On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Michels and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1), (2); possession of a weapon, a handgun, for the purpose of using it unlawfully against the person of another, in violation of N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b. Pursuant to a plea bargain under which the State agreed to recommend that defendant be sentenced to a term of no more than fifteen years imprisonment, with five years of parole ineligibility, and to dismiss the weapons charges, defendant pled guilty to aggravated manslaughter, a lesser included offense of purposeful or knowing murder.
Defendant argues that the trial court abused its discretion in refusing to sentence her to a term within the range for a second degree offense. Such a Disposition is authorized by N.J.S.A. 2C:44-1f(2), which provides in pertinent part:
In cases of convictions for crimes of the first or second degree 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 the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
We find no abuse of discretion in the trial court's refusal to sentence defendant under N.J.S.A. 2C:44-1f(2). Although the record could support a finding that the mitigating sentencing factors substantially outweight the aggravating, it does not require a finding that the "interest of Justice" demands that defendant be sentenced as a second degree offender. The Legislature has established a thirty year maximum and twenty year presumptive term for aggravated manslaughter, rather than the twenty year maximum and fifteen year presumptive term applicable to other first degree offenses, which reflects a legislative judgment that
this is an especially serious first degree offense. This legislative judgment suggests that trial courts should be cautious in imposing downgraded sentences for aggravated manslaughter. Moreover, although defendant asserted that the victim had repeatedly raped her, the trial court was not required to accept this assertion. "When a trial court imposes a sentence based on defendant's guilty plea, the defendant's admissions or factual version need not be the sole source of information for the court's sentencing decision." State v. Sainz, 107 N.J. 283, 293, 526 A.2d 1015 (1987). The court also could consider defendant's statement to the police and the grand jury proceedings, which reflected more inculpatory versions of the offense. Consequently, it was proper for the court to sentence defendant on the premise that there was some question regarding the nature of her relationship with the victim and the precise circumstances of the killing.
Although the trial court did not abuse its discretion in refusing to sentence defendant as a second degree offender, we agree with defendant's contention that the trial court failed to identify an apparently applicable mitigating sentencing factor, namely, that "[t]he imprisonment of the defendant would entail excessive hardship to himself or to his dependents." N.J.S.A. 2C:44-1b(11). At sentencing defense counsel argued that imprisonment would impose an excessive hardship upon defendant's two children.*fn1 The prosecutor did not dispute the presence of this mitigating sentencing factor. Nevertheless, the trial court indicated that it had found only three mitigating sentencing factors, which did not include hardship to defendant's children. Moreover, the court did not give any reason for failing to find this apparently applicable mitigating factor. Hardship to children may be a significant mitigating sentencing factor, and if the court had considered this factor in conjunction with the other applicable
mitigating factors, it very well may have found justification for imposing a base term of less than fifteen years and a corresponding reduction in the period of parole ineligibility mandated by the Graves Act. Therefore, we remand to the trial court for reconsideration of defendant's sentence in light of this mitigating sentencing factor.
Defendant also argues that the trial court erred by failing to give her jail credit for the time she ...