State v. Reed, 211 N.J. Super. at 188-189; State v. Pavin,
202 N.J. Super. 225; State v. Martelli, 201 N.J. Super. at
386; State v. Link, 197 N.J. Super. at 620.
Fact which requires the imposition of a legislatively
mandated parole ineligibility term (in this case Graves Act),
can be considered as a basis for increase of the specific term
sentence and period of ineligibility based therein. State v.
Reed, 215 N.J. Super. at 108.
Victim’s death may not be considered as an
aggravating factor for a murder sentence; however, it may
be considered in sentencing defendant on other counts of
the indictment in which it is not an element. State v. Boyer,
221 N.J. Super. 387, 405-406 (App. Div. 1987), certif.
denied 110 N.J. 299 (1988).
Seriousness of bodily injury was element of second
degree aggravated assault and cannot be counted as an
aggravating factor. State v. Rivers, 252 N.J. Super. 142
(App. Div. 1991). Nevertheless, in State v. Mara, 253 N.J.
Super. 204 (App. Div. 1992), trial court was permitted to
consider victim’s injuries in aggravated assault case because
serious injuries were far in excess of statutory minimum.
Trial court’s error in considering element of offense as
aggravating factor provided no basis for disturbing
sentence where judge did not impose sentence in excess of
presumptive term. State v. C.H., 264 N.J. Super. at 140.
- Nature and Circumstances of Offense - N.J.S.A.
2C:44-1a(1)
Where intent is an element of the offense it may not be
considered an aggravating factor; nevertheless defendant’s
intention to cause pain aggravates the offense and warrants
more severe punishment. State v. O’Donnell, 117 N.J. 210,
217-218 (1989).
It is improper to consider recklessness and conduct
manifesting indifference to human life as aggravating
factor because they are elements of aggravated assault. State
v. Kromphold, 162 N.J. 345, 354 (2000); State v. Mara, 253
N.J. Super. at 215.
Sentencing court could not use defendant’s level of
intoxication as aggravating factor where trial court had
instructed jury to consider the extent of defendant’s
intoxication on the issue of defendant’s recklessness. State
v. Kromphold, 162 N.J. at 355-56.
Evidence supported trial court’s finding that
aggravated assault was committed in cruel, heinous or
depraved manner where defendant pointed gun at one
victim and shot two other victims. State v. Rivers, 252 N.J.
Super. 142 (App. Div. 1991).Factor deemed applicable where defendant used
excessive force to commit crime and inflicted gratuitous
bodily injuries on victim. State v. McBride, 211 N.J. Super.
699, 704 (App. Div. 1986).Factor found to be applicable where shoot-out and
chase occurred in highway traffic and had potential to
endanger many lives. State v. King, 215 N.J. Super. 504,
522 (App. Div. 1987).- Harm To Victim - N.J.S.A. 2C:44-1a(2)
If court finds that this factor is applicable and does not
impose a custodial sentence, then the court must place on
the record the mitigating factors which justify the
imposition of a noncustodial term. N.J.S.A. 2C:44-1g.Definition of serious bodily injury contained in
aggravated assault statute is not equivalent to seriousness of
harm aggravating factor, and thus sentencing court may
find this aggravating factor even if assault conviction was
based on serious bodily injury. State v. Kromphold, 162
N.J. at 356-358.When a sentencing court considers the harm a
defendant caused to a victim for purposes of determining
whether the aggravating factor is implicated, it should
engage in a pragmatic assessment of the totality of the harm
inflicted by the offender on the victim, to the end that
defendants who purposely or recklessly inflict substantial
harm receive more severe sentences than other defendants.
State v. Kromphold, 162 N.J. at 358.Evidence of victim’s loss of eye supported gravity and
seriousness of harm aggravating factor. State v. Colella, 298
N.J. Super. 668, 676 (App. Div.), certif. denied 151 N.J. 73
(1997).Psychological harm, which may be a material factor in
sentencing for violent crimes, is relevant under the
seriousness of harm aggravating factor. State v. Kromphold,
162 N.J. at 357; State v. Logan, 262 N.J. Super. 128, 132
(App. Div.), certif. denied 133 N.J. 446 (1993).Gravity and seriousness of harm was aggravating factor
because defendant threatened victims with baseball bat.
State v. Kelly, 266 N.J. Super. 392, 395-96 (App. Div.
1993).