remaining fugitive codefendant was apprehended. State v.
Henry, 323 N.J. Super. 157, 166-167 (App. Div. 1999).
- Codefendant’s Sentences (Disparity)
A sentence of one defendant not otherwise excessive is
not erroneous merely because a codefendant’s sentence is
lighter; nevertheless, there is an obvious sense of unfairness
in having disparate punishment for equally culpable
perpetrators. The question is whether the disparity is
justifiable or unjustifiable. State v. Roach, 146 N.J. 208,
232-234 (1996); State v. Hicks, 54 N.J. 390, 392 (1969);
State v. Lee, 235 N.J. Super. 410, 416 (App. Div. 1989).
Disparate sentences imposed on defendant and
codefendants were justified by codefendants’ cooperation
with law enforcement authorities. State v. Gonzalez, 223
N.J. Super. 377, 393 (App. Div. 1988), certif. denied 111
N.J. 589 (1988).
The fact that one defendant may have received a
lenient sentence unappealable by the State does not mean
that a codefendant’s appropriate sentence becomes
assailable or subject to modification on appeal. State v.
Baker, 270 N.J. Super. 55, 78-79 (App. Div. 1994), aff’d
o.b. 138 N.J. 89 (1994); State v. Lee, 235 N.J. Super. 410,
415-416 (App. Div. 1989).
The fact that the codefendant’s sentence was shorter,
and did not include mandatory term which had been
imposed on defendant, did not violate equal protection,
nor did the codefendant’s testimony against the defendant
under a plea agreement which included an illegal sentence
deny defendant due process of law. State v. Baker, 270 N.J.
Super. 55 (App. Div.), aff’d o.b. 138 N.J. 89 (1994).
Disparity must be evaluated in terms of “real time,”
and defendant who received no parole ineligibility term
while codefendant received a two year parole disqualifier
may actually serve less “real time” then codefendant. State
v. Salentre, 275 N.J. Super. 410, 425 (App. Div. 1994),
certif. denied 138 N.J. 269 (1994).
In State v. Bessix, 309 N.J. Super. 126 (App. Div. 1998)
the Appellate Division remanded matter for resentencing
where juvenile defendant’s sentence of 20 years, 10 without
parole, appeared to be significantly disproportionate to the
sentences imposed on three adult codefendants who
pleaded guilty and did not receive parole disqualifiers for
their first degree robbery and aggravated assault
convictions.
II. PRESUMPTION OF IMPRISONMENT -
N.J.S.A. 2C:44-1d
Applicable only to first and second degree crimes
committed after September 24, 1981. See State v. Hodge,
95 N.J. 369, 374 (1984); State v. Roth, 95 N.J. 334 (1984);
N.J.S.A. 2C:44-1d.It is only in the exceptional case, when the sentencing
court finds a “serious injustice” exists, that the
presumption of imprisonment may be overcome. State v.
Kelly, 97 N.J. 178, 220 (1984); State v. Roth, 95 N.J. at 368.The presumption of incarceration is not overcome
merely because the defendant is a first offender or because
the mitigating factors preponderate over the aggravating
factors. State v. Jabbour, 118 N.J. 1 (1990); State v. Kelly,
97 N.J. at 219-20; State v. Gonzalez, 223 N.J. Super. 377,
393 (App. Div.), certif. denied 111 N.J. 589 (1988).Nor is the presumption overcome when the sentencing
judge elects to sentence the defendant one degree lower
pursuant to N.J.S.A. 2C:44-1f(2). State v. Frank, 280 N.J.
Super. 26, 42 (App. Div.), certif. denied 141 N.J. 96 (1995).
In that situation the judge may reduce a prison term, but he
still must imprison defendant. State v. Jabbour, 118 N.J. 1
(1990); State v. Salentre, 275 N.J. Super. 410, 415 (App.
Div.), certif. denied 138 N.J. 269 (1994); State v. Gerstofer,
191 N.J. Super. 542, 546 (App. Div. 1983), certif. denied 96
N.J. 310 (1984).The presumption of imprisonment was not overcome
by the trial judge’s conclusion that defendant would have a
difficult time in prison because of his youth, physical
appearance and psychiatric condition. These personal
characteristics of the defendant did not distinguish him
from other sex offenders nor did they demonstrate that
imprisonment would be a serious injustice that overrode
the need to deter such conduct by others. State v. Jabbour,
118 N.J. 1 (1990).In State v. Johnson, 118 N.J. 10 (1990), the Supreme
Court held that it would not be a serious injustice to
imprison a deaf drug addict who sodomized his step-
daughter, and thus the presumption of imprisonment was
not overcome.The commission of a first or second degree crime while
under the influence of alcohol or drugs is not an
extraordinary or unusual circumstance sufficient to
overcome the presumption of imprisonment. State v.
Rivera, 124 N.J. 122 (1991); State v. Ghertler, 114 N.J.
383, 390 (1989); State v. Roth, 95 N.J. at 368.