Megargel, 143 N.J. 484 (1996); State v. Mirakaj, 268 N.J.
Super. at 50-51.
Sentencing court can impose sentence greater than the
presumptive term when it sentences one degree lower
pursuant to N.J.S.A. 2C:44-1f(2). State v. Balfour, 135
N.J. 30, 38 (1994); State v. Kelly, 266 N.J. Super. 392 (App.
Div. 1993).
The provisions of a plea agreement can appropriately
be considered and weighed in the decision to downgrade.
State v. Balfour, 135 N.J. 30, 38 (1994).
The presumption of imprisonment still applies on a
downgrade from second to third degree for sentencing
purposes because defendant remains convicted of a second
degree offense despite the fact he was sentenced as third
degree offender. State v. O’Connor, 105 N.J. 399, 405
(1987); State v. Frank, 280 N.J.Super. 26, 42 (App. Div.),
certif. denied 141 N.J. 96 (1995); State v. Partusch, 214 N.J.
Super. at 476; State v. Rodriguez, 179 N.J. Super. 129 (App.
Div. 1981).
Mandatory parole disqualifiers are still required even if
court sentences one degree lower under N.J.S.A. 2C:44-
1f(2). State v. Barber, 262 N.J. Super. 157 (App. Div.),
certif. denied 133 N.J. 441 (1993).
Court required to impose Drug Enforcement and
Demand Reduction Penalty (DEDR) for second degree
crime notwithstanding downgrade to third degree for
purposes of sentencing. State v. Williams, 225 N.J. Super.
462, 464-65 (Law Div. 1988).
VI. INDETERMINATE SENTENCES FOR
YOUTHFUL OFFENDERS
Any offender, who at the time of sentencing is less than
26 years old and has not been previously sentenced to state
prison, may be sentenced to an indeterminate term at the
Youth Correctional Institution Complex. N.J.S.A. 2C:43-
5; N.J.S.A. 30:4-146.
A maximum term for an indeterminate sentence is
ordinarily 5 years, unless the statutory maximum for the
offense is less than 5 years, or if the trial judge specifically
waives the 5 year term and for good cause imposes a greater
term (within statutory limits). State v. White, 186 N.J.
Super. 15 (Law Div. 1982); N.J.S.A. 30:4-148.
Trial court may use the aggravating and mitigating
factors delineated in N.J.S.A. 2C:44-1 as a basis to explain
the “good cause” which requires a term in excess of the
mandated presumptive five year term. State v. Scherzer,
301 N.J. Super. 363, 498 (App. Div.), certif. denied 151
N.J. 466 (1997); State v. Ferguson, 273 N.J. Super. 486, 495
(App. Div.), certif. denied 138 N.J. 265 (1994).A defendant who has previously been sentenced to
state or federal prison cannot receive indeterminate term
on subsequent conviction. State v. Murray, 162 N.J. 240,
247 (2000); State v. Levine, 253 N.J. Super. 149 (App. Div.
1992); State v. Benedetto, 221 N.J. Super. 573, 577 (App.
Div. 1987), certif. denied 111 N.J. 559 (1988); N.J.S.A.
30:4-147.Cannot give indeterminate sentences for Graves Act
offense, but sentence can be served at Yardville. Cannot get
parole ineligibility term in conjunction with indeterminate
term. State v. DesMarets, 92 N.J. 62, 76, 83-84 (1983);
State v. Groce, 183 N.J. Super. 168 (App. Div. 1982).
N.J.S.A. 2C:43-5.Cannot give indeterminate sentence for CDRA drug
offense which carries a mandatory parole ineligibility term.
State v. Luna, 278 N.J. Super. 433 (App. Div. 1995).In State v. Styker, 262 N.J. Super. 7 (App. Div. 1993),
aff’d o.b. 134 N.J. 254 (1993), the Appellate Division held
that McBride mandated preference for youthful offender
sentence did not survive enactment of code. It is merely an
sentencing option for the trial court.Where the trial judge lawfully sentenced the defendant
as a youthful offender to an indeterminate term but set the
indeterminate term below the required five years, that
sentence could be corrected; however, once service of the
sentence commenced, the lawful discretionary elements of
the sentence, could not be made more burdensome. State
v. Eigenmann, 280 N.J. Super. 331 (App. Div. 1995).VII. PAROLE INELIGIBILITY TERMS
Standard for imposition is whether court is “clearly
convinced” that “aggravating factors substantially out-
weighed the mitigating” --- N.J.S.A. 2C:43-6b.Failure of trial court to make specific finding that he
was clearly convinced that aggravating factors substantially
outweigh the mitigating factors” did not require vacation
of parole ineligibility terms where such finding was
implicit in court’s reasons for sentence. State v. Porter, 210
N.J. Super. 383, 396-397 (App. Div. 1986), certif. denied
105 N.J. 556 (1986). Where there is a sufficient showing
in the sentencing court’s reasons for sentence to show
substantial compliance with provisions of N.J.S.A. 2C:43-