Involvement in organized criminal activity is not an
element of the offense of conspiracy to promote gambling,
and thus it can be considered an aggravating factor at
sentencing. N.J.S.A. 2C:44-1a(5). State v. Pych, 213 N.J.
Super. 446, 460-461 (App. Div. 1986), certif. denied 107
N.J. 90 (1987).
Supreme Court directive of November 5, 1965
requiring as a matter of administrative policy to have all
sentencings in gambling cases handled by a single judge in
each county was found to be valid and compatible with the
purposes of the penal code. State v. Pych, 213 N.J. Super. at
462.
- Prior Record - N.J.S.A. 2C:44-1a(6)
The trial court may consider a defendant’s extensive
juvenile record and municipal court convictions as an
aggravating factor. State v. Taylor, 226 N.J. Super. 441
(App. Div. 1988).
A court can consider a defendant’s prior conviction
which has been set aside under the Federal Youth
Corrections Act, just as the court can consider a
defendant’s arrest record and record of dismissed charges.
State v. Walters, 279 N.J. Super. 626, 633 (App. Div.),
certif. denied 141 N.J. 96 (1995); State v. Stackhouse, 194
N.J. Super. 371, 375 (App. Div. 1984). See State v. Marzolf,
79 N.J. 167, 176-177 (1979).
A Court can consider defendant’s prior arrest which
resulted in supervisory treatment under the drug laws.
State v. Walters, 279 N.J. Super. at 633; State v. Marzolf, 79
N.J. 167, 176-177 (1979).
A Court can consider defendant’s adult arrests which
did not result in convictions. State v. Walters, 279 N.J.
Super. at 633; State v. Green, 62 N.J. 547, 571 (1973).
Defendant’s prior convictions for DWI could not be
considered as aggravating factor under 2C:44-1a(6),
although they could be considered as part of defendant’s
overall personal history in the same fashion as convictions
in municipal court or a juvenile record. State v. Radziwil,
235 N.J. Super. at 576. See State v. Marzolf, 79 N.J. at 177.
A trial court may consider a defendant’s juvenile
record at sentencing; however, if the record is lengthy
because of charges and arrests that did not result in
convictions, the judge should state the reasons why these
arrests/charges are relevant to the present sentence. State v.
Torres, 313 N.J. Super. 129, 162 (App. Div.), certif. denied
156 N.J. 425 (1998); State v. Walters, 279 N.J. Super. 616,
633 (App. Div.), certif. denied 141 N.J. 96 (1995); State v.
Tanksley, 245 N.J.Super. 390, 396-397 (App. Div. 1991).- Need To Deter - N.J.S.A. 2C:44-1a(9)
Deterrence was correctly considered as an aggravating
factor in State v. Davidson, 225 N.J. Super. 1 (App. Div.
1988), certif. denied 111 N.J. 594 (1988), wherein the
defendant committed racially motivated acts of mischief,
damage to property and threats of violence against a black
family. In upholding defendant’s custodial sentence the
Court noted that a case involving racial or ethnic violence
involves a particular need for general deterrence. See
N.J.S.A. 2C:44-1a(9).When defendant is eligible for extended term as
persistent offender, the need for deterrence is enhanced.
State v. Pennington, 154 N.J. 344, 354 (1998).The need to deter defendant was evident by the fact
that defendant murdered four people on four separate
occasions. State v. Cook, 330 N.J. Super. 395, 423 (App.
Div. 2000).Deterrence is clearly a permissible aggravating factor to
consider in imposing sentence on inmate for aggravated
assault on corrections officer. State v. Doss, 310 N.J.Super.
450, 461 (App. Div. 1998); State v. Martin, 235 N.J.Super.
47, 59-60 (App. Div.), certif. denied 117 N.J. 669 (1989).The need to deter the defendant and others from drunk
driving may be an aggravating factor in appropriate cases.
State v. Mara, 253 N.J. Super. 204 (App. Div. 1992).Defendant’s six prior DWIs could be considered in
determining the applicability of this factor. State v.
Radziwil, 235 N.J. Super. at 576 n.3.Trial court properly found the need to deter as an
aggravating factor where the defendant, who was convicted
of aggravated assault, consistently denied his involvement
and lacked remorse. State v. Rivers, 252 N.J. Super. 142
(App. Div. 1991).- Cost of Doing Business - N.J.S.A. 2C:44-1a(11)
The sentencing judge properly considered as
aggravating factors the need for deterrence and the concern
that without a substantial prison term in a drug case, the
defendant and others would consider his punishment as
merely part of the cost of doing business. State v. Ascencio,