Bergen County Criminal Defense Attorneys
As if being sentenced to a custodial sentence is not bad enough, certain defendant’s, based primarily on the underline offense committed and their prior criminal record, may be subject to an extended term of incarceration. As you will see below, their are two different ways in which a defendant can be sentenced to an extended term; the first being mandatory based on the underline offense committed and the second being if the Judge does so using their discretionary powers. The Law Offices of Jonathan F. Marshall is a experienced criminal defense firm with a long track record of success. We have eight criminal defense attorneys on staff, including four former prosecutors. If you or someone you know has a question about any criminal or traffic offense please feel free to contact any one of our Bergen County Offices for a free initial consultation. Here is some important information with regards to an extended term, including the criteria which must be meet before such a sentence may be imposed.
Extended Term Eligibility: N.J.S.A. 2C:43-7g
The Judge may only impose a discretionary extended term sentence for first, second or third degree crimes. On the other hand, a mandatory extended term must be imposed for any defendant who is a repeat offender under the Graves Act (weapons offenses), a defendant who has previously been convicted of a specified offenses while in possession of a machine gun or assault firearm and who have previously been convicted of a Graves Act offense, or aggravated sexual assault, sexual assault, aggravated criminal sexual contact or criminal sexual contact offenses if certain criteria are met (see below).
Discretionary Extended Term
It is important to note here that before an extended term can be imposed, the prosecutor must make an application, with prior notice to the defendant that they will be seeking the extended term. Therefore, a post conviction hearing must be held and at that point, the defendant will have the right to heard and may contest any evidence offered and put-forth any evidence on the issue. However, before a Judge may impose an extended term sentence, the court must find that at least one of the three criteria’s has been established.
- Persistent Offender:
- It must be proven that the Defendant is twenty-one years or older at the time of the commission of the offense that the defendant is set to be sentenced on &
- The Defendant has previously been convicted on at least two separate occasions of two separate offenses &
- The defendant was at least eighteen years of age at the time of the commission of the two offenses referenced above &
- The most recent offense committed or the date of the defendant’s last release from confinement on that crime, whichever is later, must be within ten years of the date of the crime for which the defendant is currently being sentenced on.
- Professional Criminal:
- The Prosecution must prove that the defendant is considered a professional criminal. In order for the state to establish this, they must prove that the defendant committed a underline offense as as a part of continuing criminal activity. The continuing criminal activity in question must have involved two or more persons and the circumstances of the crime show that the defendant has knowingly devoted themselves to continuing criminal activity
- In Consideration of Something of Pecuniary Value
- It must be proven that the defendant committed the crime in consideration of anything of pecuniary value which was unrelated to the proceeds of the crime. This section will apply if the defendant procured the commission of the offense by payment or promise of payment of anything of pecuniary value.
Mandatory Extended Term:
There are three criteria’s which will automatically subject a defendant to an extended term of confinement.
- Certain Graves Act Cases:
- The first criteria which subjects an individual to a mandatory extended term was added when the Graves Act was created. Pursuant to the Graves Act, any one convicted of possessing or using a firearm must be sentenced to a mandatory minimum term of confinement.
- Use of Possession of Stolen Motor Vehicle while Committing Specified Crimes
- If the defendant, while committing or attempting to commit any one of the following crimes: aggravated manslaughter, manslaughter, aggravated assault, kidnapping, aggravated sexual assault, aggravated criminal sexual contact, robbery, burglary, eluding or fleeing a police officer, escape or possession of a weapon for the unlawful purpose to use it against another either used or was in possession of a stolen motor vehicle, the defendant must be sentenced to a mandatory term of confinement.
- Sexual Offender Basis
- If the defendant has been convicted of either aggravated sexual assault, sexual assault, aggravated criminal sexual contact or criminal sexual contact and the crime must have involved violence or the threat of violence and the victim was 16 years or less, the defendant must be sentenced to a mandatory time of confinement.
- Criminal Street Gang Related Activity
- If the defendant was knowingly involved in criminal street gang related activity. However, the underline crime must be committed for the benefit of or at the direction of, or in association with a criminal street gang.