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State v. Thomas

Superior Court of New Jersey, Appellate Division

June 12, 2019

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
KENNETH D. THOMAS, a/k/a CHRISTOPH D. THOMAS, Defendant-Respondent.

          Submitted May 15, 2019

          On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17-06-0548.

          Gurbir S. Grewal, Attorney General, attorney for appellant (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).

          Joseph E. Krakora, Public Defender, attorney for respondent (Al Glimis, Designated Counsel, on the brief).

          Before Judges Koblitz, Currier, and Mayer.

          OPINION

          KOBLITZ, P.J.A.D.

         The State appeals from a June 1, 2018 judgment of conviction imposing a probationary sentence on defendant Kenneth D. Thomas for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2).[1] Because the State has no authority to appeal from a legal third-degree sentence, we dismiss the appeal.

         Defendant also pled guilty to fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a). He admitted trespassing on his former girlfriend's property by refusing to leave and, on a separate day, hitting her on the head with a liquor bottle, causing a cut on the top of her head.

         The State unsuccessfully sought the imposition of a discretionary extended term under the persistent offender provision, N.J.S.A. 2C:44-3(a). The court found aggravating factors three, the risk defendant would reoffend; six, the extent of his prior criminal record; nine, deterrence; and fifteen, that the crime involved domestic violence and defendant had "committed at least one act of domestic violence on more than one occasion." N.J.S.A. 2C:44-1(a) (3), (6), (9) and (15). The court also found mitigating factors six, victim compensation; ten, defendant was likely to respond to probation; and twelve, cooperation with law enforcement. N.J.S.A. 2C:44-1(b)(6), (10) and (12).

          The victim wrote a letter to the judge seeking leniency for defendant and, at the sentencing hearing, said she did not want to proceed with the prosecution and did not want defendant to go to prison. Although the State brought to the court's attention the statutory presumption of incarceration after a finding of aggravating factor fifteen, the trial judge believed a prison sentence would create a "serious injustice, which overrides the need to deter such conduct by others." The trial judge found defendant to be "contrite" and "truly penitent." After balancing the relevant aggravating and mitigating sentencing factors, the victim's wishes, and defendant's "character and condition," the trial judge sentenced defendant to probation for a total of four years on both charges.[2]

         The State argues that it had the right to appeal this sentence, which it characterizes as "illegal." Our Supreme Court recently explained the State's authority to appeal a sentence:

In the context of sentencing, the State has the authority to appeal in two circumstances. The State may appeal where there is "express statutory authority" to do so. State v. Roth, 95 N.J. 334, 343 (1984); accord R. 2:3-1(b)(6) (permitting an appeal "as otherwise provided by law"). Alternatively, the State may appeal if the sentence imposed is illegal. State v. Ciancaglini, 204 N.J. 597, 605 (2011); see R. 3:21-10(b)(5) ("A motion may be filed and an order may be entered at any time . . . correcting a sentence not authorized by law including the Code of Criminal Justice.").
[State v. Hyland, __N.J.__, __ (2019) (slip op. at 9-10).]

         I. No ...


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