rejecting the notion that “a right to be heard” at sentencing “is to be extended to some class of family members of any and all defendants and noting that judges retain discretion to decide who may speak “apart from those whose rights to speak are already established” but that the determination “must be accompanied by some expression of reasons sufficient to permit appellate review”
How later courts described this case
- rejecting the notion that “a right to be heard” at sentencing “is to be extended to some class of family members of any and all defendants and noting that judges retain discretion to decide who may speak “apart from those whose rights to speak are already established” but that the determination “must be accompanied by some expression of reasons sufficient to permit appellate review”
- noting that "mitigating factors that are A-4451-17T1 9 suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record."
- concluding that defendant has a right to present evidence that bears on an aggravating or mitigating factor
- noting that "mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record"
Written by the judges who cited it.
The opinion
Justice LONG,
concurring.
I am in agreement with the majority that this matter should be remanded to the trial judge for a statement of the reasons he refused to permit defendant’s stepfather to speak at sentencing. I write separately to express my concern over a thread that runs through the Court’s opinion with which I disagree and which I believe sends the wrong message.
In my view, the lights extended to crime victims by statute, N.J.S.A. 52:4B-34 to -38 and N.J.S.A. 2C:44-6, and later by the Constitution, N.J. Const, art. 1 § 22, are not pertinent to the question of whether and under what circumstances a defendant’s family member with relevant information should be permitted to speak at sentencing. Certainly, the presentation of a victim impact statement is a legal entitlement. But that entitlement does not suggest, even obliquely, a concomitant disentitlement on the part of defendant to produce a family witness where that witness has evidence bearing on a sentencing factor.
The majority insists on viewing a victim’s right to an impact statement as somehow diminishing a defendant’s application to present a relevant sentencing witness. That perspective bears with it a stigma of disapproval that I deem legally unwarranted and an incursion on the principle that our courts are open to all witnesses who have proper information to present.
Accordingly, if upon a proffer it appears that a defendant’s family member has evidence that bears on an aggravating or mitigating factor, the defendant must be permitted to present it. Indeed, if an aggravating or mitigating factor is rooted in the record, the judge has no discretion to refuse to consider it. State v. Dalziel, 182 N.J. 494, 504-05 , 867 A.2d 1167 (2005). That is not, *309 as the majority suggests, some rump process that has developed in our courts, but is at the very heart of a sentencing proceeding at which the judge is required to weigh aggravating and mitigating factors in order to craft an appropriate disposition. Obviously, if a person has evidence that will affect the aggravating-mitigating calculus, he should be heard.
To be sure, the judge is not without discretion in that realm. For example, upon a proffer, he may act to avert the cumulation of evidence. But that discretion does not extend to the barring of relevant evidence. Obviously, in ruling either way, the judge must explain his reasons, thus paving the way for appellate review. However, it goes without saying that a courtroom “practice” never to permit any defendant’s family member to speak would be arbitrary and unreasonable.
Chief Justice RABNER
joins in this opinion.