affirming resentencing of defendant with full-blown AIDS who pled guilty to second-degree possession of pipe bombs from seven-year-custodial to five-year-probationary term, where imprisonment would entail excessive hardship to defendant because specific deterrence was no longer consideration in light of his undisputed physical incapacity and imminent death within six months
How later courts described this case
- affirming resentencing of defendant with full-blown AIDS who pled guilty to second-degree possession of pipe bombs from seven-year-custodial to five-year-probationary term, where imprisonment would entail excessive hardship to defendant because specific deterrence was no longer consideration in light of his undisputed physical incapacity and imminent death within six months
- noting uncontradicted prognosis of imminent death within six months due to AIDS-related disease constituted "idiosyncratic" situation
- holding that the "serious injustice" exception applied because the defendant was dying from the AIDS virus
- holding that the "serious injustice" exception applied because defendant was dying from the AIDS virus
Written by the judges who cited it.
The opinion
BROCHIN, J.A.D.
(dissenting).
Critical to my colleagues’ opinion is their holding that the facts which were brought to the attention of the sentencing judge at defendant E.R.’s re-sentencing would have justified a probationary sentence initially. I disagree with that holding and therefore respectfully dissent.
Defendant E.R. was convicted of two second-degree crimes. He was therefore subject to a “presumption of imprisonment applicable to first and second-degree crimes unless ‘having regard to the character and condition of the defendant, ... imprisonment would be a serious injustice which overrides the need to deter such conduct by others.’ ” State v. Jabbour, 118 N.J. 1, 6 , 570 A.2d 391 (1990) (quoting N.J.S.A. 2C:44-ld). The further teaching of Jabbour , which in my view is applicable to the present case, is the following:
____ [T]he impact of a prison term on the defendant is not an argument that finds favor in the sentencing guidelines. As well-intentioned as the lower courts may have been in emphasizing the effect on defendant, their emphasis was misplaced .... Incarceration, however, is the result ordained by the Code. The focusing in sentencing must be on the offense, not the offender. [Citation omitted.] At times adherence to the sentencing guidelines may seem harsh, but “that is the consequence of the legislative scheme....” State v. Dunbar, 108 N.J. 80, 83 , 527 A.2d 1346 (1987). In sum, the trial court erred by not following the sentencing guidelines.
[ Jabbour, supra, 118 N.J. at 8-9 , 570 A.2d 391 .]
Arguably defendant’s tragic situation warrants clemency. However, New Jersey law does not authorize judges to grant clemency. That is a power reserved for the executive branch. Our duty is to sentence in accordance with the New Jersey Criminal Code. Because, in my opinion, the sentence imposed on the defendant departs from the Code, I would reverse and reimpose the original sentence.