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
Justices ALBIN and WALLACE,
dissenting.
We believe that certification was improvidently granted in this case and therefore would dismiss this appeal. We have reviewed thousands of petitions for certification since joining the Court. We do not recall once when an issue has arisen over a trial court improperly exercising its discretion to allow or deny a defendant’s family member to speak at sentencing. In deciding this case, we fear that the plurality opinion is likely to cause more problems than it will resolve.
The Appellate Division, in remanding to the trial court for a new sentencing hearing, stated: “While defendant may not have had an absolute right to have his stepfather speak, the state of the record satisfied us that the decision to refuse permission could reasonably be categorized as arbitrary.” Neither the plurality nor concurring opinion disputes that point. The precise standard that should guide the trial court in determining whether a family member should speak at sentencing is not settled today in light of the Court’s split.
*310 Given that the plurality and concurring opinions are discoursing on the propriety of the Appellate Division’s order, we add the following. In remanding to the trial court for consideration of possibly relevant evidence bearing on sentencing, the appellate panel should not have announced that it “had no quarrel with the quantum of the sentence ultimately imposed by the trial court.” The plurality opinion says much the same. Ante at 293, 997 A.2d at 200. Whenever a sentence is based on a potentially incomplete record—that is, so long as there is a possibility that relevant evidence on a mitigating or aggravating factor was improperly withheld from the trial court—it is premature to suggest that the sentence imposed was appropriate, even on the existing record.
Moreover, we cannot agree with the plurality opinion that the right of a victim to speak at sentencing conflicts with the defendant’s right to present relevant evidence that may inform the court in fulfilling its sentencing function. There may be times when live testimony of a defense witness at sentencing will do just that.
We expect that trial courts will continue to exercise their discretion at sentencing fairly, without regard to passion or prejudice, to the end that a just sentence will be imposed. Because none of the standards for certification are satisfied here, R. 2:12-4, we would rule that certification was improvidently granted. See State v. Bieniek, 200 N.J. 601, 612 , 985 A.2d 1251 (2010) (Long, J., dissenting).
For affirmance as modified/remandment—Chief Justice RABNER, Justices LONG, LaVECCHIA, RIVERA-SOTO and HOENS—5.
For dissent—Justices ALBIN and WALLACE—2.