If you have been arrested for a crime in New Jersey, two concepts undoubtedly need to understand are the Presumption of incarceration and the Presumption of non-incarceration

If you were arrested for a crime that bears the “presumption of incarceration,” unfortunately, you may be facing a jail or prison sentence. However, if you are a first-time offender and were arrested for a crime that bears the “presumption of non-incarceration,” you may be a bit luckier—but not entirely.

Every single crime in New Jersey holds potential incarceration. However, it is not always feasible to presume that a guilty party will see jail time in every case. There are many possible dispositions in New Jersey that do not include prison; however, it’s critical to understand the degree of crime and what presumption applies.

Degrees of Offenses

N.J.S.A. 2C:43-6 provides:

  1. Except as otherwise provided, a person who has been convicted of a crime may be sentenced to imprisonment as follows:
  2. In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years (in New Jersey State Prison);
    2. In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between 5 years and ten years (in New Jersey State Prison);
    3. In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between 3 years and five years (in New Jersey State Prison);
    4. In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months (in New Jersey State Prison).

Note: Disorderly persons and petty disorderly persons offenses are not technically considered “crimes” under the Code. A “crime” in the State of New Jersey is commonly referred to as an “indictable” charge, akin to a felony in other states. Indictable charges are characterized by degrees (first through fourth) – the first degree being the most serious.

Disorderly persons (“DP”) and petty disorderly persons (“PDP”) offenses are akin to misdemeanors in other states. While you cannot be sentenced to a term of incarceration in New Jersey State Prison for a DP or PDP conviction, you can be sentenced to serve time in the county jail. Specifically:

  • A DP is punishable by a term of imprisonment in the county jail of up to 6 months.
  • A PDP is punishable by a term of imprisonment in the county jail of up to 90 days.

Presumption of Incarceration

N.J.S.A. 2C:44-1(e) applies a presumption of incarceration to specific serious crimes. It also applies to cases that come with aggravating circumstances.

First-degree indictable offenses—along with second-degree indictable crimes or some third-degree offenses that are specifically identified within their statute.  Convictions of crimes that require a presumption of incarceration include:

  • First-degree indictable charges
  • Second-degree indictable charges
  • Third-degree eluding police
  • Subsequent convictions for third-degree automobile theft
  • Third-degree organized crime

A convicted person will not be eligible for parole unless 85% of their sentence is fulfilled under the New Jersey Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This NERA applies to serious crimes such as:

  • Sexual assault
  • Carjacking
  • Robbery
  • Aggravated manslaughter
  • Kidnapping

Presumption of Non-incarceration

Under New Jersey section N.J.S.A. 2C:44-1€, a presumption of non-incarceration differs from the presumption of incarceration. This section generally applies to first-time offenders charged with third or fourth-degree crimes.

Please note that the presumption of non-incarceration is solely a presumption. Therefore, if specific circumstances of your case exist, a judge has a legal right to follow or divert from the presumptions.

Hire a New Jersey Criminal Defense Attorney

No matter what your charge entails, hiring an NJ criminal lawyer is imperative. Their analytical knowledge of the law can have you see reduced jail time, if none at all. Even disorderly conduct charges can see jail time; therefore, it is vital to contact a defense attorney today.

A good criminal defense lawyer can explain the potential consequences you may be facing, whether the offense is minor or severe. Sentencing is notoriously complicated and can become quite serious—even life-changing. The consequences of a conviction can alter the course of your entire life.

The Bianchi Law Group is comprised of a team of former prosecutors whose experience will provide you with a well-crafted defense. They will aggressively fight for your legal rights and will not hesitate to bring your case to trial and fight on your behalf to get you the best legal outcome possible. Having the proper legal defense in your corner can make all the difference.

Call the Bianchi Law Group today to discuss your case.

No aspect of this attorney advertisement has been approved by the Supreme Court of New Jersey.