The New Jersey Criminal Code provides statutory presumptions of imprisonment and non-imprisonment for certain degrees of crimes (first, second, third and fourth) and certain types of crimes.  In imposing a sentence after a conviction, the trial judge first considers whether the offense is subject to the presumption of imprisonment, set forth in N.J.S.A. 2C:44-1(d), or the presumption of non-imprisonment, set forth in N.J.S.A. 2C:44-1(e).

N.J.S.A. 2C:44-1(d) (emphasis added), provides in part that:

Presumption of imprisonment. The court shall deal with a person who has been convicted of a crime of the first or second degree, or a crime of the third degree where the court finds that the aggravating factor in paragraph (5) [substantial likelihood that the defendant is involved in organized crime], (14) [domestic violence in the presence of a child under 16 years of age], or (15) [domestic violence under N.J.S.A. 2C:25-19 and the defendant committed more than one act of domestic violence on more than one occasion] of subsection a. of this section applies, by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that the defendant’s imprisonment would be a serious injustice which overrides the need to deter such conduct by others. . . . .

To overcome the statutory presumption of imprisonment set forth in N.J.S.A. 2C:44-1(d), the court considers whether the “defendant’s imprisonment would be a serious injustice which overrides the need to deter such conduct by others. . . .”  This exception “applies only in ‘truly extraordinary and unanticipated circumstances,’ . . . ‘where the ‘human cost’ of punishing a particular defendant to deter others from committing his offense would be ‘too great.’” State v. Nance, 228 N.J. 378, 395 (2017) (quoting State v. Jabbour, 118 N.J. 1, 7 (1990), State v. Roth, 95 N.J. 334, 358 (1984)). To satisfy the standard, the defendant should show that his character and condition is “so idiosyncratic that incarceration or extended imprisonment for the purposes of general deterrence is not warranted.”  State v. Jarbath, 114 N.J. 394, 408 (1989) (emphasis added).

Conversely, N.J.S.A. 2C:44-1(e) (emphasis added) provides in part that:

The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character, and condition of the defendant, it is of the opinion that imprisonment is necessary for the protection of the public under the criteria set forth in subsection a. of this section, except that this subsection shall not apply if the court finds that the aggravating factor in paragraph (5) [substantial likelihood that the defendant is involved in organized crime], (14) [domestic violence in the presence of a child under 16 years of age], or (15) [domestic violence under N.J.S.A. 2C:25-19 and the defendant committed more than one act of domestic violence on more than one occasion], or if the person is convicted of any of the following crimes of the third degree:  theft of a motor vehicle; unlawful taking of a motor vehicle; eluding; strict liability vehicular homicide ; use of a false government document; distribution, manufacture or possession of an item containing personal identifying information; bias intimidation (third or fourth degree); knowingly leaving the scene of an accident that results in serious bodily injury to another person; gang-criminality (third or fourth degree); and promotion of organized street crime (third or fourth degree).

“In general terms, a regular probationary sentence is typically imposed for third- or fourth-degree offenses, which do not contain a specific provision requiring a state prison sentence.”  State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014).

When neither the presumption of incarceration or the presumption of non-incarceration applies, the “the court must weigh the aggravating and mitigating factors of N.J.S.A. 2C:44-1a and b to determine whether a probationary or custodial sentence is appropriate.”  State v. Baylass, 114 N.J. 169, 173 (1989).

It is critically important, if you are facing criminal charges, to understand how these presumptions will affect a sentencing decision.  If you are facing criminal charges you should immediately reach out to our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your criminal case at (862) 315-7929.

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