- NERA Accomplices and Attempts
An accomplice of a person committing a qualifying
NERA offense is also subject to a NERA sentence. State v.
Rumblin, 166 N.J. 550, 766 (2001); State v. Cheung, 328
N.J. Super. 368 (App. Div. 2000).
An attempt to cause death or serious bodily injury,
without causing either, and without the use or threatened
use of a deadly weapon, is not a NERA crime because it
does not meet the statutory definition of a violent crime.
State v. Staten, 327 N.J. Super. at 354. A mere attempt to
cause serious bodily injury, without more, does not subject
a first or second degree offender to NERA. State v. Kane,
335 N.J. Super. 391, 398 (App. Div. 2000); State v. Staten,
327 N.J. Super. at 355; but see State v. Thomas, N.J.
, S.O. at 16, 2001 WL 194653 (2001) (offenses that do
not contain NERA factor as constituent element can be
brought within scope of NERA only upon proof of a
NERA factor. “Invariably, the criminal attempt statute,
N.J.S.A. 2C:5-1 will be used to accomplish that purpose.”)
E. Three Strikes - N.J.S.A. 2C:43-7.1
The Supreme Court of New Jersey held that the Three
Strikes Law, N.J.S.A. 2C:43-7.1a, is constitutional and
does not violate double jeopardy, separation of powers, ex
post facto doctrine, equal protection, due process and is not
cruel and unusual punishment, and defendant’s 1979 pre-
code robbery conviction was substantially equivalent to
first degree robbery under N.J.S.A. 2C:15-1b and
constituted a prior offense under the law. State v. Oliver,
162 N.J. 580 (2000).
Prior out-of-state robbery conviction was not
substantially equivalent to first degree robbery in this state
and thus defendant was not eligible for life term under
Three Strikes statute. State v. Rhodes, 329 N.J. Super. 536
(App. Div.), certif. denied 165 N.J. 487 (2000).
Defendant must be given notice that he or she is
subject to the provisions of the Three Strikes law and a
hearing must be held to establish the eligibility for the
enhanced sentence by a preponderance of the evidence.
State v. Oliver, 162 N.J. 580, 590-591 (2000).
X. DISCRETIONARY EXTENDED TERMS -
N.J.S.A. 2C:44-3
A. Persistent Offender
The general rule is that only one sentence for extended
term may be imposed at the same proceeding. N.J.S.A.
2C:44-5a(3); State v. Pennington, 154 N.J. 344, 361
(1998); State v. Cook, 330 N.J. Super. 395, 423 (App. Div.),
certif. denied 165 N.J. 486 (2000); State v. Mays, 321 N.J.
Super. 619, 636 (App. Div.), certif. denied 162 N.J. 132
(1999); State v. Latimore, 197 N.J. Super. 197, 223 (App.
Div. 1984), certif. denied 101 N.J. 328 (1985).An exception to this rule is Graves Act extended terms
for which multiple terms must be imposed when required
the statutory requirements are met. State v. Connell, 208
N.J. Super. 688 (App. Div. 1986). See also State v. Serrone,
95 N.J. 23 (1983) (murder is exception).Nor does this restriction apply to situations where
extended terms have been imposed on different offenses at
a separate time in a separate proceeding by different courts.
State v. Williams, 299 N.J. Super. 264, 273 (App. Div.
1997).Parole ineligibility term may be imposed on
presumptive base term in extended term sentence. State v.
Pennington, 154 N.J. at 357.Life imprisonment is the presumptive term for
extended term for first degree kidnapping. State v.
Pennington, 154 N.J. at 356.If a sentencing court elects to impose a parole bar on an
extended term of life imprisonment, that bar must be
twenty-five years. State v. Pennington, 154 N.J. 344
(1998).- Grounds for Imposition and Notice
The Supreme Court articulated the following
standards for imposition of an extended term of
imprisonment on a persistent offender:(a) the sentencing court must determine whether the
minimum statutory requirements for subjecting the
defendant to an extended term have been met.(b) the court must determine whether to impose an
extended term.(c) the court must weigh the aggravating and
mitigating circumstances to determine the base term of the
extended sentence.(d) the court must determine whether to impose a
period of parole ineligibility. State v. Pennington, 154 N.J.
344, 354 (1998); State v. Dunbar, 108 N.J. 80 (1987).