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What Charges Have a Presumption of Incarceration in NJ?

January 27, 2024

A Comprehensive Guide to Presumptions of Incarceration and Non-Incarceration in New Jersey Criminal Law

Presumption of Incarceration Defense Attorneys Burlington County NJ

A criminal conviction in New Jersey may or may not result in a prison sentence. Often, it depends on the degree of the crime, among other factors. New Jersey law guides sentencing with a presumption of non-incarceration for first-time offenses of the fourth and third degrees. That means a convicted defendant will likely not go to jail for less serious violations than first or second degree crimes. For more serious offenses, like first degree murder or aggravated sexual assault, or second degree eluding or aggravated assault, the law creates a presumption of incarceration unless a serious injustice would occur in doing so.

Sentences for the highest-level crimes most probably include imprisonment. However, a presumption is not a guarantee. Though the legislative intent behind the law is to reduce the prison population, a judge still has the final say, weighing the competing interests before sending someone to jail. This is where an experienced criminal defense lawyer plays a pivotal role. Our team at Proetta, Oliver, & Fay is tested and proven in handling thousands of criminal cases involving defendants who face both types of presumptions, many of whom faced a presumption of incarceration plus a mandatory minimum prison term. Our criminal attorneys are zealous in our efforts to obtain the optimal result when defending clients who have been arrested in Pemberton, Delanco, Riverside, Mount Laurel, Evesham, Mount Holly, Lumberton, and throughout the Burlington County NJ area. Contact us now for assistance in a free consultation with a lawyer on our team by sending us a message or calling (609) 850-8284.

When a Presumption of Non-Imprisonment Applies in New Jersey

N.J.S.A. 2C:44-1(e) states that a court shall not sentence a first-time offender of a crime other than a first or second degree crime to imprisonment unless aggravating factors exist which warrant incarceration to protect the public or the defendant committed specific third or fourth degree crimes. A judge may deem imprisonment necessary to protect the public when the nature of the crime and the character, history, and circumstances of the defendant suggest confinement is essential for public safety. 

Crimes that Carry a Presumption of Incarceration in NJ

The code section 2C:44-1 also specifies third degree crimes of motor vehicle theft and strict liability vehicular homicide, eluding, fraud using government documents, aggravated assault, hit-and-run accidents, and identity theft crimes as exempt from a non-incarceration presumption. In addition, third or fourth degree crimes of bias intimidation or promoting street crimes fall under the same exception. Effectively, certain third and fourth-degree crimes do not carry the presumption of non-incarceration, even for a first-time offender.

Charges that Often Lead to Jail from Arrest to Conviction in NJ

As such, an individual charged with a first or second degree crime is more likely than one accused of lesser-degree crimes to face imprisonment from an arrest to the completion of their sentence since the 2014 Criminal Justice Reform Act (CJRA) effective in January 2017. The CJRA moved New Jersey from a bail system to a presumption of release for most defendants. Now, judges rely on pretrial information about the defendant in deciding whether to release or detain a defendant until their trial. Defendants charged with lesser crimes are more likely free to leave jail on their own recognizance until their next hearing date. In contrast, serious criminal offenders (homicide and other violent crimes) have detention hearings where judges may determine and impose conditions on their release, such as a GPS monitor or house arrest, or require them to stay in jail pending their trial.

A Presumption is Not a Guarantee

In sum, the presumption of incarceration or non-incarceration guides judges in sentencing defendants. Still, since every case has distinct facts, a judge may not mechanically apply the presumption merely on the degree of crime. Even when a third degree crime that would ordinarily fall under the presumption of non-incarceration is the sentencing subject, the circumstances of the crime may dictate otherwise.

Take a charge like shoplifting, where typically a third degree crime can lead to no prison for a first offense. A shoplifter with a clean record may still get a prison term when the crime facts include an attempted escape from the store security guard that caused grave injuries to the guard and innocent bystanders pushed to the ground by the fleeing shoplifter. Coupled with the fact that the shoplifter worked for an organized shoplifting ring, the judge could decide the shoplifter would likely commit further crimes involving victim injuries if not imprisoned. The converse is also true, however. The circumstances of the case can work in favor of the defendant or against them.

Avoiding Prison with Alternatives to Incarceration

When a criminal conviction falls under a non-incarceration presumption, a judge has alternatives to incarceration, such as probation, a diversionary program, or community service. When it is your first run-in with the law for a non-violent crime of the third or fourth degree, you may be on probation for a few years or enter the Pre-Trial Intervention program, or enroll in Drug Court to rehabilitate from substance abuse under strict supervision.

In addition, when a victim suffered little to no damages or the defendant paid restitution to the defendant for a minor crime, the sentence may be community service. In other words, a  defendant can avoid going to prison for criminal convictions subject to the presumption of non-incarceration in NJ law. For this reason, a defendant benefits greatly from an experienced legal representative in criminal law who can help them reduce their charges.

Plea Deals to Avoid Presumptions of Incarceration in New Jersey

Attorneys often expect an offer from the prosecutor to motivate a defendant to plead guilty in exchange for a lesser charge or reduced sentence. A plea bargain can reduce a criminal charge with a presumption of incarceration to one without it. And without the presumption, a talented criminal defense lawyer can push for diversion, probation, or other non-incarceration alternatives. Though a prosecutor may be less likely to bargain away incarceration for a crime presumed to include prison time, a skilled attorney can potentially convince them with evidence that the case is not a winner for the prosecution at trial.

More importantly, an excellent criminal defense attorney may argue to a judge why the sentence should not include imprisonment due to mitigating factors, such as the defendant’s cooperation with law enforcement, remorse, youth, home life, and other considerations excusing all or part of the defendant’s behavior or role in the crime. A convincing advocate can allow the judge to turn a presumption of incarceration into one without it.

Call a Mount Holly Defense Attorney to Challenge the Presumption in Your Case

No matter the crime’s seriousness, you should consult with a highly regarded criminal defense attorney at Proetta, Oliver, & Fay about your case. We have the requisite knowledge to advise you about the charges, sentence, and sentencing presumptions, so you can be prepared for possible outcomes to your criminal case and your defense to the charges. Even if a plea bargain does not help you avoid incarceration, you may still exonerate yourself at trial with the help of our experienced criminal defense lawyers’ help.

If the police arrested you, be sure you call our criminal defense firm immediately at (609) 850-8284 to ensure the state respects your legal rights. You benefit from having representation from a potential detention hearing through a possible trial. Let us serve as your zealous defenders no matter what charges you face.

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Our phones are answered 24 hours a day. We are available weekdays during business hours. We also meet with clients on evenings and weekends by request. We have four office locations conveniently located in Jersey City, Edison, Middletown, Cranford, Burlington, and Hamilton. All major credit cards are accepted.

Burlington Office

525 Highway 73,
Suite 104, Marlton,
New Jersey 08053
Phone: 609-850-8284
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Hamilton Office

100 Horizon Center
Boulevard, Hamilton,
New Jersey, 08691
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Point Pleasant Office

3828 River Road,
Suite A, Point Pleasant,
New Jersey 08742
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Middletown Office

180 Kings Highway,
Middletown Township,
New Jersey 07748
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