State v. Megargel

A.2d PLAINTIFF-APPELLANT, JERSEY, v. MICHAEL OF NEW STATE MEGARGEL, P. DEFENDANT-RESPONDENT. Argued March 1996. 1995 Decided November Prosecutor, Burzynski, Acting argued Teresa M. Assistant Andino, appellant (Joseph Acting County cause for F. Camden Prosecutor, attorney). argued respondent

Dennis Wixted the cause for Zucker {Sufñn Wixted, Zucker, attorneys; Jeffrey & Mr. Waller Wixted and C. brief). counsel and on the Henderson, General, Deputy Attorney argued

Carol M. (Debo- Attorney Jersey cause for amicus curiae General of New Poritz, General, Attorney attorney). rah T. Friedman, Defender, argued

Mark H. Assistant Public Deputy (Susan Beisner, the cause for amicus curiae L. Public .Defender Defender, attorney). Public opinion by of the Court was delivered

GARIBALDI, J. 2C:44-lf(2) (section 44-lf(2)) provides N.J.S.A that where clearly court convinced that the outweigh factors and the interest of de- mands, a court sentence a defendant who had been convicted degree appropriate of a first or second crime to a term to an appeal, offense one lower. this we must determine 44-lf(2) it sen- when applied section properly the court whether if he kidnapping, as defendant, first-degree convicted of tenced particu- Most second-degree kidnapping. convicted of had been properly found that the court whether larly, we must consider 44-lf(2), that “the interest of section statutory requirement second downgrade, was met. justice” demands a I victim, Harris, walking to his a.m., 1:00 Daniel Around Dodge Camden, four-door a white girlfriend’s house in when that four Harris testified of the street. stopped him in the middle “Freeze, Harris ex- vehicle, Police!” shouting men exited him, but that a white approached men three of the plained that defendant, hair, Michael P. as later identified male with blond only Megargel was the Caucasian stayed by the car. Megargel, men, Accord- except Megargel, wore hoods. group. All of the badges, a man Harris, police-type three of the men carried ing to Lee carried a silver- Lamont identified as co-defendant later laser-sighted 12- Megargel magnum carried .357 colored shotgun. gauge pump action After following of the incident: provided the account

Harris men, in which Lee an altercation ensued being stopped the four Megargel magnum, and in the head with the .357 struck Harris shotgun. men handcuffed Harris The four Harris with the struck group placed then Harris under arrest." The and told him he was continuing him. to beat Dodge, all the while in the four-door white Lee, Megargel car to a drove the Following the directions of Bridge. dragged Benjamin The men Franklin vacant lot near Megargel ground. him to the out of the car and threw Harris shotgun eyes. Lee then Harris’ a laser from shined sight near Harris’ and fired two shots removed the victim’s handcuffs clothing him. and continued beat The men removed his head. finally feigned Harris unconsciousness. left after The assailants identify plate license number of white Harris was able information to the authorities Dodge reported this four-door immediately following police spotted the incident. Merchantville Megargel driving stopped the car and it. was and Lee was They only occupants. police passenger. were the found that carrying magnum Lee was a .357 revolver with hollow-nose bul- possession Department lets. Also Lee’s were two of Correc- card, badges, Department tions a of Corrections identification a handgun permit, handguns 12-gauge purchaser’s and two five trunk, shotgun police fully shells. the car’s uncovered a 12-gauge pump shotgun sight loaded action with laser and two keys, Megargel, police found a set of winter coats. On including handcuffing key Harris and bill. identified $20.00 robbery kidnapping. participants the two as and He also kidnappers car as the one used and identified the robbers his. and identified one of the winter coats the car’s trunk as July Megargel On Lee and were indicted for first 2C:13-lb(l); degree kidnapping, first-degree robbery, N.J.S.A. 2C:15-1; possession purpose, of a firearm for an unlawful N.J.S.A 2C:39-4a; handgun, possession unlawful of a N.J.S.A N.J.S.A 2C:39-5b; bullets, 2C:39-3f; possession of hollow nose N.J.S.A 2C:12-lb(l); assault, second-degree aggravated N.J.S.A unlawful 2C:39-5c(l); shotgun, conspiracy possession of a N.J.S.A first-degree robbery, commit N.J.S.A 2C:5-2 and 2C:15-1. trial, jury granted

At the commencement of the the trial court (possession motion to dismiss count four of hollow nose State’s bullets) (unlawful counts, posses- Megargel, and four and six as to granted shotgun) trial court also sion of a as to Lee. The one, robbery handgun, with a state’s motion to amend count shotgun.” “and/or trial, First, magnum

At several facts became known. the .357 shotgun purchased by robbery had been Lee before the Second, employed Wagner kidnapping. Lee was at the Correc- Facility tional at Bordentown as a Senior Corrections Officer. badges assigned George Price testified that the were Lieutenant weapons belonged card also to Lee and that the identification carry qualified that Lee not to Lee. The Lieutenant added that on the father testified employee of defendant’s An firearms. p.m. at the incident, Megargel at about 10:00 saw night he employee The Megargel employed. was where Mobil Station badge and then showing police off a Megargel was that testified Gary Meyer, Megargel, A former friend got car. into white told him bargain, Megargel had testified, plea pursuant to a robbery on of assault and in the incident involvement about his Harris. an alibi de- trial. Lee asserted testified at

Both defendants old dropped off at an alleged he had been fense. He car Harris not when in Camden and was girlfriend’s house incident, up at his friend’s picked he was After the was attacked. driving. They dropped off Megargel 2:05 a.m. was house around when heading to the Mobil Station back Lee’s brother were suddenly pulled police. they over were working at the Mobil Defendant, he was Megargel, testified that until afternoon February 1992 from five on station anoth- working, Lee came to visit Megargel was midnight. While spending some Black. After employee, Bruce er Mobil station station, going to that he was Camden Lee announced time at the accompany Megargel him. testi- if he could Megargel asked thought it police officer and that Lee was fied that he believed The two borrowed go for a ride with him. “cool” to would be joined by they later to Camden where were Black’s car and drove friends. some of Lee’s Camden, stop- through group drove

Megargel testified that Megargel stealing money. their ping people on the street and going to group he had no idea that maintained that However, of the men had because all engage in such activities. attempt group. to leave guns, he claimed he was afraid asserted, testimony, throughout that al- his Megargel further Harris, got out on he never though present for the attack he was car, shotgun hit Harris. He and never or beat never had a incident and that he participate insisted that he did not all of the men carried but was afraid to because to leave wanted testi- Megargel called thirteen character witnesses who weapons. sentencing, good At the time of several fied to his character. others, witnesses, Megargel’s on as as wrote letters these well behalf. However, jury charges. jury convicted Lee of all only first-degree kidnapping, acquitting him Megargel of

convicted 2C:43-6d, the trial charges. Pursuant to N.J.S.A of all other Hearing and concluded that the Act court conducted a Graves Act court concluded that the applied to both defendants. The trial Megargel first-degree kidnapping and to applied Act for Graves Lee, first-degree robbery, possession of a firearm for an purpose aggravated assault. unlawful years, twenty-seven nine The trial court sentenced Lee to first-degree kidnapping and a consecutive parole for the without handgun. He also year possession unlawful of a five sentence for eighteen robbery conviction to an was sentenced on the armed term, disqualifier run year parole to year prison with a six imposed. The trial court concurrent with the other sentences into his conviction for first- merged all of Lee’s other convictions thirty- robbery. aggregate an sentence of Lee received years, parole. nine two without defendant, observed that imposing on the court first-degree charges except

Megargel acquitted on all had been that, although Megargel further observed kidnapping. The court accomplice, he could not vicariously liable for crimes of an could be (citing personal him. State factors not to be liable aff'd, (App.Div.1989) Rogers, N.J.Super. 565 A.2d 1128 (1991)). 590A.2d jury accepted view that the a different The trial court remarked Harris, victim, Daniel Megargel’s role in the incident than testimony. Consequently, trial court conclud- portrayed in his weigh the factors as if defendant had been ed that it could not was, fact, not he found of all the offenses for which convicted guilty. trial court component separately, kidnapping

Viewing the (1) (nature and circumstances aggravating factor concluded that offense) explained that apply Megargel. The court did not to Lee, robbery and assault the armed applied factor because this cruel, manner.” Ac- “especially depraved in an were conducted especial- kidnapping as an Legislature views knowledging that the only offense, nonetheless found first-degree the court ly serious deter) (9) (the applicable to defendant. need to aggravating factor however, following mitigating factors court, found that the record; (1) history/criminal prior no he had applied to defendant: recur; unlikely (2) circumstances was the result of his conduct unlikely to (3) he is indicated that his character and attitude (the sentencing court also found that commit another offense his array letters” written on “impressive had an defendant “young, impressionable, him all characterized as behalf which (4) favorably probation- naive”); respond trusting he would (5) treatment; cooperate enforce- willingness to with law ary his (6) ment; substantially influenced another was his conduct person more mature than defendant. that defendant was it believed

The trial court observed night going to occur the kidnapping was neither aware that something that it “would evolve into incident nor did he think Megargel The trial court surmised as severe as it did.” going on in those -of what was “least determinative factor circumstances.” “clearly that

Finding it convinced” that outweighed” aggravating ones and that “substantially it,” justice required the trial court sentenced “interest of second-degree kidnapping, a Megargel if he convicted of as were degree for which he had been convicted one lower than that crime 2C:44-lf(2). imposed The trial court a seven pursuant to N.J.S.A. year year parole disqualifier. term with a three sentence, Megargel’s arguing that the trial appealed

The State MegargePs downgrading in sentence abused its discretion court arguing cross-appealed, second-degree Megargel offense. applied to concluding in that the Graves Act the trial court erred unanimously trial Appellate affirmed the him. The Division applied Megargel. State v. findings that the Graves Act court’s (1995). However, N.J.Super. 651 A.2d 1051 Megargel, 278 respect section Appellate Division was divided with to whether 44-lf(2) majority Appellate properly applied. A of the had been downgraded imposed the trial Division affirmed the 568-573, N.J.Super. Judge court. Keefe dissented. A.2d 1051. majority Appellate Division viewed the issue

The of the dissenting its discretion. The whether the trial court abused court properly the issue to be whether the trial judge more viewed reviewing the applied legal principles. After had the correct court, that the trial findings Judge Keefe determined of the trial 2C:44-lf(2) and meaning of N.J.SA court had misconstrued “severity of the crime is now the most to consider that the failed Megargel, sentencing process.” in single important factor Hodge, (citing State v. supra, N.J.Super. at A.2d 1051 (1984)). Further, Judge Keefe 471 A.2d 389 95 N.J. sentencing judge identify what led to failed to remarked that the sentencing justice” that the “interest of demanded the conclusion crime one lower. as if he were convicted defendant appeal this on the basis 651 A.2d 1051. The State filed Id. at 2:2-l(a)(2). Appellate Division. R. the dissent in the

II reviewing is to sentences appellate role of courts (1) by the sentenc of discretion whether the exercise determine: grounded competent, upon findings of fact ing was based court (2) evidence; sentencing court reasonably credible whether discretion; exercising its legal principles applied the correct (3) such a facts to the law was application whether the conscience. State judgement it shocks clear error of (1984). 334, 363-65, reviewing court Roth, A 471 A.2d 370 95 N.J. judgement for that of the its own may not substitute 494 365, Judges exercise discretion 370. who 471 A.2d

court. Id. sentencing remain free from principles of comply with the guessing.” Ibid. “second fear of 370, “in Roth, 364, we held that 471 A.2d supra, 95 N.J. at sentencing ... court [the appellate review of context of [the] mitigating] factor [aggravating and whether [the] determine must] in the record.” competent credible evidence upon were based following held that the existence Roth have cases Several by “compe supported mitigating factors must be aggravating and Pillot, 115 tent, reasonably State v. N.J. credible evidence.” See Jarbath, 394, 404, (1989); 114 v. 560 A.2d 634 State Sainz, (1989); 526 A.2d 107 N.J. A .2d 559 State 5,1, (1987); N.J.Super. A.2d 545 Morgan, State v. (1984). 491 A.2d682 (App.Div.) den. 99 N.J. certif. defendant, on we find that Reviewing imposed sentence mitigating aggravating factors findings of the trial court’s in the record. We competent credible evidence based on were aggravating and accurately weighed those the court also find that 2C:44-l(a) (b) (listing the mitigating See N.J.S.A factors. may sentencing judge consid aggravating mitigating factors a defendant). on imposing sentence er findings of of the trial court’s dispute the correctness We do not dispute that aggravating- factors. Nor do we mitigating and outweighed aggravating substantially mitigating factors 44-lf(2) Thus, statutory requirement of section first factors. Rather, the second dispute centers on whether was met. justice met, namely, the interest of requirement was whether downgrade. demanded

Ill 2C:44-lf(2) pertinent part: states in N.J.SA degree where the court is for crimes of the first or second In cases of convictions outweigh factors convinced that the substantially clearly the court demands, and where the interest of defendant to a term to a crime of one lower than that of the appropriate for which crime he was convicted. unambigu This court has held that the statute is clear and “[i]f only interpretation, ous on its face and admits one we need delve deeper Legislature’s no than the act’s literal terms the to divine Butler, (1982). intent.” State v. 89 445 A .2d 399 plain language The of that the statute makes it clear a downgraded, two-step sentence to be a test must be satisfied. (1) sentencing judge clearly The that must be convinced the mitigating substantially outweigh aggravating factors the factors (2) justice downgrade. and the of must interest demand the 2C:44-lf(2). Section position supported by legislative history.

That the New Jersey originally adopted Criminal Law Revision Commission 2C:43-11, by entitled “Reduction of Conviction Court to Lesser Degree Adopting “unduly of Offense.” the harsh” standard found (entitled 6.12, § in the Model Penal “Reduction of Conviction Code Misdemeanor”), Degree Felony to a or a the Court Lesser of following provision: Commission drafted the having regard a of an to the If, offense, Court, when has been convicted the person of nature and circumstances of the offense and to the and character the history is of that it would harsh to sentence the offender defendant, the view be unduly judgement for a included accordance with the the Court enter lesser Code, accordingly. I: [The Code, New Penal Vol offense impose Jersey Penal Final the New Criminal Law Commis- Code, Jersey Report Report of (1971) added) (emphasis ]. sion, to N.J.S.A. 2C:43-11 commentary explained that “it is inevit- The disposition and a able that cases will arise where a conviction unduly respon- will seem harsh to those accordance with the Code Code, Jersey IP. New Penal Vol. sible for its administration.” Commentary, Report Jersey New Law Final Criminal Commission, 323(1) (1971). commentary The stated that “powers necessary are both and desirable features of of reduction 323(2). Id. system sentencing.” Like the Model Penal Code, N.J.S.A. 2C:43-11 required the to determine whether Court particular by reviewing fair the nature and circum- sentence was history and character stances of the offense Code, Jersey Penal the New to the Model defendant. Similar test adopted step harsh” provision originally “unduly a one correct presumptive sentence was the one evaluate whether However, final version New under circumstances. (the Justice, 98-4 Jersey N.J.S.A 2C.T-1 to Code of Criminal Code), N.J.S.A did not include 2C:43-11. rejected adopted Legislature step a one test and instead 44-lf(2), satisfy requires court

section which that “clearly prong The court convinced two test. must substantially outweigh ones downgraded demand a sentence.” the interest 2C:44-lf(2). N.J.S.A however, history

Unfortunately, legislative nor neither the the any insight meaning plain language provide to the of of the statute language of phrase justice,” the “in the interest of nor does the the downgraded suggest those under which a statute circumstances appropriate. sentence would be definitional section Code, 2C:1-14, phrase fails the “in the N.J.S.A to define interest justice.” to define of Five other sections of the Code also fail (dismissing holding abeyance or in phrase. See N.J.SA 2C:l-3f in pending charge appears “where it that such action is (authorizing Superi- justice”); of interests N.J.SA 2C:20-21b injunctions in or Court to “take other actions as are enter or justice”); (providing probationary interest of N.J.SA 2C:43-6.2 mandatory offender if term for first time Graves Act justice”); “does not N.J.SA 2C:43-6.3 serve interests “prosecutor (resentencing of Graves Act offender where the agrees not that the sentence under review does serve interests justice”); (providing payment N.J.S.A 2C:104-7c additional material witness in confinement “when the interests of require.”) law, however, concerning guidance offers what a

Case some determining whether defendant’s sen court should consider 44-lf(2). downgraded In State tence should under section Jones, 604, N.J.Super. (App.Div.1984), A.2d 1063 defen- dant, accounts-payable manager an Trapper for Canadian Fur $720,000 Id. Corporation, corporation. embezzled over from the 606, pled guilty second-degree at 485 A.2d1063. The defendant Id. at deception pursuant plea bargain. theft ato exchange guilty plea, agreed A.2d 1063. for the the state period imprisonment years recommend a not to exceed five 605-06, Id. at along with restitution. 485 A.2d 1063. The sen tencing judge if decided that the defendant should be sentenced as 44-lf(2). Id. third-degree pursuant convicted of a crime to section sentence, determining at 485A.2d1063. In court trial including: noted a number of defendant’s con harm; employer’s perpe duct caused no serious conduct aided the crime; record; prior tration of the no conduct was the result of unlikely again; unlikely circumstances to occur to commit another offense; imprisonment unduly and extensive would be excessive. Ibid. The trial court also found three factors to exist: employer serious offense which defendant caused her to suffer loss; great advantage position financial defendant took of a trust; Weigh and the need to deter. 485 A.2d 1063. Id. factors, ing years all of the the court sentenced defendant to five probation, days county jail payment of restitution. Ibid. court,

Reviewing imposed by Appel the sentence the trial improperly weighed late Division determined that the trial court aggravating mitigating the factors and failed to focus on the Ibid. The Jones court explained seriousness of the offense. that important question the trial court “never dealt with the of whether justice Ibid. downgrade.” the interests of demanded a The Legislature money by has mandated that the amount of taken the defendant, court, explained in the results a crime of the second Ibid. degree. Appellate Division held that this mandate compelling “should be followed in the absence of some reason reason, Ibid. contrary.” Finding Appellate no such 609, Id. at resentencing. Division reversed and remanded for 485 Accordingly, downgrading A.2d 1063. of a defendant’s sentence 498 44-lf(2) compelling occur should not absent “some

under section Jones, 607, N.J.Super. supra, 485 A.2d 1063. 197 at reason.” Further, Appellate Division has held that “trial courts downgraded imposing sentences” those should be cautious in penalty Legislature had an enhanced cases in which attached 51, 48, Mirakaj, N.J.Super. particular for a offense. State 268 (1993). that, despite Mirakaj, In the court held 632 A.2d 850 ones, outweighed fact that the who pled interest of did not demand that a defendant crime) (a aggravated manslaughter first-degree be sen guilty to 44-lf(2). pursuant second-degree as a offender to section tenced 50, Legislature The court that Id. at A.2d 850. noted punishment aggravated manslaugh a more severe for established first-degree (Aggravated for ter than other offenses. assault thirty years twenty year a maximum term of with a carries term, first-degree carry twenty presumptive while other offenses term). year year presumptive maximum with a fifteen Ibid. The aggravated Legislature that court concluded that the determined 50-51, manslaughter was at particularly serious crime. Id. Thus, explained, 850. trial courts should exercise A.2d the court imposing downgraded aggravated assault. caution sentences for A.2d Id. at 850.

IV So, justice?” phrase “in what meant the interest Keefe, agree Judge argues the “in We do not with who justice” analysis “in or interest of should similar to the out” 2C:44-l(d). Roth, Megargel, under determination N.J.S.A. (Keefe, J.AD., supra, N.J.Super. at 651 A.2d 1051 Roth, dissenting). aggravated defendant was convicted Roth, probationary assault to a term. sexual and sentenced supra, 95 N.J. at A.2d 370. reversed The Court holding presumption the trial remanded court there was a 358-59, imprisonment second-degree first and crimes. Id. application of addressed the 471 A.2d 370. The Roth decision 2C:44-l(d), which reads: N.J.S.A the first or who has been convicted of a crime of

The court shall deal with person having regard imposing degree unless, a sentence of second by imprisonment that his character and condition of the it is defendant, opinion injustice such which overrides the need to deter would be a serious imprisonment conduct others. added) 2C:44-l(d) (emphasis ]. [N.J.S.A 2C:44-l(d) pre created a The Roth Court noted that N.J.S.A anyone a first or sumption imprisonment convicted of Roth, second-degree supra, 95 N.J. at 471 A.2d 370. crime. 2C:44r-l(d) operated to explained that N.J.S.A The Court further Id. at preserve of discretion for the court. a residuum however, observed, power that this A.2d 370. The Court statute, exception to the that “is to be exercised under the narrow is, ‘having regard condition of the when to the character and opinion imprisonment his is of the [the court] defendant injustice the need to deter would be a serious which overrides 2C:44-l(d)). by’others.’” (quoting such conduct Ibid N.J.S.A only ‘truly in is met explained standard “[t]his Court Ibid, (citation extraordinary unanticipated circumstances.’” omitted). 2C:44-l(d) injustice” standard found N.J.S.A

The “serious justice” standard found as the “in the interest of not the same 44-lf(2). First, language is differ- of the two statutes section 2C:44-l(d) and condition of the the “character ent. N.J.S.A 44-lf(2), In section specifically are to be considered. defendant” character or condition. there is no reference to the defendant’s Second, qualitatively different situa- the two statutes address two 2C:44-l(d) nonim- governs imprisonment versus tions. N.J.S.A 2C:44-lf(2) condition, section more serious while prisonment, a convicted of a crime should governs or not a defendant whether if of a crime one lower. sentenced as convicted Hodge, recognized that the standards Finally, we State Hodge, supra, 95 N.J. at governing are different. the two statutes since the Code Hodge noted that 471 A.2d 389. The Court downgrading, it must have high even for requires a standard give confidence to the higher standard to contemplated an even sug- Hodge in This Court’s decision out” decision. Ibid. “in or downgrading governing of a only the gests not that the standard governing the decision from that sentence is different defendant’s term, the standard but that defendant to a custodial to sentence Therefore, injustice” is high. “serious downgrading is governing justice.” equivalent of “in the interest not the determining in a trial court consider What then should should degree or conviction be a defendant’s first second whether 44-lf(2)? there ‘We realize that downgraded pursuant to section perfect sentence.” guide pen the to the no calculus that will is Nonetheless, 379, 471 A.2d 389. Hodge, supra, 95 N.J. 44:lf(2), apply must the basic sentencing a court under section under the applicable all decisions principles that are therefore, reflect the paramount that the sentence It is Code. be the severity the of the crime now Legislature’s intention that Hodge, sentencing process. important factor in the single most the offense 471 A.2d 389. The focus on supra, 95 N.J. at formulating a sentence. rather than the offender is inexorable Roth, paramount A.2d 370. The reason supra, 95 N.J. at 471 severity protection assure the the of the crime is to we focus on degree higher the public and the deterrence of others. crime, protection and the more greater public need for need for deterrence. crime, must evaluating severity of the the trial court pertaining nature of and the relevant circumstances

consider the Every arises in different factual circum to the offense. offense may make surrounding circumstances of an offense stances. The offense, suggesting that a very degree to a thus it similar lower example, may appropriate. For a defen downgraded sentence be by placing pocket having gun his hand his dant who simulates LaFrance, robbery. first-degree State v. can be convicted (1990). crime, however, is 569 A.2d 1308 Such N.J. Hutson, v. State N.J. robbery. very second-degree similar to (1987). 222, 230, 526 A.2d 687

Although crime the focus of the is sentence, personal considered in the facts to the defendant Jarbath, A.2d 559 State sentencing process. (1989), role in the incident Courts should consider a defendant’s the need to deter him from further crimes and to determine corresponding protect public from him. Was the need mastermind, follower, loyal accomplice an whose defendant mentally problematic, or an individual who is shared intent In Jarbath forming necessary criminal intent? incapable of mentally imprisoning severely retarded the Court found that a injustice. a woman would constitute serious repeatedly of the has been identified all facets Deterrence justice important system as one of the most factors criminal key proper understanding of sentencing. Deterrence is the to the B.A.R., & State in the Interest C.AH. public. 89 protecting the (1982). 326, 334, N.J. “concept The of deterrence 446 A.2d 93 society” individual with the needs the need balance general fundamental to the balancing process that is basic and “a “[Djemands 336, 446 A.2d 93. of the criminal law.” Id. at scheme gravity strengthened proportion in direct to the for deterrence are of the offense and the deliberateness and harmlessness offender.” Id. at 446 A.2d93. general to consider sen requiring a court addition is a consider whether there

tencing principles, a court must downgrade in the inter compelling reason to defendant’s sentence Jones, N.J.Super. 44-lf(2). supra, 197 justice under section est of A.2d 1063. The differences between N.J.SA 2C:44- 485 1(d) 44-lf(2), clear that because the “serious section make it extraordinary “truly and unantic injustice” requires standard presumption of to exist to overcome the ipated circumstances” to the apply standard should imprisonment, a somewhat lower 1(d) defendant’s sentence. N.J.SA downgrade decision to 44— 44-lf(2). downgrade decision to a defendant’s and section justice” limited to those should be “in the interest “compelling” rea provide can in which defendant circumstances Jones, supra, N.J.Super. at downgrade. for the sons to, separate in addition reasons must be A.2d 1063. These outweigh from, substantially “mitigating factors which factors,” applicable to a court finds the trial 44-lf(2). prong section under the first defendant Furthermore, Legislature has in those cases which particular penalty for conviction of a provide an enhanced acted offense, requires compelling downgrade of that offense more Legisla downgrade of an offense for which reasons than the By description of penalty. enhanced its has not attached an ture sentence, Legislature has indicated that an enhanced Maguire, crime. State v. contemplated for this sentence was (1980). Mirakaj, supra, 268 N.J.Su A.2d 294 (“The 50-51, Legislature has established per. at 632 A.2d 850 year twenty year presumptive term for thirty maximum and a judge legislative manslaughter ... which reflects aggravated offense”). especially serious first ment this is an circumstances, extreme trial courts must exercise Under such caution. decisions,

Finally, sentencing the trial court as in all clearly identify the relevant describe must balancing these factors. State how it exercised its discretion (1987). Kruse, balancing must be 521 A.2d 836 Such N.J. case, example, in the trial court forth in the record. For this set justice why the interest of should have set forth its reasons why downgrade. A trial court should also state demands a range for the sentencing the defendant the lowest convicted, is not a more particular offense for which he was downgraded sentence under section appropriate sentence than 44-lf(2).

V find that the trial court’s Applying those standards we justice demanded defendant’s sen- conclusion that the interest downgraded tenee be degree to a crime pursuant one lower 2C:44-lf(2) N.J.S.A was in error. The only trial court’s reference justice” the “interest of requirement occurred at the end of the sentencing proceeding. The trial court stated “In the interests of justice, I sentence the defendant to a term of incarceration as if he were convicted second-degree of a offense.” The court failed.to identify reasons, any compelling otherwise, or in addition to and separate from, factors, explain why which would interest of downgraded demanded a sentence.

Moreover, the court’s consideration of the nature of defendant’s cursory crime was acknowledgment mere that defendant was —a first-degree convicted of kidnapping. There was no reference to Legislature’s treating intent first-degree kidnapping as a particularly subject serious penalty. crime to an enhanced

First-degree kidnapping under ordinary the Code mandates an imprisonment term of thirty years fifteen to presumptive with a twenty years. 2C:13-l(c). term of N.J.S.A. penalty for first-degree conviction of kidnapping under the Code is far more severe imposed than for that on other first offenses. 2C:43-6a(l) N.J.S.A 2C:43-6. N.J.S.A “Except states that as provided, person otherwise who has been convicted of a crime imprisonment be sentenced to as follows: the case of a first-degree, crime of the specific years for a term of which shall by be fixed years.” the court and shall be between 10 and 20 2C:43-6a(l). fact, “[kjidnapping, N.J.S.A only which was law, misdemeanor at legislation common has become modem one Jersey offenses.” The New severely punished of the most Code, Commentary, Penal Vol. IP. Report Final to the Criminal Commission, (1971). Law Revision Jersey legislative New case law judgement reflects the Brent, kidnapping is a serious offense. State v. 137 (1994). 644 A.2d 583 “It is legislature evident that the intended harsh kidnappers; treatment it is further evident maximizing kidnapper’s incentive to return the victim un harmed, legislature realized that the risk of harm attendant Brent, danger supra, of the crime.” principal is the

upon isolation Masino, 120, (quoting State 94 N.J. at 644 A.2d 583 v. 137 N.J. 446, 466 A.2d(1983)). incident had a limited role agree defendant more We of was he was unaware what did Defendant claimed than Lee. for left he not night would have had feared going to occur that years old at the time safety. Defendant his own with, unduly impressed influenced may have incident and been co-defendant, Lee, moi’e mature and whom by, who was authority. cer position Defendant believed held a of defendant on Harris. tainly assault was riot the mastermind behind However, accomplice crime very least an to a defendant was at the of period over a was terrorized and beaten in which the victim kidnapping convicting Megargel first-degree jury time. he no idea “rejected Megargel’s attempt to convince them that had any on criminal were about to embark that Lee and his Mends behavior, Mght out and under subsequently that he acted (Keefe, dissenting). N.J.Super. 651 A.2d 1051 orders.” 278 at exceptional “or one find an defendant We do not defendant ” Roth, up ‘engulfing circumstances.’ caught in a maelstrom of (quoting Leggeadrini, supra, 95 471 A.2d 370 State (1977)). Focusing on the serious 380 A.2d 1112 75 N.J. (first-degree kidnapping, which carries nature of the crime recalling twenty years), that this Court presumptive term of downgrading trial exercise caution when has demanded that courts penalty, an we an that carries enhanced sentence for offense downgrade of nothing suggests that a conclude that in the record second-degree appropriate. offense was defendant’s sentence Harris, Moreover, attack despite limited role on defendant’s degree lower downgrade to a crime one defendant’s sentence punish severely those legislative frustrate intent would first-degree kidnapping. convicted

VI of downgrading for an We conclude that the standard 44-lf(2) is two- purpose under section fense first, pronged: “clearly court the must be the convinced” mitigating “substantially” outweigh ones, factors aggravating the second, justice” and the court must find that “interest demands that the downgraded. justify- sentence be The reasons ing downgrade a “compelling,” must be something addition from, separate mitigating substantially factors that outweigh aggravating factors. Legislature’s

The creation of lengthier presump- a sentence and term imprisonment tive for first-degree kidnap- a conviction of ping a mandates that trial court special should exercise caution court, downgrading such before a serious offense. The trial must principles applicable sentencing adhere to all matters. Thus, the primarily gravity trial court must on focus crime.

VII 2C:13-lc(l) gives N.J.S.A court discretion to sentence thirty years defendant between fifteen and for first- 2C:44-lf, kidnapping. Under if mitigating N.J.S.A preponderate factors, aggravating factors over the terma lesser presumptive can imposed range than be within the established. (1994). Balfour, See State v. N.J. A.2d 1249 The correctly trial court found substantially that the outweigh addition, impressive factors. an array family friends all characterized defendant as “naive impressionable.” Finally, role in defendant had a limited participate incident and have felt forced to all of the because weapons. Accordingly, although assailants had the facts of this downgrade case do not from warrant of defendant’s sentence first-degree offense, second-degree to a offense we find that defendant is entitled be sentenced to the minimum term for a person first-degree kidnapping, namely, years. convicted of fifteen subject Act, he parole ineligibility is to the Graves his Since would years. five Appellate reversed. Defen- judgment of the Division is However, judge trial no because the sentence is vacated. dant’s trial bench, remand the matter to the rather than longer on the opinion, we have resentencing in with this accordance court to a hereby sentence defendant carefully the record and reviewed years year parole disqualifier. term of with five fifteen STEIN, J., dissenting. Roth, (1984), 334, 471 A this Court .2d 370

In State v. appellate principled review durable and standard established a premise must “[w]e Its was that of criminal sentences. basic appellate judg judgment of for trial court avoid the substitution 365, 370, power ment,” explained that the id. 471 A.2d and we at modify appellate courts was to be exer to sentences reserved to only facts the is such a application the of the to law cised “when judicial judgment conscience.” Id. of that it shocks the clear error 364, clearly emphatically stated 471 A.2d 370. The and Court sentencing of trial respect the determinations its commitment to law: judges who follow the among judgment of the most solemn and serious Pronouncement of formula will eliminate this require of a trial court. No word ever responsibilities justice courts to that is no room for trial or appellate ment be done. There recognition of or action the of sentences: “Judicial consider public perceptions against in a cannot be tolerated our defendant particular upon public opinion (1982). 444 15, v. 89 N.J. A.2d 569 4, criminal State system." Humphreys, judges a of able to thrive in “fortitude, hardy are confident that our are people We Craig L.Ed. 1249, 1255, 1546, 67 S.Ct. 91 climate.” U.S. Harney, (1947). new a delicate balance between discretion fixed Our Code reflects judiciary sentencing. is its trial An fulcrum. When conscientious independent

judges with set forth in the Code exercise discretion in accordance the principles second-guessing. us need no and defined fear today, they 370.] [Id. at A.2d judges appeal, this trial disposition Based on the Court’s may strength Criminal assigned question to Part the sentencing defer their determinations. Court’s commitment Here, judge presided six-day jury that over defendant’s trial carefully methodically explained, tracking applicable trial (Code), Jersey provisions Justice of the New Code Criminal basis for his decision to sentence defendant with accordance 2C:44-lf(2) appropriate N.J.S.A to a term for an one offense convicted, lower than the offense of which defendant was first-degree kidnapping. Concluding mitigating that factors substantially outweighed aggravating the sole factor limited, enterprise defendant’s involvement the criminal trial seven-years imprisonment, court sentenced defendant years parole eligibility. panel three without A divided Appellate affirmed, majority observing Division “[a]s court, reviewing respect we must such a reasoned exercise judgment by N.J.Super. judge.” conscientious (1995). 557, 566, 651 A.2d 1051

Although agreeing trial with the court’s conclusion that “the substantially outweigh factors” noting that “defendant had a limited role the incident and participate felt have forced to all of the because assailants had weapons,” ante at 673 A.2d at Court nevertheless judgment substitutes its for that of imposes the trial court and fifteen-years imprisonment years sentence of parole five with ineligibility. Id. at 506.

I unpersuasively attempts justify The Court to the of substitution its own sentence for the on of a that of trial court the basis purported legal downgraded Court a error: the holds sen that 2C:44-lf(2) requires finding only tence under N.J.SA not that a outweigh mitigating aggravating, the factors the but in that addi justice” very by tion the “interests of for the first time —defined “compelling separate the as from of Court reasons” the balance factors, aggravating mitigating and ante at 673 A.2d at require downgrade. a The the Court concludes that 268— in failing any “compelling trial court erred articulate reasons” mitigating aggravating other than the balance of and examination, alleged “error,” support closer its sentence. That on weight imposed by opinion. the on The cannot bear it the Court’s support by on the trial court “compelling reason” relied obvious jury’s charges on of acquittal of defendant downgrade was the the robbery, first-degree first-degree conspiracy to commit robbery, possession of a purpose, unlawful possession of a firearm an assault, charges aggravated of handgun permit, three without demonstrating shotgun, jury the verdict ¡possession of a and jury Megargel’s of the version persuasively that the believed incriminating rejected version. the victim’s more incident and difficulty concluding no in that Appellate panel had The Division jury compelling on verdict was a trial court’s reliance the the sentencing determination: independent factor in its Megargel’s of We are mindful that has a different version the Prosecutor Megargel that of on the of Harris was one involvement based primarily testimony Megargel his him. testified that However, the who beat and terrorized persons him the that drove as the others ordered was to drive and he car, only participation charges jury Megargel firearm The of on the assault, robbery to. acquittal judge’s sentencing jury not Harris’ The testimony. indicates that the did accept jury the as did. reasons indicate that he viewed evidence sentencing judge’s The reasons reflect conscientious comprehensive analy- legal factors and the facts, sis of applicable judge good in a to make an accurate since he analysis The was principles. position including judge. witnesses, heard of the was trial He the testimony findings Megargel. His as to the facts and the of Lee and Harris, testimony given great weight. meaning jury’s of the must therefore verdict notwithstanding this However, We also do not minimize dreadful crime. judge’s logical and find in face of the seriousness of the we cannot crime, sentencing judge have no could reasons that reasonable imposed comprehensive Ghertler, (1989) [State ]. [ ] [ 114 N.J. 555 A.2d 553 v] [383,] 388, this sentence. judge’s finding of of thin The as to the interest not out trial plucked meaning jury judge The verdict corroborated his view by air. analyzed Megargel judge. had a limited involvement as the trial He concluded judge strong significant mitigating criminal The found many enterprise. foregoing sentencing offers factors as described his reasons. articulately judgment judge’s sentencing strong for the exercise of and discretion support justice. reviewing reaching court, As a we must his conclusion as to the interest judga judgment exercise a conscientious such reasoned respect N.J.Super. [ 278 565-66, 1051.] A.2d many Concededly, court not in so words that the trial did state all charges kidnap- than jury’s acquittal Megargel other Megargel had been influenced and ping confirmed its view perpetrators, Megargel’s dominated Lee and the other and that incident, completely passive role the his non-involvement the youth robbery, inexperience, assaultive conduct or the his character, outpouring good justified the of attesting letters to his imposition appropriate degree of a to a crime one lower kidnapping. Surely, jury convicting than reliance the on verdict robbery, conspiracy, assault, of aggravated weapons- Lee offenses, possession acquitting Megargel while those of same charges, implicit in the trial court’s determination that the justice required downgrade. interests Had trial court explicit, compelled made that reliance the Court would have been candidly state resentencing to that it was defendant because the disagrees prefers Court with the trial court’s sentence and to impose its own. justification rejection

The Court one offers additional for its sentence, trial noting punishment court’s authorized first-degree kidnapping ranges thirty for years from fifteen to term, twenty-year presumptive 2C:13-lc, awith N.J.S.A 2C:44- lf(l)(a), compared fifteen-year presumptive with term and ten range twenty-year first-degree authorized for most other Accordingly, crimes. compel the Court observes that even “more ling required downgrade carry reasons” are for the of an offense ing an required enhanced sentence than other first- would Legislature, offenses. Ante at .2d at 673 A 267. The however, aggravated manslaugh has or kidnapping not excluded scope sentencing downgrade provisions; ter from the to the contrary, preceding paragraph very same subsection of Code, 2C:44-lf(l), presumptive sets forth the terms for kid napping aggravated manslaughter, making unmistakable Legislature’s subject intention to make those offenses sentencing downgrade authorization forth in set 2C:44- N.J.S.A lf(2). “compel-

That the Court not find the trial court’s reasons enough” ling support downgraded its sentence does not consti- error, legal tute nor failure to to the adhere Code’s 510 opinion merely a difference of between It

principles. reflects evidence, very reviewing the court that heard the Court and anticipated opinion in Roth when we of that we kind of difference the Code’s second-guess judges trial who adhere to pledged not to 365, at 471 A.2d370. sentencing principles. 95 N.J. about the real-time

An is additional observation warranted years of fifteen with five sentence between Court’s difference of seven court’s sentence years ineligibility and trial parole con- parole ineligibility. Parole statistics years years three granted parole majority of offenders are firm that the sentenced they eligible, suggesting that two hearing at the first for which are this Court’s sentence and years real-time difference between is the by Appellate trial The Division’s observa- imposed court. persuasive: sentencing is tion about that difference jail sentencing judge not here not or freedom. If the had sentenced The issue is degree judge Megargel as a second would have offender, imposed probably have fifteen for the first crime. This would been years minimum sentence ineligibility term. as a first offender would The defendant parole with a five year ineligibility term. have service five year been very likely paroled upon sentencing judge’s should the central issue whether we reverse Thus trusting, defendant, determination that this an impressionable, reasoned carefully eighteen crime old whose involvement in the was offender, and naive first year state than serve three rather than five others, years prison. much less should judicial than five. A reversal is not shocked three rather by years Our conscience sentencing substituting guessing judge’s determination our by second would be judgment for his. 1051.] at 651A.2d [ 278 N.J.Super. II Roth, A.2d supra, v. Justice State sentencing format based on explained that the Code’s O’Hem sentencing, presumptive pursuant to which a model of degrees sub-categories, legislature of crimes down into establish would break first sentence would be determine how much the offender severity, presumptive succeeding aggravating or convictions, increased define specific circum in truly unanticipated factors, provide “[o]nly extraordinary judge be to deviate from the stances would the presumptive permitted range finding aggravating or the narrow an permitted by ordinary beyond mitigating factors.” (quoting Punishment, [Id, 354-55, 471 A.2d 370 Fair and Certain Report of (1976)).] Sentencing Task Force on Criminal the Twentieth Fund Century designed uniformity Code’s structure is to achieve scope judicial sentence and to narrow the discretion requiring sentencing judges prescribed to sentence within statuto ry ranges, statutory presumptive and to terms unless shorter or longer required sentences mitigáis are because ing factors. Hodge, As we observed in State 95 N.J. (1984): A.2d “The Code upon is a restraint the discretion judges in individual cases. can But there be no without predictable degree

a uniformity sentencing____ of of The loss may price justice.” unfettered discretion be the evenhanded Thus, second-guess our commitment not to the exercise of discre by judges Code, Roth, tion sentencing in accordance with the supra, 365, by 95 N.J. at 471 qualified pragmatic A.2d is the recognition that Code severely the limits the circumstances sentencing judges significant which have discretion to exercise. provisions permit sentencing N.J.S.A 2C:44-1 includes judges depart precise sentencing to guidelines from Code’s prescribed under certain conditions. Pursuant to N.J.S.A 2C:44- 1(d), a court is mandated to sentence offenders convicted of first- second-degree “unless, or imprisonment crimes to a term regard defendant, having to the character and condition of the it is opinion imprisonment injustice of the that his would be a serious by which overrides the need to such deter conduct others.” However, permitting we have characterized the standard for non second-degree first- custodial sentences for offenders as “ex narrow,” tremely “applied only to be under circumstances that are Jarbath, ‘truly extraordinary unanticipated.’” State v. 114 (1989) Roth, supra, (quoting N.J. 559 95 at A.2d 370). acknowledges A.2d opinion The Court’s that the allowing sentencing impose for to standard courts a non-custodial second-degree on considerably first- or offenders is more stringent governing downgrading than that of sentences under 2C:44-lf(2). 499-500, Ante at 673 A.2d at 266. presumption of non-incarcera 2C:44-le establishes a

N.J.S.A. than first- or of crimes other tion for first offenders convicted offenses, impose term second-degree but authorizes the court “having regard if the nature and circumstances imprisonment history, of the character condition of the offense and defendant, necessary is opinion imprisonment ... it is of Gardner, public.” in State v. protection We noted (1989), high that must be standard 113 N.J. 551 A.2d may provision properly be invoked: of the Code met before that against first who offender Therefore, imprisonment before presumption degree guilty overcome, be court to a of the third crime pleads convincing” higher is than “clear be a standard that must persuaded by has been is And once the necessary. presumption evidence that incarceration according guidelines. must overcome, statutory the defendant be sentenced [Id. 981.] 551 A.2d 517-18, at by comparison, downgrade N.J.S.A 2C:44- By authorized lf(2), implicate the “in or out” decision— because it does not governed is whether the defendant to be incarcerated —should standard, acknowledges. opinion rigid less as the Court’s 499-500, provides: A.2d 266. The Ante at statute court for crimes of the first or where the In cases of convictions second outweigh convinced that the factors substantially clearly of the court sentence the demands, factors and where the interest degree of of one than that the to a term to a crime lower defendant appropriate for which he was convicted. crime 2C:44-lf(2)J [N.J.SA history legislative Although legislative sparse, the obvious the is objective sentencing judges already required by to authorize was impris- second-degree offender to to sentence a first- or Code onment, impose prison appropriate to to an offense one a term specific statutory if conditions are satisfied. The degree lower sentencing judge “clearly convinced that is that the condition substantially outweigh fac- by tors,” correctly agrees that the found a condition Court general is that the to have been met. The condition trial court downgrade. justice” demands the “interests of notes, however, As the justice” Court the term “interests of defined in Code, neither the definitional of N.J.S.A. section 2C:1-14, in nor five other sections of the Code in which that phrase 496, is used. Ante or a variant 673 A.2d at 264-265. inescapable conclusion is Legislature’s that the reliance on the 2C:44-lf(2) justice” “interests of N.J.S.A. standard marks one of the rare significant circumstances Code which a residuum sentencing of judges, discretion is reserved to trial discretionary power only by sentencing exceeded discre court’s tion to concurrently. consecutively defendants or Cf. Ghertler, State v. (1989) 393-94, A.2d 553 (reversing Appellate imposition Division’s of concurrent rather than prescribed by consecutive observing sentences trial court and disagreement that sentencing mere justify over results not does appellate preference substitution of sentencing court’s over that court). by sentencing chosen

That we have not imposed heretofore reviewed a sentence authorization, pursuant downgrade despite to the right the State’s see N.J.S.A appeal, 2C:44-lf(2), suggests that the discretion sentencing judges by downgrade conferred on provision has contrary, not been abused. To compiled by statistics Administrative Office of during the Courts reveal 1992 and second-degree of total 1198 first- and offenders were 2C:44-lf(2) pursuant sentenced as if they the offense committed serious, downgrades, was one less but of that number 1178 98.3%, imposed or pursuant presumably were to and authorized plea agreements. Only twenty sentencing downgrades statewide during years imposed pursuant those same two were to a trial court’s exercise of discretion. See Memorandum from Division, Criminal Practice Administrative the Courts Office of (Feb. 1996) (on Supreme file Clerk with of New Court Jersey). insignificant statistically That use the Code’s down- authorization, grade scarcity reported combined with the deci- concerning sentencing N.J.S.A applications sions courts’ 2C:44- lf(2), grant discretionary authority confirms the limited downgrade justice” spar- sentences in the “interests of has been apparent justifi- No by bench. the Criminal Part

ingly exercised disapproval over a cast a shadow of exists for the Court to cation rarely by sentencing power invoked trial courts. discretionary so Court’s conclusion that disagreement no with the I have by justice” contemplates a determination “interests reference to balancing aggrava goes beyond that court managed has But that the Court ting mitigating factors. all is a to to add the balance “compelling reasons” for defendant establish requirement that the 502, 267, that it ante at downgrade, 673 A .2d at a “standard” Jones, decision, State v. single Appellate a Division extracts from (1984), 607, 604, even N.J.Super. and that 485 A.2d required downgrade a sentence compelling “more reasons” are to prescribed en Legislature for has an which the an offense 502, penalty. Ante at The 673 A.2d at 267. substantive hanced enough justify compelling downgrade a content of the reasons analysis. from Court’s conspicuously absent however, suggests, on the offense rather The Court that focus sentence, formulating proper the offender is critical than role in the be considered in the defendant’s offense that Ante assessing at 266. need for deterrence. at A.2d through implies jury’s that the determination its That concession participant kidnap in the verdict that defendant was an incidental conduct, weapons robbery, or ping, in the assaultive uninvolved of possession kidnapping characterized the that facilitated and fense, justify “compelling the down could constitute reason” sentence, in the graded especially where the trial court concurs jury’s passive role was and incidental. assessment that defendant’s opinion accepts rejects nor neither the contention Court’s offense, participation in the verified defendant’s limited reasons,” verdict, simply jury “compelling the standard of meets observing [on forth its reasons the trial court failed “set why downgrade,” the interest demands record] concluding categorically ante at that the A.2d downgraded sentence was error. analysis

I unpersuasive. find the Court’s I conclusion am record, reading convinced that a fair of this combined with the trial court’s careful and conscientious application princi of Code sentence, ples explain downgraded justify an affirmance of “compelling newly sentence even under reasons” test adopted by statutory the Court to add content to the interest-of- justice standard. Affirmance of the sentence does not mean that itself, imposed the Court would have the same sentence but rather signified would have precept the Court’s adherence to the basic appellate judgment “[w]e must avoid the substitution of Roth, judgment.” trial court supra, 95 N.J. at 471 A.2d 370. effectively Court’s substitution of its own impos sentence that only years es two more “real time” than the trial court’s sentence disagreement reflects a rooted not in sentencing princi the Code’s ples, perception precise but rather in a different about the term of incarceration that defendant should serve. Given the trial court’s scrupulously principles, obvious effort to adhere to Code Court’s warning downgraded intercession be viewed as a sentences, rare, subject searching appellate however are review may readily appellate be set aside if the court concludes that a longer appropriate. sentence is more judgment Appellate

I would affirm the upholding Division imposed by the sentence the trial court.

For reversal and vacation —Chief Justice WILENTZ HANDLER, POLLOCK, O’HERN, Justices GARIBALDI COLEMAN —6.

For STEIN —1. affirmance —Justice

Case Details

Case Name: State v. Megargel

Court Name: Supreme Court of New Jersey

Date Published: Mar 27, 1996

Citation: 673 A.2d 259

Court Abbreviation: N.J.