277 N.J. Super. 334, 336-37 (App. Div. 1994), certif.
denied 140 N.J. 278 (1995); State v. Tarver, 272 N.J. Super.
414, 434 (App. Div. 1994).
B. Mitigating Factors
- Conduct Did Not Cause Harm - N.J.S.A. 2C:44-
1b(1)(2)
Distribution of cocaine can be readily perceived to
constitute conduct which causes and/or threatens serious
harm, therefore mitigating factors 1 and 2 (defendant did
not cause or contemplate that conduct would cause serious
harm) not applicable. State v. Tarver, 272 N.J. Super. 414,
434-435 (App. Div. 1994).
- Youth - N.J.S.A. 2C:44-1b
Youth may be considered as a mitigating factor if the
defendant was substantially influenced by another person
more mature than defendant. State v. Torres, 313 N.J.
Super. 129, 162 (App. Div. 1998) (def. not entitled to
factor).
Trial court should have considered as mitigating factor
that defendant, who was quite young, of limited intellect
and easily swayed, was under the virtual domination of
someone who was not only older than him, but also his
aunt. State v. Henry, 323 N.J. Super. 157, 166 (App. Div.
1999).
- Justification/Excuse - N.J.S.A. 2C:44-1b(4)
A defendant’s drug or alcohol dependency is not a
mitigating factor. State v. Ghertler, 114 N.J. 383, 390
(1989); State v. Towey, 244 N.J. Super. 582 (App. Div.
1990), certif. denied 122 N.J. 159 (1990). Crimes
committed under the influence of alcohol or drugs do not
detract from the seriousness of the offense. State v. DeLuca,
325 N.J. Super. 376, 392 (App. Div. 1999), certif. granted
163 N.J. 79 (2000); State v. Towey, 244 N.J. Super. at 595.
Mental retardation may be considered as a mitigating
circumstance under this factor. State v. Jarbath, 114 N.J.
394, 403, 414 (1989).
Trial court could consider mitigating factor where
facts indicated that assault conviction resulted from
defendant coming to the aid of another person whom he
believed was being attacked. State v. Christensen, 270 N.J.
Super. 650 (App. Div. 1994).
- Provocation - N.J.S.A. 2C:44-1b(3)
Factor not applicable in passion/provocation man-
slaughter conviction because it is element of offense and
would constitute double counting. State v. Teat, 233 N.J.
Super. 368, 372 (App. Div. 1989).- Circumstances Unlikely to Recur - N.J.S.A. 2C:44-
1b(8)
There is nothing unique about being under the
influence of alcohol while owing money to justify
defendant’s claim that armed robbery offense was the result
of circumstances unlikely to recur. State v. Kelly, 266 N.J.
Super. 392, 396 (App. Div. 1993).- Response to Probationary Treatment - N.J.S.A.
2C:44-1b(10)
Mitigating factor that defendant is likely to respond to
probationary treatment is irrelevant where there is
presumption of imprisonment. State v. Kelly, 266 N.J.
Super. at 396.- Excessive Hardship - N.J.S.A. 2C:44-1b(11)
Incarceration of mentally retarded defendant, who was
severely abused daily by other inmates, beaten and who had
attempted suicide, constituted excessive hardship. State v.
Jarbath, 114 N.J. at 398, 409.Hardship to defendant’s children may be a mitigating
factor in appropriate circumstances. State v. Mirakaj, 268
N.J. Super. at 51; State v. Christensen, 270 N.J. Super. 650
(App. Div. 1994).- Cooperation - N.J.S.A. 2C:44-1b(12)
Mitigating factor of cooperation does not apply when
defendant was willing to cooperate with law enforcement
because he thought he would get a reward. State v. Grey,
281 N.J. Super. 2, 13 (App. Div. 1995), rev’d o.g. 147 N.J.
4 (1996).Where defendant cooperated with police and testified
against one codefendant, court erred in imposing greater
sentence than it otherwise would have imposed, with stated
intention to reduce sentence later, in order to ensure
defendant’s continuing cooperation in the event the