended-term range.”

State v. Elaine D. Morales-Pena, N.J. Super. (App. Div. 2006)
Docket No. A-5689-04T2

Held: In this appeal, the Appellate Division reversed a trial court’s order enrolling defendant into the Pretrial Intervention Program (PTI) over the prosecutor’s objection in a case where the defendant was charged in an accusation with, among other related motor vehicle violations, fourth- degree assault by auto – leaving the scene of an accident. The trial court ordered defendant’s admission into PTI after his entry of a guilty plea to assault by auto. After initially observing that the PTI appeal should have been resolved in the trial court before the guilty plea was entered, the Appellate Division concluded that the prosecutor’s objection was prudent given that the disposition of motor vehicle charges in municipal court could jeopardize the indictable charges if defendant did not successfully complete the PTI program.

State v. John H. McKeon, Jr., __ N.J.Super. __ (App. Div. 2006)
Docket No. A-5658-04T1

In this appeal, the Appellate Division concluded that a defendant may not be excluded, pursuant to N.J.S.A. 2C:43-12g, from entry into a pretrial intervention program (PTI) solely because he previously received the benefit of a supervisory treatment program, or its equivalent, in another state when charged with an offense that would not have been a crime in this State.

State In the Interest of D.A., __ N.J. Super. __ (App. Div. 2006)
Docket No. A-5450-03T4

In this appeal, the Appellate Division affirmed the trial court’s. imposition of a special condition of probation requiring the juvenile to disclose his status as a Megan's Law offender to the parents of any girl he dates. The juvenile was adjudicated delinquent of an offense that required registration pursuant to N.J.S.A. 2C:7-2 to -5 (Megan's Law). The Appellate Division specifically held that the special condition was consistent with the Code of Juvenile Justice and did not violate the limited disclosure provision of the Code. The Court also held that the special condition did not usurp the Megan's Law tier classification system.

State v. Heriberto Soto, __ N.J. Super. __ (App. Div. 2006)
Docket. No. A-2637-03T4
Held: In this appeal, the Appellate Division upheld the constitutionality of N.J.S.A. 2C:39-4.1d, the anti-merger statute. Thus, defendant’s convictions for possession of drugs with intent to distribute within 1,000 feet of a school and possession of a firearm while in the course of committing a school-zone drug offense did not merge.

State v. Heriberto Soto, __ N.J. Super. __ (App. Div. 2006)
Docket No. A-2638-03T4
Held: In this appeal, the Appellate Division upheld defendant’s eighteen- month sentence imposed in accordance with a negotiated plea agreement. Under that agreement, defendant entered a plea of guilty to one count of fourth degree aggravated assault. The Appellate Division rejected defendant’s claim that his sentence, the maximum which could be imposed for a fourth-degree crime, ran afoul of the Sixth Amendment and the holdings of State v. Natale and Blakely v. Washington. The Court concluded that by agreeing to a plea agreement containing a sentencing recommendation of eighteen months with an equivalent parole disqualifier, rather than proceeding to trial, defendant waived any objection that the sentence was excessive or otherwise constitutionally infirm. In addition, the Appellate Division vacated the trial court’s imposition of the eighteen-month period of parole ineligibility, concluding that it was illegal under N.J.S.A. 2C:43-6(b), which specifies that a discretionary period of parole ineligibility may not exceed one-half the term of incarceration. Notably, the Court did not reference N.J.S.A. 2C:43-6c, the “Graves Act,” which compels the imposition of a parole ineligibility period of eighteen months in the case of a fourth-degree crime where the defendant possessed a firearm during the commission of the crime.

In The Matter Of the Forfeiture of Public Office of Francois D. Nunez, __ N.J. Super. __ (App. Div. 2006)
Docket No. A-6187-04T1
Held: In this appeal, the Appellate Division affirmed the trial court’s refusal to enforce a public employer’s belated application to seek the forfeiture of an employee’s position based on the employee’s conviction after it was expunged. The Appellate Division specifically concluded that the expungement foreclosed forfeiture of the employee’s position because the purpose of expungement is the elimination of the collateral consequences of a criminal conviction, and forfeiture of public employment is a collateral consequence of a criminal conviction.

State v. Chretien Brown, __ N.J. Super. __ (App. Div. 2006)
Docket No. A-4885-03T4

In this appeal, the Appellate Division reversed the trial court’s denial of defendant’s application for a modification of his custodial sentence pursuant to Rule 3:21-10(b)(1) to permit his entry into a substance abuse treatment facility. Specifically, the trial court concluded that it lacked jurisdiction to entertain the application because defendant had yet to complete the ten-year period of parole ineligibility of his twenty-year sentence. The period of parole ineligibility was imposed pursuant to the Graves Act, which requires that a trial judge fix a period of parole ineligibility, i.e., a minimum term, at, or between, one-third and one-half of the sentence upon a finding that the defendant committed the underlying offense with a firearm. The Appellate Division concluded that any period of parole ineligibility fixed above one-third of the base sentence was “discretionary” rather than “required” notwithstanding the mandatory application of the Graves Act itself. Consequently, the trial court possessed jurisdiction to entertain defendant’s motion for change of sentence.

State In The Interest of M.C., __ N.J. Super. __ (App. Div. 2006)
Docket No. A-7024-03T5

In this appeal, the Appellate Division concluded that although the Code of Juvenile Justice does not explicitly authorize the imposition of suspended sentences, such dispositions are permissible given the Code’s fundamental rehabilitative and penal objectives.

A.A. v. Attorney General of New Jersey, et al., __ N.J. Super. __ (App. Div. 2006)
Docket No. 2320-04T3

In this appeal, the Appellate Division reversed the trial court and upheld from constitutional challenge the DNA Database and Databank Act, N.J.S.A. 53:1-20.17 to 20.28. Plaintiffs became subject to the Act when it was amended, effective September 22, 2003, to apply to any person serving a sentence of supervision as a consequence of conviction or adjudication of delinquency based on conduct classified as a crime. The trial judge held that the Act would deprive offenders of due process and permit unreasonable searches unless modified to include a right of expungement upon completion of sentence.

State v. Shannon K. Luthe, __ N.J. Super. __ (App. Div. 2006)
Docket No. A-3695-04T2

In this appeal, the Appellate Division concluded that Michael’s Law, N.J.S.A. 39:4-50(a)(3), does not authorize non-custodial alternatives to the mandatory 180 days confinement, whether that confinement be served entirely in jail or partially in an inpatient facility. There is no statutory authority for work release programs, out-patient treatment, and the like as an alternative.

State v. Jose Rodriguez, __ N.J. Super. __ (App. Div. 2006)
Docket No. A-5914-01T3

In this appeal, the Appellate Division concluded that future disqualification from public employment mandated by N.J.S.A. 2C:51-2d, was appropriately imposed on an off-duty police officer who was convicted of third-degree leaving the scene of a fatal accident. The offense, which required proof beyond a reasonable doubt that defendant knew that there had been an accident and that he knowingly left the scene, involved or touched upon his public office within the meaning of the statute.

State v. Abdul Webster, __ N.J. Super. __ (App. Div. 2006)
Docket No. A-5686-03T4

In this appeal, the Appellate Division rejected defendant’s request to reduce his period of parole ineligibility imposed pursuant to the No Early Release Act (NERA) by the application of commutation and work credits. Specifically, the Appellate Division concluded after a review of relevant legislative history, precedent, and statutory language that neither the NERA statute, N.J.S.A. 2C:43-7.2, nor the relevant provision of the Parole Act, N.J.S.A. 30:4-123.51a, supported the result defendant sought.. Accordingly, there was no basis to disturb the Parole Board's practice of applying such credits only to defendant's base term, i.e., the "back end" of his sentence.

State v. Justice Cannarella, __ N.J. __ (2006)
Docket No. A-6-05

N.J.S.A. 2C:12-1(b)(5)(d), the provision of the Code which elevates the disorderly persons offense of simple assault to third-degree aggravated assault when committed upon “any school board member, school administrator, teacher, school bus driver, or other employee of a school board” does not apply where the assault is committed against a public school teacher.

State v. Charles Owens
N.J. Super. (App. Div. 2005)
Docket No. A-4694-03T4

Defendant’s mandatory extended term of imprisonment imposed pursuant to N.J.S.A. 2C:43-6f vacated as illegal because the predicate drug conviction was entered during the same proceeding as the conviction for which defendant was sentenced to the extended term. The first conviction could not be construed as a “prior conviction” within the plain meaning of the extended term provision.

United States Supreme Court

United States Supreme Court

Rita v. United States, U.S. (2007)

Held: In this appeal, the United States Supreme Court ruled that a prison sentence falling within the federal sentencing guidelines may be presumed to be a reasonable sentence on appeal, but the presumption of reasonableness is not binding.

James  v.  United States,   U.S.   (2007)

Held:  In this appeal, by a vote of 5-4, the Supreme Court  ruled against Alphonso James, a Florida man with three prior felony convictions, including one for attempted burglary. As long as an offense presents a serious potential risk of injury to another person, it satisfies the requirements of the Armed Career Criminal Act, Justice Samuel Alito wrote in the majority opinion. Attempted burglary under Florida law satisfies the requirement, Alito added. In dissent, Justice Antonin Scalia said the boundaries of the act are "ill-defined" and that the Court's majority failed to provide guidance that can be applied consistently by the hundreds of district judges that impose sentences every day.

Cunningham v.  California,    U.S.__(2007)
Held:  In a long-awaited decision, the United States Supreme Court, concluded that California's determinate sentencing law (DSL) violates the Constitution's Sixth Amendment right to a jury trial under the principles established in Apprendi v. New Jersey and subsequently refined in Blakely v. Washington and United States v. Booker. At issue in Cunningham is a sentencing scheme that authorizes three terms of imprisonment — a lower, middle, and upper term sentence. Much the same as the original  sentencing provisions in New Jersey's Code of Criminal Justice, the DSL directs the sentencing judge to begin with the middle term, and to move from that term only when the court finds and places on the record facts — whether related to the offense or offender —  that sustain statutory and non-statutory mitigating and aggravating factors. A judge may impose an upper term sentence only when he or she finds an aggravating factor. In addition, these findings must, under the DSL, be established by a preponderance of the evidence. Writing for the majority, Justice Ginsburg concluded that "the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum. Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi's bright-line rule . . . . " Regarding the appropriate remedy, Justice Ginsburg stated that the ball lies in California's court. She further observed that while some states have responded to Apprendi by requiring the jury, rather than a judge, to find certain facts relevant to sentencing, "others have chosen to permit judges to genuinely 'exercise broad discretion . . ." within a statutory range which 'everyone agrees' encounters no Sixth Amendment shoal."  Although not cited in the majority decision, the Supreme Court of New Jersey's decision in State v. Natale, which modified New Jersey's sentencing scheme by eliminating the presumptive term provision from the Code, would appear to be vindicated in all respects. In short, the Cunningham decision will have, in all likelihood, no impact on New Jersey sentencing law and practice.

Lopez  v.  Gonzales,    U.S.__(2006)
Held:  In this appeal, the United States Supreme Court concluded that the term "aggravated felony," which is defined in accordance with federal sentencing statutes and the U.S. Sentencing Guidelines as including "any felony punishable under the Controlled Substances Act," does not include state crimes that are treated as felonies under state law but that would be treated as a misdemeanor under the CSA--at least not for purposes of deportation. An alien who has a prior conviction for an "aggravated felony" is subject to enhanced punishment under the federal Sentencing Guidelines and to reduced opportunities to challenge removal. The definition of "aggravated felony" in the guidelines cross-references to the definition in the Immigration and Nationality Act, which states that "aggravated felony" means "illicit trafficking in a controlled substance... including a drug trafficking crime" as defined in a federal firearms statute, 18 U.S.C. §924(c)(2). Section 924(c)(2), in turn, says a "drug trafficking crime" includes "any felony punishable under the Controlled Substances Act."  The court pointed out that, in the absence of a statutory definition of the general term "illicit trafficking," canons of statutory construction require the court to give weight to the ordinary meaning of the term. The court said that one of the problems with the government's argument was "its incoherence with any commonsense conception of 'illicit trafficking.' " Ordinarily, the court continued, "trafficking" connotes some sort of commerce, and commerce plays no part in many state possession statutes  like the one under which the alien in this case was convicted

Hill v. McDonough, __ U.S. __ (2006)
Hill was convicted of murder and sentenced to death in a Florida state court in 1983. In 2005, after Hill's appeals and habeas petition had failed, Florida Governor Jeb Bush signed Hill’s death warrant, officially setting an execution date. Four days before his execution date, Hill applied to the Court of Appeals for the Eleventh Circuit for leave to file a second habeas petition. On the same day, Hill filed a civil rights claim in district court challenging Florida’s imposition of the death penalty under the Eighth and Fourteenth Amendments, arguing that three of the chemicals used for lethal injection—sodium pentathanol, pancuronium bromide, and potassium chloride—inflict unnecessary pain. The following day, the district court dismissed Hill’s complaint, holding that it lacked jurisdiction over the claim because Hill's action was the functional equivalent of a successive habeas petition and the Eleventh Circuit had not granted him leave to file a successive petition. On the day scheduled for Hill’s execution, the Eleventh Circuit denied Hill’s application to file a second habeas petition. The Supreme Court ruled unanimously that Hill is entitled to challenge the state's lethal injection method as a Section 1983 federal civil rights action, rather than being limited to the more restricted habeas corpus route. But the Court, citing the interest of the state and crime victims in "timely enforcement of a sentence," cautioned that its ruling should not be read to encourage automatic stays or long delays in executions.

House v. Bell, __ U.S. __ (2006)
House was convicted of murdering his neighbor based on predominantly circumstantial evidence. During a complex period of post- conviction appeals, motions and evidentiary hearings, House produced new evidence that he claimed showed his innocence. For example, some blood samples used during the original trial were later found to have been mishandled (spilled), but the reviewing court concluded that this spillage occurred after testing had been done and so the evidence had not been compromised. The Sixth Circuit Court of Appeals eventually denied House's petition for habeas corpus, holding that House had failed to meet the standard set in Schlup v. Delo, which requires the petitioner to show "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." In a 5-3 decision, a majority of the Court disagreed. Writing for the majority, Justice Kennedy described it as the “rare case” where the state’s case, when examined in light of the new evidence, was sufficiently undermined so that “it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.”


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