No More Than One Extended Term in Multiple Count Sentencing

Submitted by New Jersey Drug Crime Attorney, Jeffrey Hark.

N.J.S.A. 2C:44-3 outlines the criteria for an extended term of imprisonment at sentencing. These include:

• defendant convicted of first, second, or third degree crime + persistent offender + professional criminal (i.e. a [person working with 2+ people in an ongoing criminal enterprise)
• defendant committed the crime in exchange for money
• defendant is a second offender and used a firearm
• defendant convicted of a crime involving violence or the threat of violence against a victim 16 years old or younger

For all the considerations see the statute. Some crimes warrant mandatory extended term, and some warrant discretionary extended term. The recent appeal, State v. Dalton, decided July 27th, involves a sentence with both a mandatory and discretionary extended term for different counts of an indictment. The simple facts of the case involve a narcotics investigation in which an undercover detective bought cocaine from defendant on several occasions. The defendant received different sentences for different counts, all running concurrently. Sometimes laymen wonder why a defendant may fight the sentence of one particular count when he is already serving another sentences concurrently. These issues are important to a defendant, and sometimes make sense to fight because one concurrent sentence may permit parole, whereas another prevents it, or one may be overturned, while the other prevents release.

In this case the defendant appealed his extended term on a theory of improper evidence elicited from a third party through a police officer, and the court disagreed. However, the Appellate Division ultimately remanded for resentencing because of N.J.S.A. 2C:44-5(a)(2) which states “not more than one sentence for an extended term shall be imposed.”