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State v. Merlino

*fn1: March 16, 1984.



Perskie, J.s.c.


This matter poses the question, apparently not heretofore considered, of whether the State may introduce evidence tending to establish that "there is a substantial likelihood that defendant is involved in organized criminal activity," N.J.S.A. 2C:44-1(a)(5), in order that the court may find and consider that fact as an "aggravating circumstance" for purposes of sentence, notwithstanding that the crimes of which defendant has been convicted have no relationship to "organized criminal activity." If the State may present testimony for this purpose, what is its burden of proof at such a hearing? Should there be any relaxation of the rules of evidence and, if so, to what extent?

Defendant was convicted in a nonjury trial of attempting an unlawful gift to a public servant to influence the performance of his official duties, N.J.S.A. 2C:27-6(b); 2C:5-1, a third degree crime, and bribery, N.J.S.A. 2C:27-2(c), a second degree crime.*fn2

In brief, defendant was arrested and charged with operating a motor vehicle while under the influence of alcohol. On the way to the police station and during the processing of the motor vehicle charge, defendant offered the police officer cash and other considerations in an attempt to effect his release without being charged with the motor vehicle offense. The processing of defendant at the police station was video-taped and most of the acts that formed the basis for the convictions were committed in full view of the camera.

Defendant more or less conceded the solicitations, but argued in defense that his state of intoxication at the time was such as to negate the mental state required for the commission of either of the offenses.*fn3 N.J.S.A. 2C:2-8(a).

The State brings this motion seeking a determination that there is a substantial likelihood that defendant is involved in organized criminal activity, so that this fact may be considered an "aggravating circumstance" for sentencing purposes. The State concedes that the offenses of which defendant has been convicted are "unrelated to his organized criminal activity." Its proffer is that law enforcement personnel and others will testify that defendant holds membership in an "organized crime family" operating in the Philadelphia and Atlantic City areas. This testimony apparently will include the results of electronic surveillance, the association of defendant with other "crime figures," and testimony of "informant information" regarding defendant's "membership and rank" within the organized crime family. The State asserts that a sentencing court may consider evidence that a defendant is connected with organized criminal activity even though the underlying convictions are not related to that activity, and that the proper focus of the reference to "organized criminal activity" is upon the offender rather than the offense.

The State further argues that the sentencing proceeding is not limited by "all of the procedural safeguards and evidential limitations of a criminal trial," and that therefore reliable and credible hearsay supplied or corroborated by surveillance and informant information is admissible to establish defendant's "organized criminal activity."

On the question of the applicable burden of proof, the State suggests that the plain language of the statute contemplates a discretionary weighing of factors in the determination of a "substantial likelihood" of involvement in organized criminal activity. The State relies upon the absence of any evidentiary standard in the statute in reaching the conclusion that the State "need only show it is more likely than not that there are organized crime ties," and that the court should consider this evidence if reliable and credible without reference to any specific burden of proof.

Defendant argues that a criminal statute must be construed narrowly and if the language is capable of more than one interpretation, the court must adopt the interpretation that limits rather than expands the plain meaning of the words. Defendant insists that the proper focus of this aggravating circumstance is upon the offense, not the offender, and that the State's concession that the offense is not related to organized criminal activity precludes any consideration of this circumstance by the court.

If the State is permitted to attempt to establish the aggravating circumstance, defendant argues that the State has the burden of proving its case by at least clear and convincing evidence, and possibly beyond a reasonable doubt. Lastly, defendant asserts that the rules of evidence should be strictly applicable at such a hearing without waiver or relaxation.

The importance of the determination the court is asked to make is immediately apparent from an analysis of the statutory sentencing scheme and an examination of the record in this case. In determining an appropriate sentence the court

is obliged to find and consider any aggravating and mitigating circumstances and to weigh such circumstances in the light of "an inexorable focus upon the offense." State v. Roth, 95 N.J. 334, 367 (1984). Indeed the statute requires a presumptive sentence of seven years for a crime of the second degree and four years for a crime of the third degree "unless the preponderance of aggravating factors or preponderance of mitigating factors . . . weighs in favor of higher or lower terms." N.J.S.A. 2C:44-1(f)(1). Additionally, in a case "where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands," the court may sentence a defendant convicted of a second degree offense as a third degree offender. N.J.S.A. 2C:44-1(f)(2). Accordingly the statute specifically and carefully requires a balancing of the aggravating and mitigating factors.

The court finds that the only aggravating factors established by the evidence at trial and from a review of the pre-sentence report are that defendant committed the offense against a police officer performing his duties, N.J.S.A. 2C:44-1(a)(8), and the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). There are, on the other hand, six mitigating factors that the court finds have been established: defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1); defendant did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2); there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense (defendant's intoxication) N.J.S.A. 2C:44-1(b)(4); defendant has no history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7); defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8); and defendant appears particularly likely to respond affirmatively to probationary treatment (he has a stable family and employment background), N.J.S.A. 2C:44-1(b)(10).

It is important to observe that the statute requires the court to impose a sentence of imprisonment for a second degree

offense "unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1(d). Such a conclusion cannot be reached by a simple preponderance of either aggravating or mitigating factors, for ...

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