What is the sentencing for assault?
Full Question:
A women 31 years younger than my father has cleaned out my father's banking account. She comes to see my father on the first of the month to take his retirement money. My father is 76 years old and the woman is 45 years old. The women attacked me because I told her that my father will not be giving her anymore money. On April 29, 2005 the woman was sentenced and also received probation for 5 years. She was sentenced for THEFT BY DECEPTION. I have pressed charges for ASSAULT, our court date is for March 5, 2009. She deceived my father for his money. My father and myself live together in New Jersey. My question is can I send her back to jail for assault?
02/27/2009 |
Category: Criminal » Assault |
State: New Jersey |
#15384
Answer:
Assault is an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another. Assault does not require actual touching or bodily harm to the victim. An assault is both a crime and a tort. Therefore, an assailant may face both criminal and civil liability. A criminal assault conviction may result in a fine, imprisonment, or both. In a civil assault case, the victim may be entitled to monetary damages from the assailant. Words, without an act, cannot constitute an assault. Assault requires intent, meaning that there has been a deliberate, unjustified interference with the personal right or liberty of another in a way that causes harm. In the tort of assault, intent is established if a reasonable person is substantially certain that certain consequences will result; intent is established whether or not he or she actually intends those consequences to result. Criminal assault statutes often speak of acting "purposely," "knowingly," "recklessly," or "negligently." Acting negligently means to grossly deviate from the standards of normal conduct. Some criminal assault statutes recognize only "purposely," "knowingly," and "recklessly" as the level of intent required to establish that an offense occurred. All states and the federal government have statutes making assault a crime. A criminal assault may be either a felony or a misdemeanor, depending upon the seriousness of the offense. Aggravated assault is a felony in all jurisdictions. It is an assault that goes beyond merely an intention to frighten the victim; it is committed with intent to commit some additional crime or is particularly egregious in some way. Separate from any criminal prosecution for assault, a victim may pursue civil damages for injuries caused by it. After a determination by a judge or jury that an assault was committed, the next step is to determine what compensation is appropriate.
The following are New Jersey statutes:
2C:20-4. Theft by deception
A person is guilty of theft if he purposely obtains property of
another by deception. A person deceives if he purposely:
a. Creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind, and
including, but not limited to, a false impression that the person is
soliciting or collecting funds for a charitable purpose; but deception as
to a person's intention to perform a promise shall not be inferred from
the fact alone that he did not subsequently perform the promise;
b. Prevents another from acquiring information which would affect his
judgment of a transaction; or
c. Fails to correct a false impression which the deceiver previously
created or reinforced, or which the deceiver knows to be influencing
another to whom he stands in a fiduciary or confidential relationship.
The term "deceive" does not, however, include falsity as to matters
having no pecuniary significance, or puffing or exaggeration by
statements unlikely to deceive ordinary persons in the group addressed.
2C:12-1 Assault.
a. Simple assault. A person is guilty of assault if he:
(1) Attempts to cause or purposely, knowingly or recklessly causes
bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon;
or
(3) Attempts by physical menace to put another in fear of imminent
serious bodily injury.
Simple assault is a disorderly persons offense unless committed in a
fight or scuffle entered into by mutual consent, in which case it is a
petty disorderly persons offense.
b. Aggravated assault. A person is guilty of aggravated assault
if he:
(1) Attempts to cause serious bodily injury to another, or causes such
injury purposely or knowingly or under circumstances manifesting extreme
indifference to the value of human life recklessly causes such injury; or
(2) Attempts to cause or purposely or knowingly causes bodily injury to
another with a deadly weapon; or
(3) Recklessly causes bodily injury to another with a deadly weapon; or
(4) Knowingly under circumstances manifesting extreme indifference to
the value of human life points a firearm, as defined in
section 2C:39-1f., at or in the direction of another, whether or not the actor
believes it to be loaded; or
(5) Commits a simple assault as defined in subsection a. (1), (2)
or (3) of this section upon:
(a) Any law enforcement officer acting in the performance of his
duties while in uniform or exhibiting evidence of his authority or
because of his status as a law enforcement officer; or
(b) Any paid or volunteer fireman acting in the performance of
his duties while in uniform or otherwise clearly identifiable as
being engaged in the performance of the duties of a fireman; or
(c) Any person engaged in emergency first-aid or medical services
acting in the performance of his duties while in uniform or otherwise
clearly identifiable as being engaged in the performance of emergency
first-aid or medical services; or
(d) Any school board member, school administrator, teacher, school bus
driver or other employee of a public or nonpublic school or school board
while clearly identifiable as being engaged in the performance of his
duties or because of his status as a member or employee of a public or
nonpublic school or school board or any school bus driver employed by an
operator under contract to a public or nonpublic school or school board
while clearly identifiable as being engaged in the performance of his
duties or because of his status as a school bus driver; or
(e) Any employee of the Division of Youth and Family Services while
clearly identifiable as being engaged in the performance of his duties or
because of his status as an employee of the division; or
(f) Any justice of the Supreme Court, judge of the Superior Court,
judge of the Tax Court or municipal judge while clearly identifiable as
being engaged in the performance of judicial duties or because of his
status as a member of the judiciary; or
(g) Any operator of a motorbus or the operator's supervisor or any
employee of a rail passenger service while clearly identifiable as being
engaged in the performance of his duties or because of his status as an
operator of a motorbus or as the operator's supervisor or as an employee
of a rail passenger service; or
(h) Any Department of Corrections employee, county corrections
officer, juvenile corrections officer, State juvenile facility employee,
juvenile detention staff member, juvenile detention officer, probation
officer or any sheriff, undersheriff, or sheriff's officer acting in the
performance of his duties while in uniform or exhibiting evidence of his
authority; or
(i) Any employee, including any person employed under contract, of a
utility company as defined in section 2 of P.L. 1971, c. 224 (C.
2A:42-86) or a cable television company subject to the provisions of the
"Cable Television Act," P.L. 1972, c. 186 (C. 48:5A-1 et seq.) while
clearly identifiable as being engaged in the performance of his duties in
regard to connecting, disconnecting or repairing or attempting to
connect, disconnect or repair any gas, electric or water utility, or
cable television or telecommunication service; or
(6) Causes bodily injury to another person while fleeing or attempting
to elude a law enforcement officer in violation of subsection b. of
N.J.S. 2C:29-2 or while operating a motor vehicle in violation of
subsection c. of N.J.S. 2C:20-10. Notwithstanding any other provision of
law to the contrary, a person shall be strictly liable for a violation of
this subsection upon proof of a violation of subsection b. of N.J.S.
2C:29-2 or while operating a motor vehicle in violation of subsection c.
of N.J.S. 2C:20-10 which resulted in bodily injury to another person; or
(7) Attempts to cause significant bodily injury to another or causes
significant bodily injury purposely or knowingly or, under circumstances
manifesting extreme indifference to the value of human life recklessly
causes such significant bodily injury; or
(8) Causes bodily injury by knowingly or purposely starting a fire or
causing an explosion in violation of N.J.S. 2C:17-1 which results in
bodily injury to any emergency services personnel involved in fire
suppression activities, rendering emergency medical services resulting
from the fire or explosion or rescue operations, or rendering any
necessary assistance at the scene of the fire or explosion, including any
bodily injury sustained while responding to the scene of a reported fire
or explosion. For purposes of this subsection, "emergency services
personnel" shall include, but not be limited to, any paid or volunteer
fireman, any person engaged in emergency first-aid or medical services
and any law enforcement officer. Notwithstanding any other provision of
law to the contrary, a person shall be strictly liable for a violation of
this paragraph upon proof of a violation of N.J.S. 2C:17-1 which resulted
in bodily injury to any emergency services personnel; or
(9) Knowingly, under circumstances manifesting extreme indifference to
the value of human life, points or displays a firearm, as defined in
subsection f. of N.J.S. 2C:39-1, at or in the direction of a law
enforcement officer; or
(10) Knowingly points, displays or uses an imitation firearm, as
defined in subsection f. of N.J.S. 2C:39-1, at or in the direction of a
law enforcement officer with the purpose to intimidate, threaten or
attempt to put the officer in fear of bodily injury or for any unlawful
purpose; or
(11) Uses or activates a laser sighting system or device, or a system
or device which, in the manner used, would cause a reasonable person to
believe that it is a laser sighting system or device, against a law
enforcement officer acting in the performance of his duties while in
uniform or exhibiting evidence of his authority. As used in this
paragraph, "laser sighting system or device" means any system or device
that is integrated with or affixed to a firearm and emits a laser light
beam that is used to assist in the sight alignment or aiming of the
firearm.
Aggravated assault under subsections b. (1) and b. (6) is a crime of
the second degree; under subsections b. (2), b. (7), b. (9) and b. (10)
is a crime of the third degree; under subsections b. (3) and b. (4) is a
crime of the fourth degree; and under subsection b. (5) is a crime of the
third degree if the victim suffers bodily injury, otherwise it is a crime
of the fourth degree. Aggravated assault under subsection b.(8) is a
crime of the third degree if the victim suffers bodily injury; if the
victim suffers significant bodily injury or serious bodily injury it is a
crime of the second degree. Aggravated assault under subsection b.(11) is
a crime of the third degree.
c.
(1) A person is guilty of assault by auto or vessel when the person
drives a vehicle or vessel recklessly and causes either serious bodily
injury or bodily injury to another. Assault by auto or vessel is a crime
of the fourth degree if serious bodily injury results and is a disorderly
persons offense if bodily injury results.
(2) Assault by auto or vessel is a crime of the third degree if
the person drives the vehicle while in violation of R.S. 39:4-50 or
section 2 of P.L. 1981, c. 512 (C. 39:4-50.4a) and serious bodily
injury results and is a crime of the fourth degree if the person
drives the vehicle while in violation of R.S. 39:4-50 or section 2
of P.L. 1981, c. 512 (C. 39:4-50.4a) and bodily injury results.
(3) Assault by auto or vessel is a crime of the second degree if
serious bodily injury results from the defendant operating the auto or
vessel while in violation of R.S. 39:4-50 or section 2 of P.L. 1981, c.
512 (C. 39:4-50.4a) while:
(a)on any school property used for school purposes which is owned by or
leased to any elementary or secondary school or school board, or within
1,000 feet of such school property;
(b)driving through a school crossing as defined in R.S. 39:1-1 if
the municipality, by ordinance or resolution, has designated the
school crossing as such; or
(c)driving through a school crossing as defined in R.S. 39:1-1 knowing
that juveniles are present if the municipality has not designated the
school crossing as such by ordinance or resolution.
Assault by auto or vessel is a crime of the third degree if bodily
injury results from the defendant operating the auto or vessel in
violation of this paragraph.A map or true copy of a map depicting the location and boundaries of
the area on or within 1,000 feet of any property used for school purposes
which is owned by or leased to any elementary or secondary school or
school board produced pursuant to section 1 of P.L. 1987, c. 101 (C.
2C:35-7) may be used in a prosecution under subparagraph (a) of
paragraph (3) of this section.It shall be no defense to a prosecution for a violation of
subparagraph (a) or (b) of paragraph (3) of this subsection that the defendant was
unaware that the prohibited conduct took place while on or within 1,000
feet of any school property or while driving through a school crossing.
Nor shall it be a defense to a prosecution under subparagraph (a) or (b)
of paragraph (3) of this subsection that no juveniles were present on the
school property or crossing zone at the time of the offense or that the
school was not in session.As used in this section, "vessel" means a means of conveyance for
travel on water and propelled otherwise than by muscular power.
d. A person who is employed by a facility as defined in section 2 of
P.L. 1977, c. 239 (C. 52:27G-2) who commits a simple assault as defined
in paragraph (1) or (2) of subsection a. of this section upon an
institutionalized elderly person as defined in section 2 of P.L. 1977,
c. 239 (C. 52:27G-2) is guilty of a crime of the fourth degree.
e. (Deleted by amendment, P.L. 2001, c. 443).
f. A person who commits a simple assault as defined in paragraph (1),
(2) or (3) of subsection a. of this section in the presence of a child
under 16 years of age at a school or community sponsored youth sports
event is guilty of a crime of the fourth degree. The defendant shall be
strictly liable upon proof that the offense occurred, in fact, in the
presence of a child under 16 years of age. It shall not be a defense that
the defendant did not know that the child was present or reasonably
believed that the child was 16 years of age or older. The provisions of
this subsection shall not be construed to create any liability on the
part of a participant in a youth sports event or to abrogate any immunity
or defense available to a participant in a youth sports event. As used in
this act, "school or community sponsored youth sports event" means a
competition, practice or instructional event involving one or more
interscholastic sports teams or youth sports teams organized pursuant to
a nonprofit or similar charter or which are member teams in a youth
league organized by or affiliated with a county or municipal recreation
department and shall not include collegiate, semi-professional or
professional sporting events.
2C:43-2 Sentence in accordance with code; authorized dispositions.
a. Except as otherwise provided by this code, all persons convicted of
an offense or offenses shall be sentenced in accordance with this
chapter.
b. Except as provided in subsection a. of this section and subject to
the applicable provisions of the code, the court may suspend the
imposition of sentence on a person who has been convicted of an offense,
or may sentence him as follows:
(1) To pay a fine or make restitution authorized by N.J.S. 2C:43-3
or P.L. 1997, c. 253 (C. 2C:43-3.4 et al.); or
(2) Except as provided in subsection g. of this section, to be placed
on probation and, in the case of a person convicted of a crime, to
imprisonment for a term fixed by the court not exceeding 364 days to be
served as a condition of probation, or in the case of a person convicted
of a disorderly persons offense, to imprisonment for a term fixed by the
court not exceeding 90 days to be served as a condition of probation; or
(3) To imprisonment for a term authorized by sections 2C:11-3,
2C:43-5, 2C:43-6, 2C:43-7, and 2C:43-8 or 2C:44-5; or
(4) To pay a fine, make restitution and probation, or fine, restitution
and imprisonment; or
(5) To release under supervision in the community or to require
the performance of community-related service; or
(6) To a halfway house or other residential facility in the community,
including agencies which are not operated by the Department of Human
Services; or
(7) To imprisonment at night or on weekends with liberty to work
or to participate in training or educational programs.
c. Instead of or in addition to any disposition made according to this
section, the court may postpone, suspend, or revoke for a period not to
exceed two years the driver's license, registration certificate, or both
of any person convicted of a crime, disorderly persons offense, or petty
disorderly persons offense in the course of which a motor vehicle was
used. In imposing this disposition and in deciding the duration of the
postponement, suspension, or revocation, the court shall consider the
severity of the crime or offense and the potential effect of the loss of
driving privileges on the person's ability to be rehabilitated. Any
postponement, suspension, or revocation shall be imposed consecutively
with any custodial sentence.
d. This chapter does not deprive the court of any authority conferred
by law to decree a forfeiture of property, suspend or cancel a license,
remove a person from office, or impose any other civil penalty. Such a
judgment or order may be included in the sentence.
e. The court shall state on the record the reasons for imposing the
sentence, including its findings pursuant to the criteria for withholding
or imposing imprisonment or fines under sections 2C:44-1 to 2C:44-3,
where imprisonment is imposed, consideration of the defendant's
eligibility for release under the law governing parole and the factual
basis supporting its findings of particular aggravating or mitigating
factors affecting sentence.
f. The court shall explain the parole laws as they apply to the
sentence and shall state:
(1) the approximate period of time in years and months the defendant
will serve in custody before parole eligibility;
(2) the jail credits or the amount of time the defendant has already
served;
(3) that the defendant may be entitled to good time and work credits;
and
(4) that the defendant may be eligible for participation in the
Intensive Supervision Program.
g. Notwithstanding the provisions of paragraph (2) of
subsection b. of this section, a court imposing sentence on a defendant who
has been convicted of any offense enumerated in subsection a. of
section 2 of P.L. 1994, c. 130 (C. 2C:43-6.4) may not sentence the
defendant to be placed on probation.
2C:43-3 Fines and restitutions
A person who has been convicted
of an offense may be sentenced to pay a fine, to make restitution,
or both, such fine not to exceed:
a.
(1) $200,000.00 when the conviction is of a crime of the
first degree;
(2) $150,000.00 when the conviction is of a crime of the second
degree;
b.
(1) $15,000.00 when the conviction is of a crime of the third
degree;
(2) $10,000.00 when the conviction is of a crime of the fourth
degree;
c. $1,000.00, when the conviction is of a disorderly persons
offense;
d. $500.00, when the conviction is of a petty disorderly persons
offense;
e. Any higher amount equal to double the pecuniary gain to the
offender or loss to the victim caused by the conduct constituting
the offense by the offender. In such case the court shall make a
finding as to the amount of the gain or loss, and if the record
does not contain sufficient evidence to support such a finding the
court may conduct a hearing upon the issue. For purposes of this
section the term "gain" means the amount of money or the value of
property derived by the offender and "loss" means the amount of
value separated from the victim or the amount of any payment owed
to the victim and avoided or evaded and includes any reasonable
and necessary expense incurred by the owner in recovering or
replacing lost, stolen or damaged property, or recovering any
payment avoided or evaded, and, with respect to property of a
research facility, includes the cost of repeating an interrupted
or invalidated experiment or loss of profits. The term "victim"
shall mean a person who suffers a personal physical or
psychological injury or death or incurs loss of or injury to
personal or real property as a result of a crime committed against
that person, or in the case of a homicide, the nearest relative of
the victim. The terms "gain" and "loss" shall also mean, where
appropriate, the amount of any tax, fee, penalty and interest
avoided, evaded, or otherwise unpaid or improperly retained or
disposed of;
f. Any higher amount specifically authorized by another
section of this code or any other statute;
g. Up to twice the amounts authorized in subsection a., b., c.
or d. of this section, in the case of a second or subsequent
conviction of any tax offense defined in Title 54 of the Revised
Statutes or Title 54A of the New Jersey Statutes, as amended and
supplemented, or of any offense defined in chapter 20 or 21 of
this code;
h. In the case of violations of chapter 35, any higher amount
equal to three times the street value of the controlled dangerous
substance or controlled substance analog. The street value for
purposes of this section shall be determined pursuant to
subsection e. of N.J.S. 2C:44-2.
The restitution ordered paid to the victim shall not exceed the
victim's loss, except that in any case involving the failure to
pay any State tax, the amount of restitution to the State shall be
the full amount of the tax avoided or evaded, including full civil
penalties and interest as provided by law. In any case where the
victim of the offense is any department or division of State
government, the court shall order restitution to the victim. Any
restitution imposed on a person shall be in addition to any fine
which may be imposed pursuant to this section.
2C:43-6. Sentence of imprisonment for crime; ordinary terms; mandatory
terms.
a. Except as otherwise provided, a person who has been convicted of a
crime may be sentenced to imprisonment, as follows:
(1) In the case of a crime of the first degree, for a specific term of
years which shall be fixed by the court and shall be between 10 years and
20 years;
(2) In the case of a crime of the second degree, for a specific term of
years which shall be fixed by the court and shall be between five years
and 10 years;
(3) In the case of a crime of the third degree, for a specific term of
years which shall be fixed by the court and shall be between three years
and five years;
(4) In the case of a crime of the fourth degree, for a specific term
which shall be fixed by the court and shall not exceed 18 months.
b. As part of a sentence for any crime, where the court is clearly
convinced that the aggravating factors substantially outweigh the
mitigating factors, as set forth in subsections a. and b. of 2C:44-1, or
the court finds that the aggravating factor set forth in paragraph (5) of
subsection a. of N.J.S. 2C:44-1 applies, the court may fix a minimum term
not to exceed one-half of the term set pursuant to subsection a., or
one-half of the term set pursuant to a maximum period of incarceration
for a crime set forth in any statute other than this code, during which
the defendant shall not be eligible for parole; provided that no
defendant shall be eligible for parole at a date earlier than otherwise
provided by the law governing parole.
c. A person who has been convicted under subsection b. or d. of N.J.S.
2C:39-3, subsection a. of N.J.S. 2C:39-4, subsection a. of section 1 of
P.L. 1998, c. 26 (C. 2C:39-4.1), subsection a., b. or c. of N.J.S.
2C:39-5, subsection a. or paragraph (2) or (3) of subsection b. of
section 6 of P.L. 1979, c. 179 (C. 2C:39-7), or subsection a., b., e. or
g. of N.J.S. 2C:39-9, or of a crime under any of the following sections:
2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1,
2C:18-2, 2C:29-5, who, while in the course of committing or attempting to
commit the crime, including the immediate flight therefrom, used or was
in possession of a firearm as defined in 2C:39-1f., shall be sentenced to
a term of imprisonment by the court. The term of imprisonment shall
include the imposition of a minimum term. The minimum term shall be fixed
at, or between, one-third and one-half of the sentence imposed by the
court or three years, whichever is greater, or 18 months in the case of a
fourth degree crime, during which the defendant shall be ineligible for
parole.
The minimum terms established by this section shall not prevent
the court from imposing presumptive terms of imprisonment pursuant
to 2C:44-1f. (1) except in cases of crimes of the fourth degree.
A person who has been convicted of an offense enumerated by this
subsection and who used or possessed a firearm during its commission,
attempted commission or flight therefrom and who has been previously
convicted of an offense involving the use or possession of a firearm as
defined in 2C:44-3d., shall be sentenced by the court to an extended term
as authorized by 2C:43-7c., notwithstanding that extended terms are
ordinarily discretionary with the court.
d. The court shall not impose a mandatory sentence pursuant to
subsection c. of this section, 2C:43-7c. or 2C:44-3d., unless the ground
therefor has been established at a hearing. At the hearing, which may
occur at the time of sentencing, the prosecutor shall establish by a
preponderance of the evidence that the weapon used or possessed was a
firearm. In making its finding, the court shall take judicial notice of
any evidence, testimony or information adduced at the trial, plea
hearing, or other court proceedings and shall also consider the
presentence report and any other relevant information.
e. A person convicted of a third or subsequent offense involving State
taxes under N.J.S. 2C:20-9, N.J.S. 2C:21-15, any other provision of this
code, or under any of the provisions of Title 54 of the Revised
Statutes, or Title 54A of the New Jersey Statutes, as amended and
supplemented, shall be sentenced to a term of imprisonment by the court.
This shall not preclude an application for and imposition of an extended
term of imprisonment under N.J.S. 2C:44-3 if the provisions of that
section are applicable to the offender.
f. A person convicted of manufacturing, distributing, dispensing or
possessing with intent to distribute any dangerous substance or controlled
substance analog under N.J.S. 2C:35-5, of maintaining or operating a
controlled dangerous substance production facility under N.J.S. 2C:35-4,
of employing a juvenile in a drug distribution scheme under N.J.S.
2C:35-6, leader of a narcotics trafficking network under N.J.S. 2C:35-3,
or of distributing, dispensing or possessing with intent to distribute on
or near school property or buses under section 1 of P.L. 1987, c. 101
(C. 2C:35-7), who has been previously convicted of manufacturing,
distributing, dispensing or possessing with intent to distribute a
controlled dangerous substance or controlled substance analog, shall upon
application of the prosecuting attorney be sentenced by the court to an
extended term as authorized by subsection c. of N.J.S. 2C:43-7,
notwithstanding that extended terms are ordinarily discretionary with the
court. The term of imprisonment shall, except as may be provided in
N.J.S. 2C:35-12, include the imposition of a minimum term. The minimum
term shall be fixed at, or between, one-third and one-half of the
sentence imposed by the court or three years, whichever is greater, not
less than seven years if the person is convicted of a violation of
N.J.S. 2C:35-6, or 18 months in the case of a fourth degree crime, during
which the defendant shall be ineligible for parole.
The court shall not impose an extended term pursuant to this
subsection unless the ground therefor has been established at a hearing. At the
hearing, which may occur at the time of sentencing, the prosecutor shall
establish the ground therefor by a preponderance of the evidence. In
making its finding, the court shall take judicial notice of any
evidence, testimony or information adduced at the trial, plea hearing, or
other court proceedings and shall also consider the presentence report
and any other relevant information.
For the purpose of this subsection, a previous conviction exists where
the actor has at any time been convicted under chapter 35 of this
title or Title 24 of the Revised Statutes or under any similar statute of the
United States, this State, or any other state for an offense that is
substantially equivalent to N.J.S. 2C:35-3, N.J.S. 2C:35-4, N.J.S.
2C:35-5, N.J.S. 2C:35-6 or section 1 of P.L. 1987, c. 101 (C. 2C:35-7).
g. Any person who has been convicted under subsection a. of N.J.S.
2C:39-4 or of a crime under any of the following sections: N.J.S.
2C:11-3, N.J.S. 2C:11-4, N.J.S. 2C:12-1b., N.J.S. 2C:13-1, N.J.S.
2C:14-2a., N.J.S. 2C:14-3a., N.J.S. 2C:15-1, N.J.S. 2C:18-2, N.J.S.
2C:29-5, N.J.S. 2C:35-5 who, while in the course of committing or
attempting to commit the crime, including the immediate flight
therefrom, used or was in possession of a machine gun or assault firearm
shall be sentenced to a term of imprisonment by the court. The term of
imprisonment shall include the imposition of a minimum term. The minimum
term shall be fixed at 10 years for a crime of the first or second
degree, five years for a crime of the third degree, or 18 months in the
case of a fourth degree crime, during which the defendant shall be
ineligible for parole.
The minimum terms established by this section shall not prevent
the court from imposing presumptive terms of imprisonment pursuant
to paragraph (1) of subsection f. of N.J.S. 2C:44-1 for crimes of
the first degree.
A person who has been convicted of an offense enumerated in this
subsection and who used or possessed a machine gun or assault firearm
during its commission, attempted commission or flight therefrom and who
has been previously convicted of an offense involving the use or
possession of any firearm as defined in subsection d. of N.J.S. 2C:44-3,
shall be sentenced by the court to an extended term as authorized by
subsection d. of N.J.S. 2C:43-7, notwithstanding that extended terms are
ordinarily discretionary with the court.
h. The court shall not impose a mandatory sentence pursuant to
subsection g. of this section, subsection d. of N.J.S. 2C:43-7 or N.J.S.
2C:44-3, unless the ground therefor has been established at a hearing. At
the hearing, which may occur at the time of sentencing, the prosecutor
shall establish by a preponderance of the evidence that the weapon used
or possessed was a machine gun or assault firearm. In making its
finding, the court shall take judicial notice of any evidence, testimony
or information adduced at the trial, plea hearing, or other court
proceedings and shall also consider the presentence report and any other
relevant information.
i. A person who has been convicted under paragraph (6) of
subsection b. of 2C:12-1 of causing bodily injury while eluding shall be sentenced
to a term of imprisonment by the court. The term of imprisonment shall
include the imposition of a minimum term. The minimum term shall be fixed
at, or between one-third and one-half of the sentence imposed by the
court. The minimum term established by this subsection shall not prevent
the court from imposing a presumptive term of imprisonment pursuant to
paragraph (1) of subsection f. of 2C:44-1.
2C:43-6.2. Probation; reduction of mandatory minimum term
1. On a motion by the prosecutor made to the assignment judge
that the imposition of a mandatory minimum term of imprisonment
under (a) subsection c. of N.J.S. 2C:43-6 for a defendant who has
not previously been convicted of an offense under that subsection,
or (b) subsection e. of N.J.S. 2C:39-10 for a defendant who has not
previously been convicted of an offense under chapter 39 of
Title 2C of the New Jersey Statutes, does not serve the interests of
justice, the assignment judge shall place the defendant on
probation pursuant to paragraph (2) of subsection b. of
N.J.S. 2C:43-2 or reduce to one year the mandatory minimum term of
imprisonment during which the defendant will be ineligible for
parole. The sentencing court may also refer a case of a defendant
who has not previously been convicted of an offense under that
subsection to the assignment judge, with the approval of the
prosecutor, if the sentencing court believes that the interests of
justice would not be served by the imposition of a mandatory
minimum term.
2C:43-6.3. Review of sentence
Any person who, on the effective date of this act, is serving a
mandatory minimum sentence as provided for by subsection c. of
N.J.S. 2C:43-6, who has not been previously convicted under that
subsection, and has not had his sentence suspended or been paroled
or discharged, may move to have his sentence reviewed by the
assignment judge for the sentencing court. If the prosecutor
agrees that the sentence under review does not serve the interests
of justice, the judge shall reduce the mandatory minimum term of
imprisonment without parole eligibility to one year or place the
person on probation pursuant to paragraph (2) of subsection b. of
N.J.S. 2C:43-2.
2C:43-7 Sentence of imprisonment for crime; extended terms.
a. In the cases designated in section 2C:44-3, a person who has been
convicted of a crime may be sentenced, and in the cases designated in
subsection e. of section 2 of P.L. 1994, c. 130 (C. 2C:43-6.4), in
subsection b. of section 2 of P.L. 1995, c. 126 (C. 2C:43-7.1) and in the
cases designated in section 1 of P.L. 1997, c. 410 (C. 2C:44-5.1), a
person who has been convicted of a crime shall be sentenced, to an
extended term of imprisonment, as follows:
(1) In case of aggravated manslaughter sentenced under subsection c. of
N.J.S. 2C:11-4; or kidnapping when sentenced as a crime of the first
degree under paragraph (1) of subsection c. of 2C:13-1; or aggravated
sexual assault if the person is eligible for an extended term pursuant to
the provisions of subsection g. of N.J.S. 2C:44-3 for a specific term of
years which shall be between 30 years and life imprisonment;
(2) Except for the crime of murder and except as provided in
paragraph (1) of this subsection, in the case of a crime of the first degree, for a
specific term of years which shall be fixed by the court and shall be
between 20 years and life imprisonment;
(3) In the case of a crime of the second degree, for a term which
shall be fixed by the court between 10 and 20 years;
(4) In the case of a crime of the third degree, for a term which
shall be fixed by the court between five and 10 years;
(5) In the case of a crime of the fourth degree pursuant to 2C:43-6c,
2C:43-6g and 2C:44-3d for a term of five years, and in the case of a
crime of the fourth degree pursuant to any other provision of law for a
term which shall be fixed by the court between three and five years;
(6) In the case of the crime of murder, for a specific term of
years which shall be fixed by the court between 35 years and life
imprisonment, of which the defendant shall serve 35 years before
being eligible for parole;
(7) In the case of kidnapping under paragraph (2) of
subsection c. of 2C:13-1, for a specific term of years which shall be fixed
by the court between 30 years and life imprisonment, of which the
defendant shall serve 30 years before being eligible for parole.
b. As part of a sentence for an extended term and notwithstanding
the provisions of 2C:43-9, the court may fix a minimum term not to
exceed one-half of the term set pursuant to subsection a. during
which the defendant shall not be eligible for parole or a term of
25 years during which time the defendant shall not be eligible for
parole where the sentence imposed was life imprisonment; provided
that no defendant shall be eligible for parole at a date earlier
than otherwise provided by the law governing parole.
c. In the case of a person sentenced to an extended term pursuant to
2C:43-6c, 2C:43-6f and 2C:44-3dd, the court shall impose a sentence
within the ranges permitted by 2C:43-7a. (2), (3), (4) or (5) according
to the degree or nature of the crime for which the defendant is being
sentenced, which sentence shall include a minimum term which shall,
except as may be specifically provided by N.J.S. 2C:43-6f, be fixed at or
between one-third and one-half of the sentence imposed by the court or
five years, whichever is greater, during which the defendant shall not be
eligible for parole. Where the sentence imposed is life imprisonment, the
court shall impose a minimum term of 25 years during which the defendant
shall not be eligible for parole, except that where the term of life
imprisonment is imposed on a person convicted for a violation of N.J.S.
2C:35-3, the term of parole ineligibility shall be 30 years.
d. In the case of a person sentenced to an extended term pursuant to
N.J.S. 2C:43-6g, the court shall impose a sentence within the ranges
permitted by N.J.S. 2C:43-7a. (2), (3), (4) or (5) according to the degree
or nature of the crime for which the defendant is being sentenced, which
sentence shall include a minimum term which shall be fixed at 15 years
for a crime of the first or second degree, eight years for a crime of the
third degree, or five years for a crime of the fourth degree during which
the defendant shall not be eligible for parole. Where the sentence
imposed is life imprisonment, the court shall impose a minimum term of 25
years during which the defendant shall not be eligible for parole, except
that where the term of life imprisonment is imposed on a person convicted
of a violation of N.J.S. 2C:35-3, the term of parole eligibility shall be
30 years.
2C:44-5. Multiple sentences; concurrent and consecutive terms
a. Sentences of imprisonment for more than one offense. When
multiple sentences of imprisonment are imposed on a defendant for
more than one offense, including an offense for which a previous
suspended sentence or sentence of probation has been revoked, such
multiple sentences shall run concurrently or consecutively as the
court determines at the time of sentence, except that:
(1) The aggregate of consecutive terms to a county institution
shall not exceed 18 months; and
(2) Not more than one sentence for an extended term shall be
imposed.
There shall be no overall outer limit on the cumulation of
consecutive sentences for multiple offenses.
b. Sentences of imprisonment imposed at different times. When a
defendant who has previously been sentenced to imprisonment is
subsequently sentenced to another term for an offense committed
prior to the former sentence, other than an offense committed
while in custody:
(1) The multiple sentences imposed shall so far as possible
conform to subsection a. of this section; and
(2) Whether the court determines that the terms shall run
concurrently or consecutively, the defendant shall be credited
with time served in imprisonment on the prior sentence in
determining the permissible aggregate length of the term or terms
remaining to be served; and
(3) When a new sentence is imposed on a prisoner who is on
parole, the balance of the parole term on the former sentence
shall not be deemed to run during the period of the new
imprisonment unless the court determines otherwise at the time of
sentencing.
c. Sentence of imprisonment for offense committed while on
parole. When a defendant is sentenced to imprisonment for an
offense committed while on parole in this State, such term of
imprisonment and any period of reimprisonment that the parole
board may require the defendant to serve upon the revocation of
his parole shall run consecutively unless the court orders these
sentences to run concurrently.
d. Multiple sentences of imprisonment in other cases. Except as
otherwise provided in this section, multiple terms of imprisonment
shall run concurrently or consecutively as the court determines
when the second or subsequent sentence is imposed.
e. Calculation of concurrent and consecutive terms of
imprisonment.
(1) When terms of imprisonment run concurrently, the shorter
terms merge in and are satisfied by discharge of the longest term.
(2) When terms of imprisonment run consecutively, the terms are
added to arrive at an aggregate term to be served equal to the sum
of all terms.
f. Suspension of sentence or probation and imprisonment;
multiple terms of suspension and probation. When a defendant is
sentenced for more than one offense or a defendant already under
sentence is sentenced for another offense committed prior to the
former sentence:
(1) The court shall not sentence to probation a defendant who is
under sentence of imprisonment, except as authorized by
paragraph (2) of subsection b. of N.J.S. 2C:43-2;
(2) Multiple periods of suspension or probation shall run
consecutively, unless the court orders these sentences to run
concurrently from the date of the first such disposition;
(3) When a sentence of imprisonment in excess of one year is
imposed, the service of such sentence shall satisfy a suspended
sentence on another count or prior suspended sentence or sentence
to probation, unless the suspended sentence or probation has been
violated in which case any imprisonment for the violation shall
run consecutively; and
(4) When a sentence of imprisonment of one year or less is
imposed, the period of a suspended sentence on another count or a
prior suspended sentence or sentence to probation shall run during
the period of such imprisonment, unless the suspended sentence or
probation has been violated in which case any imprisonment for the
violation shall run consecutively.
g. Offense committed while under suspension of sentence or
probation. When a defendant is convicted of an offense committed
while under suspension of sentence or on probation and such
suspension or probation is not revoked:
(1) If the defendant is sentenced to imprisonment in excess of
one year, the service of such sentence shall not satisfy the prior
suspended sentence or sentence to probation, unless the court
determines otherwise at the time of sentencing;
(2) If the defendant is sentenced to imprisonment of one year or
less, the period of the suspension or probation shall not run
during the period of such imprisonment; and
(3) If sentence is suspended or the defendant is sentenced to
probation, the period of such suspension or probation shall run
concurrently with or consecutively to the remainder of the prior
periods, as the court determines at the time of sentence.
h. Offense committed while released pending disposition of a
previous offense. When a defendant is sentenced to imprisonment
for an offense committed while released, with or without bail,
pending disposition of a previous offense, the term of
imprisonment shall run consecutively to any sentence of
imprisonment imposed for the previous offense, unless the court,
in consideration of the character and conditions of the defendant,
finds that imposition of consecutive sentences would be a serious
injustice which overrides the need to deter such conduct by
others.
i. Sentence of imprisonment for assault on corrections employee.
Any term of imprisonment imposed on an inmate of a State or county
correctional facility for an assault on a Department of Corrections
employee, an employee of a county correctional facility, an employee
of a State juvenile facility or a county juvenile detention facility,
county sheriff's department employee or any State, county or municipal
law enforcement officer while in the performance of his duties shall
run consecutively to any term of imprisonment currently being served
and to any other term imposed for any other offense committed at the
time of the assault.
2C:45-3. Summons or arrest of defendant under suspended sentence
or on probation; commitment without bail; revocation and
resentence
a. At any time before the discharge of the defendant or the
termination of the period of suspension or probation:
(1) The court may summon the defendant to appear before it or
may issue a warrant for his arrest;
(2) A probation officer or peace officer, upon request of the
chief probation officer or otherwise having probable cause to
believe that the defendant has failed to comply with a requirement
imposed as a condition of the order or that he has committed
another offense, may arrest him without a warrant;
(3) The court, if there is probable cause to believe that the
defendant has committed another offense or if he has been held to
answer therefor, may commit him without bail, pending a
determination of the charge by the court having jurisdiction
thereof;
(4) The court, if satisfied that the defendant has inexcusably
failed to comply with a substantial requirement imposed as a
condition of the order or if he has been convicted of another
offense, may revoke the suspension or probation and sentence or
resentence the defendant, as provided in this section. No
revocation of suspension or probation shall be based on failure to
pay a fine or make restitution, unless the failure was willful.
b. When the court revokes a suspension or probation, it may
impose on the defendant any sentence that might have been imposed
originally for the offense of which he was convicted.
c. The commencement of a probation revocation proceeding shall
toll the probationary period until termination of such
proceedings. In the event that the court does not find a violation
of probation, this subsection shall not operate to toll the
probationary period.
2C:45-4. Notice and hearing on revocation or modification of
conditions of suspension or probation
The court shall not revoke a suspension of sentence or probation
or delete, add or modify conditions of probation except after a
hearing upon written notice to the defendant of the grounds on
which such action is proposed. The defendant shall have the right
to hear and controvert the evidence against him, to offer evidence
in his defense, and to be represented by counsel.
