The availability, or even the successful completion of a
drug or alcohol rehabilitation program is an insufficient
basis by itself upon which to conclude that imprisonment
of a first or second degree offender would be a “serious
injustice.” State v. Kent, 212 N.J. Super. 635, 643 (App.
Div. 1986), certif. denied 107 N.J. 65 (1986).
When the aggravating and mitigating factors are in
equipoise, and defendant is convicted of a first or second
degree crime with a presumption of imprisonment, the
presumptive term should be imposed. State v. Frank, 280
N.J. Super. at 42 (App. Div. 1995).
Defendant’s conviction for second-degree drug
offense required a custodial sentence and presumption of
incarceration was not overcome by anecdotal evidence of
rehabilitation. State v. Soricelli, 156 N.J. 525 (1999).
Presumption of incarceration in N.J.S.A. 2C:44-1d is
not satisfied by imposition of probationary sentence with
the condition of a county jail term (split sentence). State v.
O’Connor, 105 N.J. 399, 407-410 (1987); see, e.g., State v.
Kreidler, 211 N.J. Super. 276, 279 (App. Div. 1986), certif.
denied 107 N.J. 126 (1987); State v. Whidby, 204 N.J.
Super. 312, 314 (App. Div. 1985).
Split sentence can only be imposed on first and second
degree offenses in exceptional cases in which the trial court
finds that the presumption of imprisonment has been
overcome. State v. O’Connor, 105 N.J. at 410; State v.
Kreidler, 211 N.J. Super. at 277-279.
Second or subsequent offender charged with third
degree crime or less serious offense is not subject to
presumption of imprisonment. State v. Powell, 218 N.J.
Super. 444, 450-451 (App. Div. 1987).
III. PRESUMPTION OF NON-INCARCERA-
TION - N.J.S.A. 2C:44-1e
Presumption not applicable if offender previously
convicted of disorderly or non-indictable offense. See
N.J.S.A. 2C:1-14k; State v. Battle, 256 N.J. Super. 268, 285
(App. Div.), certif. denied 130 N.J. 393 (1992); State v.
Kates, 185 N.J. Super. 226 (Law Div. 1982); State v. Garcia,
186 N.J. Super. 386 (Law Div. 1982).
Presumption still applies to a defendant previously
convicted of a crime when that conviction is the subject of
a pending direct appeal. State v. Rodriguez, 202 N.J. Super.
543 (Law Div. 1985).
Presumption does not apply in cases in which judge
reduces second degree offense to third degree for purposes
of sentencing. (Defendant still convicted of second degree
offense). N.J.S.A. 2C:44-1f(2); State v. Partusch, 214 N.J.
Super. 473, 476 (App. Div. 1987); State v. Hartye, 208 N.J.
Super. 319, 325-327 (App. Div. 1986), aff’d 105 N.J. 411,
418-421 (1987); State v. Rodriguez, 179 N.J. Super. 129
(App. Div. 1981); N.J.S.A. 2C:44-1e. State v. O’Connor,
105 N.J. at 405.Presumption of non-incarceration is not violated by
imposition of probationary sentence with condition of
county jail sentence (split sentence). State v. Hartye, 105
N.J. at 418-421; State v. O’Connor, 105 N.J. 399 (1987).
If the trial court finds that the presumption against
incarceration is overcome, it is bound to impose a custodial
term within the ordinary statutory range for that offense.
State v. Hartye, 105 N.J. at 417.Presumption of non-incarceration is applicable to
municipal court offenses. State v. LeSane, 227 N.J. Super.
276 (Law Div. 1987).IV. PRESUMPTIVE TERMS - N.J.S.A. 2C:44-1f
When the trial court finds the aggravating and
mitigating factors are in equipoise, it shall impose the
presumptive sentence. When, however, either the
mitigating or the aggravating factors preponderate, it may
adjust the sentence within the guidelines set by N.J.S.A.
2C:44-1f. State v. Kruse, 105 N.J. 354, 358 (1987).A court may impose a period of parole ineligibility in
conjunction with a presumptive term. Nevertheless, it
should be imposed only in rare cases where the trial judge
clearly states his reasons for such a sentence. State v. Kruse,
105 N.J. at 361-362.V. DOWNGRADE OF SENTENCE - N.J.S.A.
2C:44-1f(2)
The reasons justifying the downgrade of an offense
pursuant to N.J.S.A. 2C:44-1f(2) must be “compelling”
and something in addition to, and separate from, the
finding that the mitigating factors substantially outweigh
the aggravating factors. State v. Megargel, 143 N.J. 484
(1996).The Legislature’s creation of enhanced sentences for
certain crimes such as kidnaping and aggravated
manslaughter mandates that the trial court exercise special
caution before downgrading such serious offenses. State v.